Similarity of goods and services

To know whether one mark encroaches on another, it must be determined whether the goods and services are similar. Similarity of goods and services is therefore a pivotal notion in assessing trademark infringement and in oppositions — the French counterpart of the “relatedness of the goods” factor in the US DuPont analysis.

The factors

Goods and services may be similar if they share:

• the same nature;
• the same purpose (finalité);
• the same method of use and the same needs served;
• the same distribution channels;
• a complementary or competing relationship;
• the same relevant public;
• the likelihood of being supplied by the same company.

French decisions apply these factors with notable rigor. In INPI, March 28, 2024, NL 23-0186, the Institute walked category by category: eyewear was held dissimilar to surveillance equipment because the goods differ in nature, object and purpose, come from different operators (opticians versus security-equipment retailers), and are not united by a close and obligatory link — the French test for complementarity, stricter than the loose “relatedness” arguments often accepted in US practice.

The opponent must argue, not assert

Similarity must be demonstrated, not proclaimed. In INPI, June 30, 2023, OP 22-2976, an opponent who merely asserted that numerous services “obviously” fell within the broad category “education; training; entertainment; sporting and cultural activities” lost on those services: absent reasoned argument, the similarity — not being self-evident — was not established.

Remember that classes prove nothing: similarity is assessed on the factors above, never on shared class membership.

See also: similarity of signs, likelihood of confusion, principle of specialty.

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