Eva and Eve Not Confusingly Similar!?!
Philip Morris Products has a brand of cigarettes called Eve, and has a number of trademarks registered in Israel for the brand, including word marks and flowery designs.
Atsionerno Droujestvo Bugartabac Holding filed a mark (Israel Trademark No. TM 196741) for cigarettes called Eva, with a heart replacing the V.
Philip Morris filed an opposition, but neither side submitted evidence.
The Israel Deputy Commissioner of Patents and Trademarks, Noach Shalev Shmulovich, applied the classic Triple Test:
1. Appearance & Sound
2 Distribution Channels and Customers
3. Everything else of relevance
In his ruling, Shmulovich explained that the 2nd and 3rd considerations are subservient to the sound and appearance, and, since Cigarettes are ordered over the counter, the relevant consideration is the enunciation of the mark rather than its appearance.
Having established that the relevant consideration is the sound, Shmulovich went on to explain that the Aktsionererno mark is pronounced EH-va, rhyming with feather, whereas the Morris brand is pronounced EEv, as in beaver, thereby establishing that the marks are phonetically distinct and there is no likelihood of confusion. Consequently, he allowed the Bulgarian mark to be registered and awarded them costs.
Since no side submitted evidence, it is difficult to fault Shmulovich, but as a native English speaker, I would certainly pronounce Eva to rhyme with beaver. I asked my Israeli wife (whose English pronunciation is appalling) to read the mark and she read it the same way that I would.
I would further argue that even if greater weight is given to the sound, the appearance is also important as the seller has to select a box and frequently smokers point to the packet they want. I assume that the similarity in choice of font is also not arbitrary. there seems, therefore, to be inequitable behavior with the Bulgarian company intentionally causing confusion and attempting to capitalize on the monopoly of the other party.