The Commercial Court in Yemen issued a trademark judgement in a cancellation action. A cancellation filed by Henkel Kommanditagesellschaft auf against trademark "FAX" registered in the name of the Turkish company Evyap Sabun Yag Sanayi ve Ticaret A. S. was dismissed by the Yemeni court.
The Plaintiff claimed the existence of similarity between the challenged trademark "FAX" in class 3 in the name of the Turkish proprietor with the Plaintiff's trademark "FA" in class 3. It also claimed that such resemblance is caused through imitation by the Defendant.
The Defendant, represented by Abu-Ghazaleh Legal Services countered the allegations of the Plaintiff and emphasized the fact that resemblance between two letters ("F" & "A") in both trademarks, would not necessarily entail similarity that is in violation to the law. The Defendant added that overall appearance and get-up of its trademark would not lead to conclude similarity with the Plaintiff's mark. Finally, the Defendant requested dismissal of the claim and issuance of an order against the Plaintiff to bear all legal costs.
The Court summarized the facts and requests in this case, and moved to study the similarities between trademarks "FAX" and "FA". The court then explained that jurisprudence is well settled that the criterion for similarity is not derived from the similarity of letters, but rather, it is the general appearance and get-up associated in the minds as a result of the formation and distribution of the letters or symbols or image. The court further added that finding similarity between two trademarks requires regarding the trademarks in whole, not regarding the elements combining the mark.
As a result, the court negated any similarity between the mark of the Plaintiff and that of the Defendant despite the fact that the latter's mark contains two identical letters constituting the mark of the Plaintiff. The decision elaborated that Defendant's mark is distinctive and different from that owned by the Plaintiff whether in its overall appearance or in the manner and form its letters are written. This distinctiveness, the court continued, has made the difference evident between both marks in a way negating any confusion by the public. The decision explained that a person may easily distinguish, without close examination, between the two marks.
The court ruled in favor of the argument and requests raised by the Defendant and dismissed the suit filed by the plaintiff and charged it with legal costs.