High Attention Is No Safe Harbour in EU Trademark Confusion Analysis
Recent EU trademark decisions confirm that the public’s level of attention is only one element in the global assessment of likelihood of confusion, not a switch that determines the outcome by itself. In Kutxabank v EUIPO – Klarna Bank (K.) (T‑105/25, 13 May 2026), the General Court showed that confusion may still arise among a highly attentive public where the services are identical and the signs are strongly similar visually and identical phonetically. Conversely, greater attention can sharpen distinctions where the goods or services are more remote or the overall differences between the signs are clear. For practitioners, it is rarely enough to label buyers as “professional” or the products as “expensive”; the evidence should also address purchase frequency, decision-making steps, the cost of a wrong choice and whether less attentive groups form part of the relevant public.
That inquiry does not overlap completely with dilution or unfair advantage. Article 8(5) EUTMR does not require proof of source confusion; it asks whether the relevant public will establish a link between the signs and whether the later use harms distinctiveness or repute, or takes unfair advantage of the earlier mark’s attraction. In Obelix (T‑24/25, 13 May 2026), the General Court again stressed the need to assess reputation and the mental link globally, while the EUIPO Board of Appeal’s BLACKBERRY/blueberry decision of 2 April 2026 combined strong reputation, proximity between the signs and a functional relationship between the goods to find unfair advantage. The practical overlap is easy to miss: highly attentive consumers may avoid mistaking commercial origin, yet be more likely to notice the borrowing from a reputed mark and transfer its image or qualities to the later sign. Confusion and dilution claims should therefore be built separately—one around purchasing context and source perception, the other around reputation, the path of association, image transfer and likely changes in market behaviour.
