Banking and real estate services dissimilar

General Court, 10 June 2015, Case T-514/13, AgriCapital Corp. v. OHIM

The General Court has found once again that banking and financial services on the one hand, and real estate services on the other, are dissimilar. Even in the event of almost identical marks an opposition will therefore fail without there being any need to even consider likelihood of confusion. The same had been held in the General Court’s decision of 11 July 2013 (T-197/12, Metropolis Inmobilarias v. OHIM). Here, the General Court expressly ruled that OHIM’s finding of a low degree of similarity between those services was incorrect.

The finding of “dissimilarity” is further contained in OHIM’s Opposition Guidelines as well as in the “similarity database” here.

Nevertheless, banking services and insurance services are regularly found to be similar. In this regard, the OHIM Guidelines read: “Most banks also offer insurance services, including health insurance, or they act as agents for insurance companies with which they are often economically linked”. With that in mind, it must surprise if any similarity of real estate services and banking services is categorically denied based on the understanding that they are carried out “by separate branches” and not “on the same premises”. To differentiate by “premises” is surprising when many financial and real estate transactions are at least initially carried out online. In many jurisdictions, banks now often have their own real estate agencies, promote these on their own premises and websites, and co-brand or indeed brand them with the banks’ main branding. For example:

In addition, real estate affairs include real estate evaluation, which is a financial service provided by banks and not real estate agencies. Whilst expressly referring to these services as part of real estate affairs, the Court did not offer any separate arguments for them.

Whether one agrees or disagrees, for now it must be assumed that OHIM and the General Court will maintain that real estate services are dissimilar to banking services. This means that banks have to rely on dilution provisions to prevent their names being appropriated by real estate providers, which means having to provide voluminous evidence of reputation in any opposition or cancellation proceedings concerning real estate.