23Furthermore, it argues, the judgment of the Court of First Instance in Case T-169/02 Cervecería Modelo v OHIM — Modelo Continente Hipermercados (NEGRA MODELO) [2005] ECR II-505, relied upon by OHIM, and in which it was held, at paragraph 40, that the aural and conceptual identity between the dominant component of the mark proposed for registration and the earlier mark neutralised the visual differences deriving from the graphic particularities, is not relevant. That judgment dealt with two figurative marks and the neutralising value of the phonetic and conceptual similarities was the same as the dominant element of the aural and conceptual components common to the two marks. According to Shaker the approach proposed by OHIM leads to the result that a phonetic and conceptual similarity can neutralise the dominant visual element, the dominant element thereby being deprived of any use in the assessment of the likelihood of confusion.
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