Judgment_paragraph 40 · Advance Magazine Publishers, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (T-509/12)

40Second, concerning the applicant’s reliance on the case-law according to which the beginning of a sign is significant in the overall impression given by that sign (Case T-112/03 L’Oréal v OHIM - Revlon (FLEXI AIR) [2005] ECR II-949, paragraphs 64 and 65, and judgment of 16 December 2008 in Case T‑357/07 Focus Magazin Verlag v OHIM — Editorial Planeta (FOCUS Radio), not published in the ECR, paragraph 36), it must be recalled that that argument cannot hold in all cases and does not, in any event, cast doubt on the principle that the assessment of the similarity of marks must take account of the overall impression created by those marks, since the average consumer normally perceives a trade mark as a whole and does not proceed to analyse its various details (see judgment of 16 May 2007 in Case T-158/05 Trek Bicycle v OHIM - Audi (ALLTREK), not published in the ECR, paragraph 70 and the case-law cited). Thus, despite the presence of a first element differentiating the mark applied for from the earlier mark, those marks may show a certain visual similarity due to the presence of a common element (Case T-286/02 Oriental Kitchen v OHIM - Mou Dybfrost (KIAP MOU) [2003] ECR II-4953, paragraphs 39 to 44; judgment of 8 March 2005 in Case T-32/03 Leder & Schuh v OHIM - Schuhpark Fascies (JELLO Schuhpark), not published in the ECR, paragraphs 38 to 47; and Case T-466/08 Lancôme v OHIM - Focus Magazin Verlag (ACNO FOCUS) [2011] ECR II-1831, paragraphs 56 to 63).