Decision on Opposition No B 2 753 054 page: 6 of 7
e) Global assessment, other arguments and conclusion
Evaluating likelihood of confusion implies some interdependence between the
relevant factors and, in particular, a similarity between the marks and between the
goods or services. Therefore, a lesser degree of similarity between goods and
services may be offset by a greater degree of similarity between the marks and vice
versa (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).
In the present case, the signs are visually and aurally similar to a high degree, and
the conceptual comparison has no influence.
The contested goods and services are partly identical, partly similar to at least a high
degree and partly similar to the opponent’s services.
The fact that the mark applied for reproduces to a striking degree the essential
features of the earlier mark – the marks have seven out of eight letters in common
and in the same order – leads to the conclusion that the signs are sufficiently similar
overall to conclude that the public under consideration might believe that the services
found to be identical or similar to various degrees come from the same trade origin or
from undertakings that are economically or industrially linked (17/10/2006, T-483/04,
Galzin, EU:T:2006:323, § 80; 21/10/2008, T-95/07, Prazol, EU:T:2008:455, § 56;
16/06/2010, T-487/08, Kremezin, EU:T:2010:237, § 90), in particular given that
consumers rarely have the chance to make a direct comparison between different
marks, but must trust in their imperfect recollection of them (15/03/2012, T-288/08,
Zydus, EU:T:2012:124, § 52). The strong similarity between the signs is clearly
sufficient to outweigh the slight difference stemming from their respective third letters
and the typeface of the earlier mark.
The applicant argued that the contested sign is currently in use. This argument has to
be disregarded, given that the right to an EUTM begins on the date when the EUTM
is filed and not before, and from that date on the EUTM has to be examined with
regard to opposition proceedings.
Therefore, when considering whether or not the EUTM falls under any of the relative
grounds for refusal, events or facts that happened before the filing date of the EUTM
are irrelevant because the rights of the opponent, insofar as they predate the EUTM,
are earlier than the applicant’s EUTM.
Considering all the above, there is a likelihood of confusion on the part of the
Bulgarian- and Spanish-speaking parts of the public. As stated above in section c) of
this decision, a likelihood of confusion for only part of the relevant public of the
European Union is sufficient to reject the contested application.
Therefore, the opposition is well founded on the basis of the opponent’s European
Union trade mark registration No 8 475 451. It follows that the contested trade mark
must be rejected for all the contested goods and services.
According to Article 109(1) EUTMR, the losing party in opposition proceedings must
bear the fees and costs incurred by the other party.
Since the applicant is the losing party, it must bear the opposition fee as well as the
costs incurred by the opponent in the course of these proceedings.