Decision on Opposition No B 2 747 296 page: 4 of 5
meaning for any of the goods in question from the perspective of the public in the
relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as
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 goods are identical. The signs are visually and aurally similar
to only a low degree. The conceptual aspect does not influence the comparison of
the signs for the public under consideration, leaving the consumers to rely on their
visual and aural perceptions of the signs when comparing them. The earlier mark has
a normal degree of distinctiveness, which confers on it a normal level of protection.
Bearing this in mind, the Opposition Division finds that although the relevant goods
are identical, the differences between the signs offset their similarities to the extent
that there is a significant visual and aural difference in the contested sign in the form
of the middle letter/sound ‘Z’.
Furthermore, the length of the signs may affect the differences between them. The
shorter a sign, the more easily the public is able to perceive its single elements.
Therefore, in short words, small differences may frequently lead to a different overall
impression, especially when the visual aspect plays a significant role, as is the case
when goods in Class 25 are purchased. In contrast, the public is less aware of
differences between long signs.
The signs in dispute are both short marks. The fact that they differ in one letter is a
relevant factor to consider when evaluating the likelihood of confusion between the
conflicting signs. Therefore, considering all the above, there is no likelihood of
confusion on the part of the public and the opposition must be rejected.
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 opponents are the losing parties, they must bear the costs incurred by the
applicant in the course of these proceedings.
According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3)
and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), the costs to be paid to the
applicant are the costs of representation, which are to be fixed on the basis of the
maximum rate set therein.