Decision on Opposition No B 2 815 283 page: 7 of 11
The relevant territory is the European Union.
The global appreciation of the visual, aural or conceptual similarity of the marks in
question must be based on the overall impression given by the marks, bearing in
mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95,
Sabèl, EU:C:1997:528, § 23).
The earlier mark is a word mark, ‘OZIFY’. The word as such conveys no meaning;
however, it cannot be excluded that the relevant consumers, when perceiving a
verbal sign, will break it down into elements that suggest a concrete meaning, or that
resemble words that they already know (13/02/2007, T-256/04, Respicur,
EU:T:2007:46, § 57; 13/02/2008, T-146/06, Aturion, EU:T:2008:33, § 58). For
example, the English-speaking part of the public may recognise the part ‘OZ’ as a
shortened form of ‘Australia’ and the common suffix ‘-IFY’, which is used with
adjectives and nouns to form verbs meaning ‘to cause an increase in the stated
quality or to become’ (information extracted from Cambridge Dictionary on
27/10/2017 at http://dictionary.cambridge.org). Therefore, when taken as a whole, the
word ‘OZIFY’ may be perceived as alluding to goods imbued with an Australian
quality or Australian qualities, and its distinctiveness will be lower than average in
relation to the relevant goods for the part of the public that perceives it in this way.
For the part of the public that perceives the word ‘OZIFY’ as a meaningless word
(e.g. the Spanish-, Romanian-, Czech-, Slovenian-, Hungarian-speaking part of the
public), the distinctiveness of this word is normal, since it will not be perceived as
describing or alluding to any characteristics of the relevant goods.
The contested sign is a figurative mark, consisting of the verbal element ‘OZZI’
written in black slightly stylised upper case letters at the bottom of the figurative
element, consisting of part of a circle in a uniform green colour. A part of the relevant
public (e.g. the English-speaking part of the public) will perceive the word ‘OZZI’ as a
male name (which is used in the English language and is derived from Old English).
For the remaining part of the public, this word will be meaningless. In either case, the
distinctiveness of the word ‘OZZI’ is normal. The figurative element of the contested
sign consists of part of a simple geometrical shape in green and is essentially
decorative in nature. Consequently, the word ‘OZZI’ is the most distinctive element of
the contested sign.
Considering the abovementioned possible perceptions of the signs and bearing in
mind that similarities between signs are greater when the commonalities reside in
distinctive elements, the Opposition Division will continue with the assessment of
similarity from the perspective that represents the most advantageous scenario for
the opponent, namely that of the part of the public that will perceive the word ‘OZIFY’,
and the word ‘OZZI’, as meaningless words, each of them having an average degree
The earlier mark is a word mark and, therefore, does not have any element that could
be considered clearly more dominant (visually eye-catching) than other elements.
However, the figurative element of the contested sign, due to its size, position and
colour, clearly stands out in the overall composition and is, therefore, considered the
most dominant (visually eye-catching) element of the contested sign.
Visually, the signs are similar to the extent that they coincide in their first two letters,
‘OZ’, and the letter ‘I’, which is the third letter of the earlier mark, ‘OZIFY’, and the last
(fourth) letter of the verbal element ‘OZZI’ of the contested sign. However, the signs
differ in all other aspects, namely, the last letters, ‘FY’, of the earlier mark, the third