UNOFFICIAL DOCUMENT FOR INFORMATION PURPOSES ONLY

DECISION

of the Fourth Board of Appeal

of 28 May 2016

In Case R 689/2015-1

dm-drogerie markt GmbH + Co. KG
Karlsruhe Germany	Opponent / Appellant

represented by LEMCKE, BROMMER & PARTNER PATENTANWÄLTE PARTNERSCHAFT MBB, Karlsruhe, Deutschland

against

Arçelik Anonim Sirketi
Istanbul Turkey	Applicant / Respondent

represented by GRÜNECKER PATENT- UND RECHTSANWÄLTE PARTG MBB, Munich, Germany

APPEAL relating to Opposition Proceedings No B 2 187 618 (Community trade mark application No 11 505 013)

THE FIRST BOARD OF APPEAL

composed of Th. M. Margellos (Chairperson), M. Bra (Rapporteur) and C. Rusconi (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 21 January 2013 Arçelik Anonim Sirketi, (‘the applicant’) sought to register the word mark

ARLEA

as a European Union trade mark in respect of the following goods and services:

Class 7 - Motors, electric motors, their parts and equipment except for land vehicles (including parts, door openers and closers in land vehicles in this class); alternators, generators, electric generators, solar powered generators, power suppliers (generators); textile processing, scotching, stretching and washing machines, sewing machines and industrial robots with the same function as the above listed machines; pumps, except machine parts or motors (including fuel dispensing pumps and their nozzles); electric kitchen utensils for chopping, grinding, dicing, stirring and milling; washing and rinsing machines (washing machines / dishwashers); machines and apparatus for carpet shampooing, electric, vacuum cleaners and attachments; spin driers, not heated;

Class 8 - Tools and implements in this class for personal grooming used for shaving, peeling, manicures and pedicures and beauty treatments (including hair straightenening appliances, curling tongs and scissors); electric or non-electric irons;

Class 9 - Appliances for recording, transmission and reproduction of sound and image (including appliances and their attachments for data processing, telecommunications and reproduction); magnetic and optical recorders and software stored in them; downloadable electronic publications recorded on magnetic and optical media; magnetic and optical data media; aerials, satellite dishes, amplifiers and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity (including cables for electric and electronic purposes, batteries, accumulators, anodes and cathodes); warning and alarm systems (except for vehicles), electric bells;

Class 11 - Lighting apparatus and installations (internal and external light fittings for vehicles); installations and appliances for cooking, heating and steam generating (including electric cookers, microwaves, gas cookers, electric heaters or heating apparatus for solid, liquid or gaseous fuels); air conditioners, cooling applances, i.e. refrigerators, milk coolers, water coolers, cool boxes, ice machines and apparatus, upright and chest freezers; electric and gas powered appliances and installations for cooling, drying and cooking (including electric and heat powered tumble driers, hair driers and hand driers); industrial cooking, drying and cooling installations; laundry dryers;

Class 20 - Furniture and kitchen furniture and fittings (including irons, clothes hangers or hooks); mattresses, pillows, air beds and cushions not for medical purposes, sleeping bags for camping; mirrors; signboards of wood or plastics, picture frames, non-metal identity plates, bracelets and name plates; synthetic or wooden fastenings, furniture fittings not of metal, door fittings, not of metal, decoration and art objects of wood, wax, plaster or plastics, steps, ladders of wood or plastics, bamboo curtains, blinds, sunshades, bead curtains for decoration, curtain holders, curtain rings, curtain hooks, curtain rails;

Class 21 - Non-electric cleaning appliances (including brushes, except paint brushes, steel wool, sponges, cotton waste for cleaning, wire wool, cloths for cleaning textiles, gloves for household purposes, brooms, carpet sweepers, mops, electric brushes, except parts of machines); toothbrushes, electric toothbrushes, floss for dental purposes, shaving brushes, hair brushes, combs (including electric and non-electric make-uo removing appliances); non-electric household and kitchen appliances, clothes pegs, pans, vases belonging to this class (including precious metal ones); ironing boards and covers, revolving clothes driers, racks for drying laundry; works of art and decorative objects of glass, china, ceramics and stone;

Class 35 - The bringing together, for the benefit of others, of a variety of goods (excluding the transport thereof), enabling customers to conveniently view and purchasethe following goods: machines and tools, all for the home, motors, electric motors, their parts and equipment, except for land vehicles (including parts, electric door openers and closers for use in land vehicles), generators (alternating current), generators, electric generators, solar powered generators, machines for matting, scotching, stretching or washing, sewing machines and industrial robots for matting, scotching, stretching, washing and/or sewing textiles, pumps, except machine parts or motors, including fuel dispensing pumps and their nozzles, electric kitchen appliances for chopping, grinding, dicing, stirring and milling, washing machines (laundry or dish washing machines), machines and apparatus for carpet shampooing, electric, vacuum cleaners and attachments, dryers i.e. machines which do not use heat for drying, tools and appliances for personal grooming for shaving, depilation, manicure, pedicure and beauty treatments (including hair straightening appliances, curling tongs and scissors),electric and non electric irons, appliances for recording, transmission and reproduction of sound or images (including appliances and their attachments for word processing, telecommunications and reproduction); magnetic and optical recorders and software stored in them; downloadable electronic publications, recorded magnetic and optical media; magnetic cards / optical cards; aerials, satellite dishes, amplifiers and their parts, electronic parts for machines and appliances, appliances and instruments for conducting, switching, transforming, storing, regulating and checking electricity (including cables for electric and electronic purposes, power suppliers, batteries, accumulators, anodes and cathodes); warning and alarm systems (except for vehicles), electric bells, lighting appliances and installations and fittings (internal and external vehicle lights), cooking and heating appliances and steam generating installations and appliances (including electric cookers, microwaves, gas cookers, electric heaters or heaters for solid, liquid or gaseous fuels) air conditioners, cooling devices, i.e. refrigerators, milk coolers, water coolers, cool boxes, ice machines and attachments, upright freezers; electric and gas powered machines and instruments for cooling, drying and cooking including electric and heat powered tumble dryers, hair driers and hand driers, cooking drying and cooling installations for commercial purposes, dryers, furniture and kitchen furniture and fittings (including irons, clothes stands or hooks); mattresses, pillows, air beds and cushions not for medical purposes, sleeping bags for camping, air beds for swimming pools, mirrors; wooden and plastic signs, picture frames, non metal identity plates, bracelets and name plates; synthetic or wooden fastenings, non-metal furniture fittings, non-metal opening and closing mechanisms, decoration and artistic objects of wood, wax, plaster or plastic, steps, wooden or plastic ladders, bamboo curtains, blinds, sunshades, bead curtains for decoration, curtain holders, curtain rings, curtain hooks, curtain rails; non-electric cleaning appliances (brushes, except paint brushes, steel wool, sponges, cotton cloths, sweepers, cloths for cleaning textiles, rubber gloves, non-electric floor sweepers, carpet sweepers, mops, electric brushes, except machine parts); toothbrushes, electric toothbrushes, dental floss, shaving brushes, hair brushes, combs (including electric and non-electric make-up removal appliances); non-electric household and kitchen appliances, clothes pegs, pans, vases (including precious metal ones); ironing boards and covers, revolving clothes driers, irons for drying laundry; art and decorative objects of glass, china, pottery and stone, provision of aforementioned services via the internet or world wide web or catalogues;

Class 37 - Services connected with care, restoration and upholstery of furniture and kitchen furniture; installation, maintenance and repair of heating, air conditioning and sanitation systems; installation, maintenance and repair of industrial machinery and fittings, office machines and equipment, communications systems, electric and electronic appliances.

2. The application was published on 12 March 2013 in the Union trade marks bulletin.

3. On 28 May 2013, dm-drogerie markt GmbH + Co. KG (‘the opponent’) filed a notice of opposition against the registration of the trade mark teilweise, nämlich für folgendeapplied for in respect of all goods and services. It based its opposition on Article 8(1)(b) CTMR and on the word mark

Balea

registered in Germany under No. 30 2011 005 007 with an application date of 28 January 2011 and registration date of 9 March 2011 in respect of the following goods and services:

Class 3 - Washing products and detergents; cleaning, polishing, degreasing and abrasive agents; soaps, perfumery goods, essential oils, body and beauty care products; hair tonics, toothpaste, oil wipes and wet wipes (if belonging to class 03); oils and lotions, creams, powders, bath products, for non-medical purposes; bath and shower gels, face, skin and body creams, hair care products, after shave products, eau de toilettes, shaving products, shaving foams, shaving gels, shaving creams, razors; mouthwashes, not for medical use; peelings; depilatories; cosmetic products [filled]; mineral water for cosmetic use; make-up removal products; alum soap bars [antiseptic]; antiperspirants [antiperspirant toiletries]; aromatic products, vegetable [essential oils]; breath fresheners; essential oils; eyebrow cosmetics; eyebrow pencils; bath salts, not for medical use; bath products, cosmetics; beard tinting products; beard wax; pumice stone; skin creams, cosmetic creams; deodorants for personal use [perfumery articles];disinfectant soaps; deodorant soaps; potpourri; potpourri for laundry; liquid potpourri; bleach; depilatory wax, dyes for toiletry purposes; dyes for cosmetic use; glass cloths; hair dye; hairspray; shampoo; skin cream [cosmetic]; skin care products [cosmetic]; jasmine oil; glue for hair extensions; glue for cosmetic use; glue for false eyelashes; eau de cologne; cosmetics; cosmetic pencils; false nails; false eyelashes; lavender oil; lavender water; lipsticks; lotions for cosmetic use; make-up; almond milk for cosmetic purposes; almond oil; almond soap; medicinal soaps; cloths impregnated with cleansing agents; musk [perfumery articles];nail varnish, nail care products; perm neutralisers; body and beauty care oils; oils for cosmetic use; cleansing oils; hair curling products; perfumery oils; perfumes; pastes for strops; peppermint for perfumery goods; peppermint essence; vegetable aromatic products for drinks [essential oils]; polish for dentures; pomades for cosmetic use; potpourris [scented materials]; preparations for dry cleaning; shaving products; shaving soap; shaving soap bars [antiseptic]; after shave; aromatic products [scented materials]; joss sticks; cleansing milk for body and beauty care; cleansing products; denture cleaning products;sand paper; slimming preparations, cosmetic; make-up; face powder; face masks; shoe polish; antiperspirant soaps; soaps preventing foot perspiration; shampoos; sun protection products [cosmetic tanning products]; talcum powder for toiletry purposes; cosmetics for animals; shampoos for pets; toiletries; toilet soap; toilet water; tissues impregnated with cosmetic lotions; petroleum jelly for cosmetic purposes; laundry preparations; hydrogen peroxide for cosmetic purposes; cotton wool for cosmetic purposes; cotton sticks for cosmetic purposes; fabric softener for laundry; cosmetic preparations for eyelashes; mascara; dental bleaching gels; decorative transfers for cosmetic purposes; essential oils of lemon; wet wipes impregnated with cosmetics;

Class 5 - Pharmaceutical and medicinal veterinary products; hygienic preparations for medicinal use; dietetic products for medicinal use; baby food; plasters; bandages; teeth filling material and dental impression materials; disinfectants; insecticides; fungicides; herbicides; slimming products, medicinal; adjuvants for medicinal use; alcohol for medicinal use; alcohol for pharmaceutical use; anaesthetics; antibiotics; antiparasitic products; antiseptics; antiseptic cotton wool; appetite suppressants for medicinal use; bracelets for medicinal use; drugs for human medicinal use; drugs for veterinary medicinal use; drugs for use in dentistry; antiseptic cotton wool; cautery pens [pharmaceutical]; eye medicines [for pharmaceutical use]; bath salts for medicinal use; bath additives for medicinal use; bath additives, therapeutic; bacterial preparations for medicinal or veterinary use; bacteriological preparations for medicinal or veterinary use; balsam for medicinal use; balsamic products for medicinal use; cotton wool for medicinal use; sedatives; biological preparations for medicinal use; biological preparations for medicinal veterinary use; blood cleansing medicines; styptic pencils; sweets for medicinal use; chemical pharmaceutical products; chemical contraceptives; chemical pregnancy testing kits; chemical preparations for medicinal use; chemical preparations for pharmaceutical use; chemical preparations for medicinal veterinary use; sanitary towels; deodorants for clothing and textiles; deodorants not for personal use; disinfectants for purposes of hygiene; detergents for medicinal use; diet products for medicinal use; diet drinks for medicinal use; diet foodstuffs for medicinal use; drugs for medicinal use; protein preparations for medicinal use; enzymes for medicinal use; enzymes for medicinal veterinary use; enzyme preparations for medicinal use; glucose for medicinal use; gum for medicinal use; sanitary belts; haemostatic pencils; adhesive products for dentures; sticking plaster; herbal teas; foot perspiration remedies; antiperspirants; hormones for medicinal use; incontinence pants; insect repellents; Irish musk for medicinal use; capsules for medicinal use; chewing gum for medicinal use; germicides; compresses; headache sticks; contact lens solutions; plaster removal solutions; solutions for pharmaceutical use; air fresheners; air purifiers; malted milk drinks for medicinal use; malted milk for pharmaceutical use; milk of almonds for pharmaceutical purposes; medicinal drinks; medicinal herb infusions; medicinal hair growth preparations; medicinal tea; medicinal herbs; sea water for medicinal bathing; milking grease; sanitary wear; tampons; menthol; articles for headache; mineral food supplements; mineral waters for medical purposes; mineral water salts; preparations for the treatment of burns; preparations for callouses; preparations to facilitate teething; sanitary pads; sanitary pants; mud for baths; medicinal mud; mothproofing preparations; mothproofing paper; mouthwashes for medical purposes; nutritional supplements; medicinal oils; antiparasitic preparations; parasiticides; lozenges for pharmaceutical purposes; mint for pharmaceutical purposes; bunion pads; adhesive tapes for medical purposes; pharmaceutical preparations; pharmaceutical preparations for treating dandruff; pharmaceutical preparations for skin care; pharmaceuticals and veterinary preparations; phenol for pharmaceutical purposes; pills for pharmaceutical purposes; anticryptogamic preparations; preparations of trace elements for human use; sterilising preparations; fumigating sticks; fumigation preparations for medical purposes; contact lens cleaning preparations; medicine cases, portable, filled; smelling salts; castor oil for medical purposes; ointments for pharmaceutical purposes; liquorice lozenges; salts for medical purposes; salts for mineral water baths; oxygen baths; soporifics; slimming tea for medical purposes; syrups for pharmaceutical purposes; panty liners; sunburn ointments; sunburn preparations for pharmaceutical purposes; breast-nursing pads; markers for medical purposes; thermal water; tinctures for medical purposes; glucose for medical purposes; tissues impregnated with pharmaceutical lotions; vaginal washes; petroleum jelly for medical purposes; first-aid boxes, filled; dressings, medical; digestives for pharmaceutical purposes; vitamin preparations; wart pencils; cotton wool for medical purposes; incontinence diapers; wet wipes impregnated with pharmaceutical preparations;

Class 8 - Hand tools; cutlery, forks and spoons; weaponry; razors, electric and non-electric, razor blades, shear blades; cutlery, especially for children, also plastic; baby nail clippers (electric or non-electric);heat sensor spoons, especially colour changing sensor spoons; beard clippers; non-electric irons; manicure sets, electric; depilation appliances [electric and non-electric]; razor cases; files; nail polishers [electric and non-electric]; hairdressing appliances [hand-held, non-electric]; hair straighteners; curling tongs; hair removal appliances [electric and non-electric]; hair cutters [electric and non-electric];manicure sets; nail files; nail files [electric]; cuticle cutters; pincers; ear piercing apparatus; pedicure sets; tweezers; depilatory tweezers; stropping instruments; shaving cases;

Class 18 - Leather and imitations of leather and goods made of these if they do not belong to other classes; skins and furs; cases and hand luggage; umbrellas; sunshades and walking sticks; whips; harnesses and saddlery; pouch baby carriers; slings for carrying infants; rucksacks, bags in class 18; nappy bags; travel equipment not belonging to other classes; briefcases; attaché cases; beach bags; camping bags; net bags for shopping; handbags; pouches; travelling bags; vanity cases; toilet bags, make-up bags; travel equipment [leather goods]; travel bags; rucksacks; saddlery; leather or cardboard boxes; key cases [leather goods]; wheeled shopping bags; leather packaging boxes, wrapping, bags;

Class 21 - Household or kitchen utensils and containers; combs and sponges; brushes (except paintbrushes); brush-making materials; articles for cleaning purposes; steel wool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware, porcelain and if they do not belong to other classes; dishes; heat insulated containers (insulating containers for food), feeding troughs; baby baths (portable); heaters for feeding bottles (non- electric); bottle and teat brushes; toothbrushes; hair brushes; bottle holders; food containers; refrigerator containers; heat retaining containers (insulated containers);powder puffs; waste paper baskets; make-up removing appliances, non-electric; aerosol dispensers, not for medicinal purposes; cinder sifters [household utensils]; eyebrow brushes; mugs; ironing boards; cosmetic utensils; brushes; figurines of porcelain, clay or glass; deodorants for personal use; disposable table plates; ice buckets; electric brushes except parts of machines; electric combs; bottles; containers for household or kitchen use; towel holders; towel rails and towel rings; household appliances; gloves for household purposes; sponges for household purposes; fly traps; insulating containers, vessels, bottles; eyeliner pencils; combs [coarse]; comb cases; ceramic products for the home; baskets for the home; cosmetic appliances; cool bags; cool boxes, portable, non-electric; mouthwashes; nail brushes; paper or plastic cups; paper towel dispensers, metal; perfume sprays; polishing apparatus and machines, non-electric, for household purposes; powder compacts; powder puffs; shaving brushes; shaving brush holders; perfume burners; cleaning appliances, hand-held; cleaning cloths; bowls; shoehorns; shoe brushes; shoe cleaning appliances, non-electric; shoetrees [lasts]; sponges for household purposes; sponge holders; soap boxes; soap holders, soap dishes; soap dispensers; toilet utensils {personal hygiene]; toilet bags; toilet paper holders; toilet paper dispensers; toilet sponges; drinking vessels; glasses; washing boards; wash tubs; toothbrushes, electric; dental floss; toothpicks; toothpick holders;

Class 24 - Fabrics and textiles not included in other classes; bed covers and table covers; patchwork covers; quilts; bedspreads; covers for child seats; face towels of textile; mosquito nets; make-up removing cloths; bathing accessories excluding clothing; cotton materials; bed covers of paper; sheets; bed linen [sheets]; cushion covers; shower curtains of textile or plastic; eiderdowns; lining; lining fabric for shoes; flannel; textile fabrics; household linen; soft furnishings; coverings [mattress covers]; cushion covers; pillow cases; mattress protectors; mosquito nets; travel rugs; sleeping bags [sheets sewn in]; silk; face cloths; hand towels; napkins; materials; fabric for footwear; handkerchiefs; cloth items [sheets]; household linen; household materials [synthetic]; bath mitts;

Class 25 - Clothing; footwear; headgear; baby trainer pants (clothing); cloth nappies; babies’ pants (underwear); babies’ clothes; waterproof clothing; scarves; brassieres; nursing brassieres; inner soles; woollen hats; socks; baby shoes; bathing suits; bathing trunks; bathrobes; bathing caps; bath sandals; bath slippers; bandanas (neckerchiefs); paper clothing; boas [clothing]; body suits [teddies, bodies]; camisoles; shower caps; inner soles; pocket squares; galoshes; leggings; money belts (clothing); non slipping devices for shoes; belts [clothing];clothing for gymnastics; gymnastic shoes; gloves [clothing]; slippers; combinations [underwear]; short sleeve shirts; shirt fronts; shirts; collars [detachable]; shirt yokes; braces; stocking suspenders; jackets; pullovers; caps [headwear]; hoods; linings for clothes [ready- made]; clothes bags [ready- made]; scarves and shawls; corselets; corsets; collars [clothing]; neckties; mufflers; bibs, not of paper; clothing of leather; underwear; underwear [sweat-absorbent]; liveries; cuffs (clothing); bodices; dressing gowns; muffs [clothing]; caps; peaks; ear muffs [clothing];overalls; slippers; pyjamas; sandals; saris; shawls; sashes; nightdresses; sleep masks; veils [clothing]; knickers; soles for footwear; aprons; [clothing]; sweat pads; briefs; socks; suspenders; headbands [clothing]; sandals [esparto shoes]; stoles [fur stoles]; beach clothes; beach shoes; garters; stockings; stockings [sweat-absorbent]; heel pieces for stockings; suspenders; sweaters; t-shirts; underwear; underwear [sweat-absorbent]; underpants; underwear; half stockings; underwear [clothing]; knitwear [clothing];

Class 26 - Lace and embroidery; ribbons and braid; buttons, hooks and eyelets, needles; reins; safety pins; hair bands; hair bands; hair slides; hair decoration; badges [buttons]; appliqués [haberdashery]; fastenings and cords for clothing; brooches [clothing accessories]; false beards; false moustaches; feathers [clothing accessories]; hair colouring caps; hair pins; hair nets; hair bands; false hair; artificial flowers; artificial fruits; reins for children; hair curlers, non- electric; hair curling papers; needle cases; sewing boxes; bodkins; wigs; wigs [hair pieces]; toupees [hair pieces]; hair extensions; trimmings; cords; braids [trimmings];

Class 32 - Mineral and aerated waters and other non-alcoholic beverages; fruit beverages and fruit juices; syrups and other preparations for making beverages; non-alcoholic fruit extracts; non-alcoholic fruit juice beverages; non-alcoholic beverages; cider [non-alcoholic fruit juice] [must];powders for effervescing beverages; pastilles for effervescing beverages; vegetable juices [beverages]; isotonic beverages; lemonades; whey beverages; aerated water; soda water; sorbets [beverages]; table waters; waters [beverages].

4. By decision of 13 February 2015 (‘the contested decision’), the Opposition Division rejected the opposition in its entirety and ordered the opponent to bear the costs. It based this on the following grounds:

• Some of the contested goods are identical to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division did not carry out a full comparison of the goods listed above. The examination of the opposition shall take place as if all of the contested goods are identical to those of the earlier trade marks.

• The relevant territory is Germany. Visually, the marks under comparison are two word marks, both consisting of five letters. The final three letters in both marks are ‘LEA’. There are differences in their respective initial syllables (‘Ba’/’AR’), although both first syllables contain ‘a’. They are protected as word marks in different standard representations, particularly in capital letters and small letters. Aurally, the pronunciation of the signs corresponds to the sound of the final syllables /LE-A/, which are identical in both signs. The marks are aurally similar in this respect. Aurally, the pronunciation of the first syllable /AR/ of the contested trade mark differs from that of the first syllable /BA/ of the earlier trade mark. Conceptually, neither of the two signs has any meaning for the public in the relevant territory. In view of the visual and aural correspondences mentioned above, it is concluded that the signs under comparison contain certain similarities.

• According to the opponent, the earlier mark has been used a great deal and is entitled to enhanced protection. In the interest of procedural economy, however, the evidence submitted by the opponent as proof of this submission cannot be assessed within the framework of the present case. For the purposes of the overall evaluation, it is accepted that the earlier trade mark is a more pronounced distinctive character.

• The average consumer of the type of goods in question is regarded as being reasonably well-informed, observant and cautious. Account must also be taken of the fact that the average consumer’s level of attention is likely to vary according to the category of goods or services in question. In the current case, the goods and services which were found to be identical target both the general public and commercial customers/traders with special expert knowledge. The level of attention of the relevant members of the public will be normal and above-average.

• The Opposition Division decided not to undertake a comparison of the contested goods and services in the interest of procedural economy and assumed that all the contested goods and services were identical to the goods of the opposing trade mark. The signs have certain similarities in that they each contain the letters ‘LEA’. The signs in their entirety have no meaning. The first syllable[s] of [each of] the conflicting marks, ‘Ba (earlier mark’) and ‘AR’ (contested mark), can be distinguished from one another (even though both marks contain a letter ‘a’). When consumers are confronted with a trade mark, they generally tend to concentrate on the first element of a sign. This is borne out by the fact that the public reads from left to right, as a result of which the left-hand part of the sign (the beginning) is the part to which the reader’s attention is first directed. Therefore, the differing first elements of the trade marks in question must be taken into consideration in the assessment of the likelihood of confusion between the marks. Because of the difference in the first syllable of the signs, the whole impression created by the signs ‘Balea’ and ‘ARLEA’ is sufficiently distinct to preclude confusion even with identical goods and services.

• Even assuming that the earlier mark had become highly distinctive because it was so well-known, this would have no effect on the present result. On the whole, because there are merely certain similarities between the signs (both contain the letters ‘LEA’), there is no likelihood of confusion even with respect to identical goods and services, due to the differing initial syllables. It is therefore unnecessary to examine the documents provided as proof of widespread recognition.

• Considering all the above points and even assuming that the goods and services might be identical, there is no danger to the general public of confusion (even with only an average level of attention). The opposition must therefore be rejected.

5. The opponent filed a notice of appeal against the contested decision on 7 April 2015 and requested that the decision be annulled. The grounds of appeal were submitted on 11 June 2015.

6. By written submission of 29 September 2015, the applicant submitted observations and requested that the appeal be dismissed.

Arguments of the parties

7. The arguments in support of the appeal may be summarised as follows:

• The opposing mark is a purely made-up name based on an original neologism and does not exist in any dictionary. It therefore possesses normal distinctive character and is completely suitable for distinguishing the goods and services by their commercial origin. In this respect the mark ‘BALEA’ is endowed with an inherently normal degree of distinctive character regardless of how it is used in the market.

• The opposition trade mark is also one which has become more recognisable as a result of years of use, and may therefore draw on extended protection against the likelihood of confusion. Comprehensive documentation for this has already been supplied with the grounds for opposition.

• The Opposition Division is incorrect to assume normal to average level of attention on the part of the relevant public. A large proportion of the goods in question are goods in daily use and are regularly purchased in self-service stores. Consequently, the attention of the average consumer should rather be classed as below average, as these goods are purchased without particular attention. This means that trade marks of third parties must be even more distinct in order to avoid the likelihood of confusion.

• In respect of the following aspects the compared marks are completely identical. They consist of five letters and three syllables. They are pronounced with the same stress, i.e. on the second syllable, and are characterised by the same sequence of vowels: ‘A_E_A’. They also have the same ending, ‘LEA’, which is aurally concise.

• The signs ‘ARLEA’ and ‘BALEA’ are aurally and visually similar to a high degree. As the signs have no lexical meaning, a conceptual comparison of the signs is meaningless.

• Some of the goods and services to be compared are identical and at least similar.

• Considering the interdependence between the increased distinctiveness of the opposing mark, the high degree of similarity between the opposing signs as well as the identity and similarity of the goods and the established low level of consumer attention, there is a high likelihood of confusion between the opposing trade mark ‘BALEA’ and the contested mark ‘ARLEA’.

8. The arguments in the applicant’s statement essentially repeat the arguments of the Opposition Division in the reasons it gave for the contested decision.

Reasons

9. The appeal complies with Articles 58, 59 and 60(1) EUTMR in conjunction with Rules 48 and 49 EUTMIR. It is therefore admissible.

10. According to Article 8(1)(b) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered, if because of its similarity to the earlier trade mark and the identity or similarity of the goods covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

11. According to case-law, the likelihood of confusion on the part of the relevant public must be assessed globally, taking into account all factors relevant to the circumstances of the case, especially the interdependence between the similarity of the signs and the similarity of the goods. (09/07/2003, T‑162/01, Giorgio Beverly Hills, EU:T:2003:199, 31-33).

12. As a consequence of this interdependence, a low level of similarity between the signs can be balanced against a higher level of similarity between the trademarked goods or services, and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17; 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 19).

13. The signs to be compared are as follows:

    Balea	ARLEA
    Earlier trade mark	Contested application

14. The relevant public for the assessment of likelihood of confusion is the German public.

15. From a visual point of view it must be accepted that there is a certain similarity between the relevant signs. Both trade marks consist of five letters. The last three of the five letters in the sign ‘BALEA’ are in the same place in the sign ‘ARLEA’. In addition, the signs have another letter in common, the ‘A’, at the beginning of the words and are only different because of the letters ‘B’ and ‘R’.

16. There are also aural similarities between the signs. These are seen in the identical sequence of vowels ‘A-E-A’ and are pronounced identically in their constituents ‘lea’/’LEA’. Despite the aural differences arising from the pronunciation of the different letters ‘B’ and ‘R’, there is therefore at bottom an aural similarity.

17. Conceptually, there are no grounds for assuming that the signs have any meaning for the German consumer. A conceptual comparison of the signs is therefore pointless in this case.

18. It must be held that the similarities between the signs, identified above, justify the conclusion that a comparison of the goods should be carried out in order to make an overall assessment of the likelihood of confusion in this case (23/11/2005, T‑396/04, Nicky, EU:T:2005:410, § 38-39).

19. This applies even if the signs display only slight similarities which might be attenuated within the framework of a global assessment or by other aspects such as the type of goods and the circumstances of their marketing. If opposing signs are not obviously dissimilar, but display similarities as well as differences, the meaning of each of these similar and different elements cannot be evaluated in isolation. On the contrary, it must be evaluated as part of a comprehensive assessment of the likelihood of confusion in all relevant circumstances.

20. Equally, the increased distinctiveness, and the degree of this claimed by the opponent, must be taken into account.

21. In the contested decision, the Opposition Division failed to conduct not only an examination of the goods and services, but also an examination of the claimed increased degree of distinctiveness of the opposing trade mark, on grounds of ‘procedural economy’. and thereby not the required comprehensive assessment of the likelihood of confusion pursuant to Article 8(1)(b) EUTMR.

22. In view of this, the Board considers it appropriate to remit the matter to the Opposition Division for a further decision. The signs display a not inconsiderable degree of similarity, so there must be a global assessment of the likelihood of confusion, taking all relevant circumstances into consideration. In this case, the similarity of the goods and services and the claimed heightened distinctiveness of the opposing mark are of consequence.

23. This decision in itself represents no final decision on the opposition and can only be contested in conjunction with such a decision.

Costs

24. It is only right for each of the parties to the proceedings to bear their own costs, in accordance with Article 85(2) EUTMR.

25. Furthermore, in accordance with Rule 51(b) EUTMIR the order is given for reimbursement of the appeal fee. The ruling on costs of the opposition proceedings is left to the decision of the Opposition Division.

Order

On those grounds,

THE BOARD

hereby:

1. Annuls the contested decision.

2. Remits the case to the Opposition Division for a further decision.

3. Reimburses the appeal fee.

4. Orders each of the parties to the appeal proceedings to bear their own costs.

Signed Th. M. Margellos

Signed M. Bra

Signed C. Rusconi

Registrar: Signed H. Dijkema