DECISION

of the Second Board of Appeal

of 2 February 2016

In Case R 1389/2015-2

zero Holding GmbH & Co. KG
Konsul-Smidt-Str. 8G Speicher 1, Haus 2-4 DE-28217 Bremen Germany	Opponent  / Appellant

represented by Boehmert & Boehmert Anwaltspartnerschaft mbB – Patentanwälte Rechtsanwälte, Hollerallee 32, DE‑28209 Bremen, Germany

v

0909 S.R.L.
c/o Francesco Paolo FUMAROLA, via Paretone zona i 109/b IT-74015 Martina Franca (TA) Italy	Applicant  / Respondent

APPEAL relating to Opposition Proceedings No B 2 386 798 (Community trade mark application No 12 737 615)

The Second Board of Appeal

composed of T. de las Heras (Chairperson), C. Govers (Rapporteur) and C. Negro (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 28 March 2014, 0909 S.R.L. (hereinafter ‘the applicant’) sought to register the word mark

0909 zeronove zeronove

for the following list of goods and services:

Class 3 – Abraders; essential oils and aromatic extracts; tailors' and cobblers' wax; cleaning and fragrancing preparations; animal grooming preparations;

Class 18 – Saddlery, whips and animal apparel; walking sticks; sausage skins and imitations thereof; umbrellas and parasols;

Class 25 – Clothing; headgear;

Class 35 – Business assistance, management and administrative services; business analysis, research and information services; commercial trading and consumer information services.

2. The application was published in the Community Trade Marks Bulletin No 80/2014 of 30 April 2014.

3. On 30 July 2014, zero Holding GmbH & Co. KG (hereinafter ‘the opponent’) filed a notice of opposition based on the following earlier right:

• CTM registration No 5 345 798 for the figurative mark , filed on 29 September 2006 and registered on 29 February 2012 for the following goods and services:

Class 3 – Cosmetic soaps; perfumery, essential oils, articles for body- and beauty-care;

Class 9 – Spectacles including sunglasses;

Class 14 – Jewellery, including costume jewellery; clocks and watches, watchstraps;

Class 18 – Bags included in Class 18;

Class 25 – Outerclothing, including knitted and woven clothing; footwear, headgear, belts (except belts made of common and precious metals and imitations thereof) (clothing), gloves (clothing), scarves, headscarves and neckerchiefs;

Class 26 – Belt buckles (clothing accessories);

Class 35 – Retail services, including for mail order, by means of teleshopping channels and via the Internet, in relation to clothing, headgear and footwear, leatherware (including clothing), cosmetics, perfumery, eyewear, wrist watches and pocket watches, jewellery; presentation of goods in shops, trade fairs and on communications media, for retail purposes; professional business consultancy and marketing for others; franchising, namely providing of organisational know-how;

Class 36 – Management of financial interests for enterprises and businesses in the outerclothing sector, for others; franchising, namely providing of financial know-how.

4. The grounds of the opposition were those laid down in Article 8(1)(b) CTMR.

5. The opposition was based on all the goods and services covered by the earlier rights and was directed against part of the goods and services covered by the contested mark, namely :

Class 3 – Essential oils and aromatic extracts;

Class 25 – Clothing; headgear;

Class 35 – Business assistance, management and administrative services; business analysis, services; commercial trading services.

6. By decision dated 18 May 2015 (hereinafter ‘the contested decision’) the Opposition Division rejected opposition No B 2 386 798 for all the contested goods and services, and ordered the opponent to bear the costs. The Opposition Division reasoned as follows:

• Essential oils are identically included in both lists of goods.

• The contested aromatic extracts overlap with the opponent’s perfumeries, essential oils. In fact, essential oils are natural oils typically obtained by distillation and having the characteristic odour of the plant or other source from which it is extracted and perfumery are fragrant liquids typically made from essential oils extracted from flowers and spices, used to give a pleasant smell to one’s body. On the other hand, aromatic extracts are physically extracted from plants and contain volatiles. They can be used for imparting a natural aroma to a product, or for masking cosmetic base odours without the use of fragrance. Therefore, these goods are considered identical.

• Headgear is identically contained in both lists of goods.

• The contested clothing includes, as a broader category, the opponent’s outerclothing, including knitted and woven clothing. It is impossible for the Opposition Division to filter these goods from the abovementioned category. Since the Opposition Division cannot dissect ex officio the broad category of the applicant’s goods, they are considered identical to the opponent’s goods.

• The contested business assistance is offered by persons or companies in order to help and consult other undertakings in the management of business affairs and the organisation of commercial functions. Business management services, business analysis services are usually rendered by specialised companies that gather information, provide tools and expertise to enable their customers to perform their business or provide businesses with the necessary support to develop, expand and acquire greater market share. The contested services involve activities such as business research and appraisals, cost price analysis and organisation consultancy. These services also include any consultancy, advisory and assistance activity that may be useful in the management or administration of a business. Consequently, the contested business assistance, management services, business analysis services overlap with the opponent’s professional business consultancy because the services in question all partly include consultancy and advisory activities to clients in connection with the management of their business. The services are, therefore, identical.

• The contested business administrative services are deemed similar to the opponent’s professional business consultancy. The contested services consist in organising people and resources efficiently to direct activities towards the common goals and objectives of a business. In addition, they can coincide in their purpose, originate from the same undertakings and target the same end users.

• The contested commercial trading services include any kind of trade service which is conducted for the purpose of making profit, including retail services in general. This specification of the contested services includes, as a broader category, the opponent’s retail services, including for mail order, by means of teleshopping channels and via the Internet, in relation to clothing, headgear and footwear, leatherwear (including clothing), cosmetics, perfumery, eyewear, wrist watches and pocket watches, jewellery. It is impossible for the Opposition Division to filter these services from the abovementioned category. Since the Opposition Division cannot dissect ex officio the broad category of the applicant’s services, they are considered identical to the opponent’s services.

• The relevant territory is the European Union.

• Taking into account the visual, aural and, for part of the relevant public, conceptual coincidences, it is considered that the signs under comparison are similar, although only to a certain degree.

• The marks under comparison have no elements which could be considered clearly more distinctive or more dominant than other elements.

• The distinctiveness of the earlier mark must be seen as normal.

• The goods and services found to be identical or similar target both the public at large and business customers with specific professional knowledge or expertise. The attention of the relevant public will vary from average to higher than average.

• It must be taken into account that the contested sign contains additional elements, such as the numbers and additional words. Overall, it can be perceived as a code or an organised sequence of numerals and letters. These numerals and the word ‘nove’ have no counterpart in the earlier sign and will not be either overlooked or misheard.

• The fact alone that both marks can be perceived as containing the letter sequence ‘ZERO’ is not sufficient in itself for finding a likelihood of confusion, as this string of letters is hidden in a secondary position in the contested sign and does not form a stand-alone element. In addition, the length of the signs may also influence the effect of the differences between them. The earlier sign contains four characters in comparison with the 20 letters/numerals of the contested sign. Furthermore, the average consumer usually does not proceed to analyse the various details of a sign, but rather perceives it as a whole.

• Therefore, the opposition must be rejected under Article 8(1)(b) CTMR.

7. On 15 July 2015 the opponent filed a notice of appeal against the decision. The statement of grounds of the appeal was received on 17 September 2015.

8. The appeal was forwarded to the Opposition Division for consideration pursuant to Article 62 CTMR and was remitted to the Boards of Appeal on 2 October 2015.

9. The applicant responded to the appeal with observations on 3 December 2015.

Submissions and arguments of the parties

10. On 17 December 2015, the opponent requested that the Board reconsider the contested decision, uphold the opposition and reject the contested goods of the application. It argued as follows:

• The Opposition Division erred in its reasoning. The only question is whether the public will regard the element ‘zero’ as being an essential element of the earlier mark as an independent individual trade mark element.

• Numerals will not be perceived by the public as brand elements, if the word elements are dominating. To support its argument, the opponent cited several decisions of the Office.

• The repetition of the word element ‘zeronove’ will be understood by the public only as emphasis. Therefore the comparison has to be focused on the following signs ZERO/ZERONOVE. In the sign ‘ZERONOVE’ the most outstanding element is ‘ZERO’, because of its position at the beginning.

• Part of the public could understand ‘ZERONOVE’ as meaning ‘new zero’.

• The difference introduced by the element ‘NOVE’ is negligible from a phonetic point of view. This word is clearly detached in the earlier mark.

• The opponent refers to several earlier decisions from the Court of Justice, the Boards of Appeal and the Opposition Division where a similarity has been found between two marks comprising the word zero.

• The opponent also refers to the arguments submitted before the Opposition Division. In this statement, it mainly added that regarding goods in Class 25, the aural aspect remains important. It also added that the consumer rarely has the chance to compare two marks directly. To support these arguments, it quoted a judgment of the Court of Justice.

11. On 3 December 2015, the applicant requested that the Board confirm the contested decision, allow the CTM to be registered for the contested goods and services and that the costs be borne by the opponent. It argued as follows:

• The Opposition Division has correctly stated that the contested mark appears as a sequence of numerals and letters wherein the ‘letter sequence ZERO’ is ‘hidden in a secondary position and does not form a stand-alone element’.

• The contested sign is a figurative mark, which increases the difference.

• The applicant also refers to several other decisions of the Office in respect of allegedly similar cases.

Reasons

12. The appeal complies with Articles 58, 59 and 60 CTMR and Rules 48 and 49 CTMIR. It is, therefore, admissible.

Likelihood of confusion

13. Article 8(1)(b) CTMR states that upon opposition by the proprietor of an earlier trade mark, the contested sign is not to be registered if ‘because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services 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; a likelihood of confusion includes a likelihood of association with the earlier trade mark’.

14. According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion. The likelihood of confusion on the part of the public must be assessed globally, according to the relevant public’s perception of the signs and of the goods and services in question, and taking into account all factors relevant to the circumstances of the case, including the interdependence between the similarity of the signs and that of the goods or services covered. In light of that interdependence, even a lesser degree of similarity between the marks may be offset by a higher degree of similarity between the designated goods or services and vice versa (09/07/2003, T-162/01, Giorgio Beverly Hills, EU:T:2003:199, § 30-33).

15. The perception of marks in the mind of the average consumer of the goods or services in question plays a decisive role in the global assessment of the likelihood of confusion. Furthermore, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. In addition, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but has to place his/her trust in the imperfect image of them that he/she has retained in his/her mind (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

16. For the purposes of that global assessment, the average consumer of the products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer's level of attention is likely to vary according to the category of goods or services in question (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 25-26).

Relevant public

17. The relevant public for the assessment of the likelihood of confusion is composed of users likely to use both the goods and services covered by the earlier mark and those covered by the mark applied for (01/07/2008, T-328/05, Quartz, EU:T:2008:238, § 23). As stated above, the attentiveness of the public will vary depending on the kind of goods and services involved.

18. In the present case, the opposition will be assessed on the basis of an earlier CTM. The relevant territory in respect of which the likelihood of confusion must be assessed is, therefore, the European Union.

19. The average consumer’s level of attention is likely to vary according to the category of goods and services (13/02/2007, T 256/04, Respicur, EU:T:2007:46, § 42 and the case-law cited therein).

20. The goods at issue are directed at the public large and at business customers with specific professional knowledge or expertise.

21. Regarding the goods in Class 3, account must be taken, of an average consumer, who is reasonably well informed and reasonably observant and circumspect (22/05/2012, T‑273/10, O•live, EU:T:2012:246, § 42).

22. Regarding the goods in Class 9 and 18, the level of attention is average.

23. In respect of the goods in Class 14, as they are generally sold at high prices, especially jewellery, precious stones or chronometric instruments, the consumer’s level of attention will likely be relatively high. As regards items of jewellery that are on sale at comparatively low prices (such as plated jewellery, imitation jewellery, and low-price watches and chronometric instruments), the consumer will generally pay an average level of attention when purchasing them (25/06/2015, EU:T:2015:43, T-662/13, M, § 21).

24. Regarding the goods in Classes 18 and 25, the relevant public in respect of which the likelihood of confusion must be analysed is the average consumer of the products at issue. That average consumer must be deemed to be reasonably well informed and reasonably observant and circumspect. It has a normal level of attention (18/06/2013, T‑338/12, K9 products, EU:T:2013:327, § 18; 17/05/2013, T‑231/12, Julius K9, EU:T:2013:264, § 19).

25. The services in Class 35 are both directed at the public at large who is deemed to be reasonably well informed and reasonably observant and circumspect, with a normal level of attention (27/06/2013, T‑89/12, R, EU:T:2013:335, §44), as well as at specialised business consumers, who display a higher level of attention. The same applies to the services in Class 36.

Comparison of the goods and services

26. In assessing the similarity of the goods, all the relevant factors relating to those goods should be taken into account, including, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 23). Other factors may also be taken into account such as, for example, the usual origin and the relevant public of the goods and services.

27. The contested ‘essential oils and aromatic extracts’ in Class 3 have been found to be identical to the opponent’s goods by the Opposition Division.

28. In Class 25, ‘headgear’ is identically contained in both lists of goods. Moreover, the contested ‘clothing’ includes as a broader category, the opponent’s ‘outerclothing, including knitted and woven clothing’.

29. The contested ‘business assistance, management service, business analysis’ in Class 35 were considered as overlapping the opponent’s ‘professional business consultancy’ and to that extent, they are identical.

30. The contested ‘commercial trading services’ include as a broader category the opponent’s ‘retail services, including for mail order, by means of teleshopping channels and via the Internet, in relation to clothing, headgear and footwear, leatherwear (including clothing), cosmetics, perfumery, eyewear, wrist watches and pocket watches, jewellery’. Therefore, these services are considered identical.

31. As correctly pointed out by the Opposition Division, the contested ‘business administrative services’ are similar to the opponent’s ‘professional business consultancy’. The contested services consist in organising people and resources efficiently to direct activities towards the common goals and objectives of a business. In addition, they can coincide in their purpose, originate from the same undertakings and target the same end users.

32. The Board fully endorses the contested decision’s reasoning and findings in respect of the comparison of the competing goods and services, which, moreover, have been contested neither by the opponent, nor by the applicant.

Comparison of the signs

33. The Board stresses that the likelihood of confusion must be determined by means of a global appraisal of the visual, aural and conceptual similarities between the marks, on the basis of 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).

34. In general terms, two signs are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, aural and conceptual aspects (23/10/2002, T-6/01, Matratzen, EU:T:2002:261, § 30 upheld by appeal by order of 28/04/2004, C‑3/03 P, Matratzen, EU:C:2004:233; 12/07/2006, T-97/05, Marcorossi, EU:T:2006:203, § 39 and 22/06/2005; T-34/04, Turkish Power, EU:T:2005:248, § 43, upheld on appeal by order 01/06/2006, C-324/05 P, Turkish Power, EU:C:2006:368).

35. With regard to the assessment of the dominant character of one or more given components of a complex trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the complex mark (23/10/2002, T-6/01, Matratzen, EU:T:2002:261, § 35).

36. The marks to be compared are:

	0909 zeronove zeronove
Earlier mark	Contested sign

37. The earlier mark is a figurative mark depicting the word ‘zero’ in lower-case, in a slightly stylised typeface, in which the spaces between the letters is greater than usual i.e. about half the length of the letters in the word. The contested sign is the word mark ‘0909 zeronove zeronove’.

38. For the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods for which the mark has been registered (03/09/2010, T-472/08, 61 a nossa alegria, EU:T:2010:347, § 47 and the case-law cited therein).

39. In the present case, the marks at issue do not have an element that might be considered as being more distinctive. Besides, as the opponent did not claim that its mark is particularly distinctive by virtue of its use or reputation, and because the mark has no meaning in respect of the earlier goods and services, the distinctiveness of the earlier mark must be seen as normal.

40. The signs at issue do not have an element that is more dominant.

41. Visually the signs are similar to the extent that they have in common the sequence of letters ‘z-e-r-o’. However they have many differences. In the first place, they do not have the same length. The earlier mark has four letters, whereas the contested sign consists of four numbers at the beginning followed by sixteen letters. Moreover, the earlier mark is not highly stylized, even in its typeface. Therefore, the signs are visually similar to a low degree.

42. Aurally, irrespective of the different pronunciation in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‘Z-E-R-O’. However, the contested sign adds a significant number of elements to the word ‘zero’, namely ‘0-9-0-9’ and ‘N-O-V-E-Z-E-R-O-N-O-V-E’. Depending on the territory, the pronunciation of the numbers will be different and this will in turn affect the differences between the syllables in both marks. To that extent, in some languages, the sound of the signs may coincide in their first two syllables ‘ZE/RO’. For example, in English, the contested sign will be pronounced, ‘ZE-RO-NINE-ZE-RO-NINE-ze-ro-no-ve-ze-ro-no-ve’, in French ‘ZE-RO-NEUF-ZE-RO-NEUF-ze-ro-no-ve-ze-ro-no-ve’ and in Italian ‘ZE-RO-NO-VE-ZE-RO-NO-VE-ze-ro-no-ve-ze-ro-no-ve’. However, in other languages, the number ‘0’ is pronounced as ‘null’ or ‘nul’, such as in German or in Dutch, which increases the aural difference between the signs, as the first syllables of the contested sign will be pronounced differently, e.g. ‘zero’ in case of the earlier mark versus ‘nul(l)’ in case of the contested sign. In any event, the signs at issue clearly have different lengths and rhythms. The signs are considered to be phonetically similar, at the very most, to an average degree.

43. From a conceptual perspective, the Board agrees with the Opposition Division’s reasoning and findings. It explained that regarding the earlier mark all relevant consumers are likely to recognise and understand the English word ‘ZERO’ as meaning ‘nothing’, ‘null’ or ‘nil’ or to refer to the cardinal number. This is because, firstly, it exists identically or nearly identically in many European Union languages, such as Italian (‘zero’), French (‘zéro’), Spanish (‘cero’), Portuguese (‘zero’), Maltese (‘żero’), Polish (‘zero’) and Romanian (‘zero’). Furthermore, as established by the Court on various occasions, the average consumer in the European Union as a whole would understand certain English words (21/01/2010, T‑309/08, G Stor, EU:T:2010:22, § 32; 16/01/2008, T‑112/06, Idea, EU:T:2008:10, § 69; 03/03/2004, T‑355/02, Zirh, EU:T:2004:62, § 46). In the present case, ‘zero’ is deemed to be such a common word.

44. In the contested sign, however, the ‘0909’ element will be perceived as a sequence of numbers. The element ‘zeronove’ depicted twice will be perceive either as meaning ‘zero nine’ by part of the public, especially because of the numbers written at the beginning of the sign. However, it cannot be denied that part of the public will perceive these elements as meaningless. Taken as a whole, the sign could be perceived as a sequence of numbers or as a code.

45. The opponent states that part of the public might understand ‘ZERONOVE’ as meaning ‘new zero’. However, considering that the verbal element follows the ‘0909’ element, the Board finds that the public is unlikely to perceive ‘nove’ as ‘new’.

46. For the part of the public that will perceive the reference to the cardinal number zero in the signs at issue, they have to be considered conceptually similar. However, for part of the public that will perceive the earlier mark as meaning ‘nothing, null or nil’ and the contested sign as having the meaning of a code or a sequence, the signs are conceptually dissimilar. Finally, for part of the public that will understand the earlier mark as meaning nothing, null or nil or referring to cardinal numbers and the contested sign as being meaningless, the signs are not conceptually similar.

Global assessment

47. The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (eighth recital of the CTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18 and 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).

48. Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular, the similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 20; 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 24 and 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).

49. The contested goods and services have been found partly identical and partly similar to the earlier goods and services. As regards the signs, they have been found visually and aurally at most similar. The signs have been found conceptually similar only for part of the public.

50. The opponent argued that in the contested sign, the numbers will not be perceived as a brand. It added that considering the repetition of the ‘zeronove’ element, the relevant public will take into account only one of them. To that extent, the comparison of the signs should be based only on the elements / zeronove. However, the assessment of the similarity between two marks must be made by examining each of the marks at issue as a whole (12/06/2007, C‑334/05 P, Limoncello, EU:C:2007:333 , § 41).

51. In the present case, the marks at issue do not have any elements that might be considered more distinctive or more dominant, nor do they have any non-distinctive elements. Therefore, all elements will be taken into consideration. The contested sign consists of sixteen letters and four numbers, whereas the earlier mark consists of only four letters.

52. The opponent argued that the earlier mark is entirely included in the contested sign. This argument is not exactly correct, considering that the earlier mark is a figurative sign with a slight stylization. Moreover, it should be recalled that it is of particular importance whether the letters the signs have in common can be identified in an isolated manner in the composite mark, for example because it is separated by a space or hyphen or is identified as an individual element. However, in the present case, the common sequence of letters in the contested mark appears after the numbers, and is coupled with ‘NOVE’ or with the pronunciation of the number ‘9’. Therefore, the ‘ZERO’ element will not be perceived as an individual element, but is blended in with many other characters.

53. The fact that both signs share the sequence of letters ‘Z-E-R-O’ is not sufficient to rule out the important visual and aural differences, amongst other given the clearly different rhythms and lengths of the signs at issue. Moreover, consumers generally pay greater attention to the beginning of a mark than to the end (17/03/2004, T-183/02 and 17/03/2004, T‑183/02 & T‑184/02, Mundicor, EU:T:2004:79, § 51; 05/10/2011, T‑421/10, Rosalia de Castro, EU:T:2011:565, § 38). In the present case, the contested sign’s beginning visually clearly differs from that of the earlier mark.

54. Furthermore, it is relevant to recall that regarding the contested goods the Board considers that the visual aspect is, in general, particularly important. In shops selling goods such as clothes, footwear, headgear, consumers themselves may choose the articles they wish to buy, or request assistance from the sales staff. While oral communication concerning the product and the trade mark is not excluded, the choice of the item is generally made on a visual basis. Therefore, the visual perception of the marks in question generally occurs before purchase. Accordingly, even though the aural aspect cannot be disregarded, the visual aspect normally plays a greater role in the global assessment of the likelihood of confusion, as correctly stated in the contested decision (06/10/2004, T-117/03–T‑119/03 & T-171/03, NL, EU:T:2004:293, § 50). It is noted that in the present case, the signs are visually only similar to a low degree.

55. With regard to applicant’s reference to several other decisions of the Office in order to support its arguments, it must be recalled that the Community trade mark regime is an autonomous system and that the legality of the decisions of Boards of Appeal must be assessed solely on the basis of the CTMR, and not the Office’s practice in earlier decisions (15/09/2005, C-37/03 P, BioID, EU:C:2005:547, § 47; 22/06/2005, T-19/04, Paperlab, EU:T:2005:247, § 39). In addition, the examples cited are typically first-instance Office decisions. For instance, in all the decisions quoted by the opponent, the word element ‘zero’ is located at the beginning of the sign. Moreover, the ‘zero’ element is either clearly separated from the other elements or followed by a few characters.

56. The opponent also referred to a judgment of the Court of Justice (16/09/2009, T‑400/06, zerorh+, EU:T:2009:331). However, the situation in the case leading to that judgment was completely different. The contested mark was a figurative sign consisting of the ‘ZERO’ element located at the beginning of the sign. Moreover, the ‘ZERO’ element was depicted in red whereas the other sign’s verbal element were depicted in white, separating it clearly from other elements.

57. Bearing in mind the above, the Board considers that the important differences stemming from the visual comparison cannot be overcome by the fact that the marks at issue share a common sequence of letters.

58. Therefore, it must be held that the Opposition Division was correct to find that there was no likelihood of confusion.

59. In other words, bearing in mind, in particular, the low degree of visual and relatively low aural similarity between the marks, the Board finds that the consumers targeted are not likely to believe that the identical and similar goods and services covered by the marks at issue come from the same undertaking or from economically-linked undertakings, despite the conceptual similarity for part of the public, the fact that the consumer rarely has the chance to make a direct comparison between the different marks, and despite the partial identity and similarity of the goods and services covered by the specifications of the conflicting signs.

60. For the reasons given above, the contested decision is confirmed and the appeal is dismissed.

Costs

61. Since the opponent is the losing party in the appeal proceedings within the meaning of Article 85(1) CTMR, it must bear the fees and costs pursuant to Article 85(6) CTMR.

Fixing of costs

62. Pursuant to Article 85(1) CTMR, the opponent, as the losing party, must bear the costs of the appeal proceedings. However, since the applicant was not represented, it is not entitled to be compensated for costs of professional representation (Rule 94(3) and (7)d CTMIR). As a result, no apportionment of costs will be made in the appeal proceedings. The contested decision ordered the same in respect of the costs of the opposition proceedings. This order remains unchanged.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Makes no apportionment of costs in the appeal and the opposition proceedings.

Signed T. de las Heras

Signed C. Govers

Signed C. Negro

Registrar: Signed H.Dijkema