OPPOSITION No B 2 519 364

Zannier SAS, 6bis, rue Gabriel Laumain, 75010 Paris, France (opponent), represented by Laurence Sermet-Colly, Z.I. du Clos Marquet, 42402 Saint-Chamond Cedex, France (professional representative)

a g a i n s t

Shenzhen Zoweetek Electronics Limited, 4/F Building No. 1, Zhongkenuo Industrial Park, Hezhou Xixiang, Baoan District, Shenzhen City, People’s Republic of China (applicant), represented by Eurochina Intellectual Property, Calle San Mateo 65 – Local 1 ‘Llopis & Asociados’, 03012 Alicante, Spain (professional representative).

On 26/04/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 519 364 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against some of the goods of European Union trade mark application No 13 655 105, namely against all the goods in Class 25. The opposition is based on European Union trade mark registration No 8 189 292. The opponent invoked Article 8(1)(b) EUTMR.

LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.

1. The goods

The goods on which the opposition is based are the following:

Class 25: Clothing; underwear, bathrobes, bibs of fabric, footwear (except orthopaedic footwear); headgear.

The contested goods are the following:

Class 25: Clothing; trousers; outerclothing; shirts; trousers; singlets; topcoats; cyclists’ clothing; caps [headwear]; shawls; scarfs; pelerines; footwear; children’s garments; cheongsam; knitwear [clothing]; parkas; sports headgear [other than helmets]; headgear; children’s headwear; theatrical costumes; childrens’ clothing; infants’ clothing.

Contested goods in Class 25

Clothing; headgear are identically contained in both lists of goods.

The contested trousers; outerclothing; shirts; trousers; singlets; topcoats; cyclists’ clothing; shawls; scarfs; pelerines; children’s garments; cheongsam; knitwear [clothing]; parkas; theatrical costumes; childrens’ clothing; infants’ clothing are included in the broad category of, or overlap with, the opponent’s clothing. Therefore, they are identical.

The contested caps [headwear]; sports headgear [other than helmets]; children’s headwear are included in the broad category of the opponent’s headgear. Therefore, they are identical.

The contested footwear includes, as a broader category, the opponent’s footwear (except orthopaedic footwear). Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

2. Relevant public — degree of attention

The average consumer of the category of 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 degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods found to be identical are directed at the public at large. The degree of attention is considered to be average.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is 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 figurative mark consisting of a black upper case letter ‘Z’ in a fairly standard typeface, depicted within a white circle with a black outline.

The contested sign is a figurative mark consisting of a graphic element and a verbal element. The graphic element consists of a black circle with a white zigzag geometric shape within it, which, for part of the public, may resemble a highly stylised letter ‘z’; a small white rhombus is depicted above the zigzag. The verbal element ‘ZOWEETEK’, in fairly standard black upper case characters, is placed below the graphic element.

The earlier mark has no elements that could be considered clearly more distinctive than other elements.

The element ‘tek’ of the contested sign may be associated by part of the public (e.g. the French- and German-speaking parts), at least in the case of an aural transmission, with ‘technology’. Bearing in mind that the relevant goods are clothing, footwear and headwear, it is considered that this element is weak for these goods, as clothes or shoes with special features, for instance that provide wind or rain protection, offer breathability or have integrated pedometers, are sometimes referred to as high-tech clothing or footwear. The part of the relevant public who understands the meaning of that element will not pay as much attention to this weak element as to the other more distinctive elements of the mark. Consequently, the impact of this weak element is limited when assessing the likelihood of confusion between the marks at issue. For other parts of the public, for example the Spanish speaking part of the public, this prefix will be meaningless.

Neither of the marks has any element that could be considered clearly more dominant (visually eye-catching) than other elements.

Visually, the signs coincide in the letter ‘Z’, which is the only element of the earlier sign and the first letter of the word element of the contested sign. However, they differ in their stylisations, in the string of letters ‘OWEETEK’, and, for the part of the public that perceives the graphic element as a fanciful device, in the graphic element of the contested sign.

Part of the relevant public may perceive the zigzag-shaped element of the contested sign as a stylised letter ‘Z’. Nevertheless, even assuming that both signs will be perceived by some of the relevant consumers as, or as including, a depiction of the letter ‘Z’, these depictions are visually different in their stylisations and in the fanciful depiction of the letter ‘z’ in the contested sign. These differences render the earlier mark and the graphic element of the contested sign visually dissimilar.

Moreover, when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37; decisions of 19/12/2011, R 233/2011‑4, Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011‑5, Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).

As the signs coincide only in irrelevant aspects, namely the presence of the letter ‘z’ which is not perceptible as a separate element in the contested sign and will be perceived as part of the word ‘zoweetek’, it is concluded that the signs are not visually similar.

Aurally, the pronunciation of the marks is not similar, since the earlier mark will be pronounced, in accordance with the pronunciation rules in the various parts of the relevant territory, as ‘Z’, whereas the contested sign will most likely be pronounced as ‘ZOWEETEK’. This is because, even if part of the public perceives the letter ‘z’ in the graphic element of the contested mark, it will be considered to allude to the first letter of ‘ZOWEETEK’. Therefore, it is unlikely that the public will pronounce the graphic element of the contested sign as ‘Z’ when referring to the contested sign verbally.

Therefore, as the signs do not coincide aurally in any element, it is concluded that the signs are not aurally similar.

Conceptually, the relevant public will perceive the letter ‘Z’ as the letter that it represents, without associating it with any other specific meaning. The word ‘ZOWEETEK’ of the contested mark has no meaning for the public in the relevant territory. However, ‘TEK’, as stated above, may be perceived by part of the public as a suffix indicating that something is related to technology. Furthermore, although part of the public will perceive a letter ‘z’ in the graphic element of the contested mark, it will perceive it as a repetition of the initial letter of the word ‘ZOWEETEK’. Therefore, the fact that, for part of the public, both marks include the letter ‘z’ will not lead that part of the public to consider the signs conceptually similar. This is because, in the earlier mark, the letter ‘z’ will be perceived as an alphabetical letter and, in the contested sign, the same letter will be perceived as a stylised version of the initial letter of the word ‘ZOWEETEK’. Consequently, for this part of the public, the signs are dissimilar. For the rest of the public, the contested sign has no meaning. Therefore, for this part of the public, as only one sign has a meaning, the signs are not conceptually similar.

As the signs coincide only in irrelevant aspects, they are dissimilar.

4. Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the signs is a condition for a finding of likelihood of confusion. Since the signs are dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, 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.

The Opposition Division

Ana MUÑIZ RODRÍGUEZ

Eamonn KELLY

Dorothee SCHLIEPHAKE

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal shall be filed in writing at the Office within two months of the date of notification of this decision. It shall be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal shall be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.