OPPOSITION No B 2 522 442

Ingrid Antonie Kock, Blumenau 149, 22089 Hamburg, Germany (opponent), represented by Taylor Wessing, Isartorplatz 8, 80331 München, Germany (professional representative)

a g a i n s t

Koek Tekstil Ve Dis Ticaret Limited Sirketi, Evren Mahallesi Asli Sokak No:25 Kat.4 D.1, Istanbul 34212, Turkey (applicant), represented by A2 Estudio Legal, Calle Hermosilla 59, Bajo izquierda, 28001 Madrid, Spain (professional representative).

On 22/02/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 522 442 is upheld for all the contested goods.

2. Community trade mark application No 13 655 121 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against all the goods of Community trade mark application No 13 655 121. The opposition is based on, inter alia, Community trade mark registration No 10 077 386. The opponent invoked Article 8(1)(b) CTMR.

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

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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s Community trade mark registration No 10 077 386.

1. The goods

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

Class 25: Women’s, men’s and children’s outer clothing, underwear and hosiery; Women’s and children’s fine tights and fine stockings, Socks; Footwear; Headgear.

The contested goods are the following:

Class 25: Clothing; Footwear; Headgear.

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

The contested clothing includes, inter alia, and as a broader category, the opponent’s women’s outer clothing. 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 average.

3. The signs

KOCK
Earlier trade mark	Contested sign

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression bearing in mind their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The relevant territory is the European Union. The unitary character of the Community trade mark means that an earlier Community trade mark can be relied on in opposition proceedings against any application for registration of a Community trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application. In the present case, the Opposition Division finds it appropriate to focus the comparison of the signs on the French-speaking part of the relevant public.

The earlier mark is the word mark ‘KOCK’.

The contested sign is a figurative mark. It contains the verbal element ‘KOEK’ in standard black upper case letters and, below it, a black figurative element composed of two triangles and a circle. The elements are depicted on a square background.

The signs have no elements that could be considered clearly more distinctive or dominant (visually eye-catching) than other elements.

Visually, the signs coincide in the sequence of letters ‘KO*K’, present identically in both signs. However, they differ in their third letters, ‘C’ in the earlier mark and ‘E’ in the contested sign. The figurative element and the graphic features of the contested sign constitute further visual differences. Therefore, the signs are similar to an average degree.

Aurally, the sounds of the letters ‘K*CK’ in the earlier mark and ‘K*K’ in the contested sign are identical. The French public will pronounce the letters ‘oe’ in the contested sign either as [oɛ] or as [oe]. These sounds are highly similar to the sound of the letter ‘o’ in the earlier mark. Therefore, the signs are highly similar.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no 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 normal.

5. Global assessment, other arguments and conclusion

Likelihood of confusion implies some interdependence between the relevant factors and, in particular, between the degree of similarity between the marks and that 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 (judgment of 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17). In the present case, the relevant goods are identical.

The signs are visually similar and aurally highly similar because of their verbal elements, ‘KOCK’ in the earlier mark and ‘KOEK’ in the contested sign. The earlier mark has an average degree of distinctiveness and it is almost entirely incorporated in the contested sign. Moreover, the verbal element in the contested sign is written in a standard typeface that does not result in any significant difference between the verbal elements in the minds of consumers.

Regarding the figurative element and the rest of the graphic features of the contested sign, although the average consumer of the category of products concerned is deemed to be reasonably well-informed and reasonably observant and circumspect, average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (judgment of 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

Although the relevant goods are usually purchased after a visual examination, and, consequently, the visual impression may play a greater role, this broad principle does not mean that for goods that are normally purchased visually the phonetic impression can be overlooked (23/09/2011, T‑501/08, See more, EU:T:2011:527).

Therefore, taking into account the fact that the relevant goods are identical and that the signs are visually similar and aurally highly similar, there is a likelihood of confusion on the part of the French‑speaking part of the public. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Therefore, the opposition is well founded on the basis of the opponent’s Community trade mark registration No 10 077 386. It follows that the contested trade mark must be rejected for all the contested goods.

As earlier Community trade mark registration No 10 077 386 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier right invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

COSTS

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

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

According to Rule 94(3), (6) and (7)(d)(i) CTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Belen IBARRA DE DIEGO

Alexandra APOSTOLAKIS

Gueorgui IVANOV

According to Article 59 CTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 CTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. Furthermore, a written statement of the grounds of appeal must 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 800 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) CTMIR, 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 (Article 2(30) CTMFR) has been paid.