OPPOSITION No B 2 572 884

Möbel Inhofer GmbH & Co. KG, Ulmer Str. 50, 89250 Senden, Germany (opponent), represented by Charrier Rapp & Liebau, Fuggerstr. 20, 86150 Augsburg, Germany (professional representative)

a g a i n s t

Andrej Sitár, Lípy 87, 783 42 Slatinice, Czech Republic and RNDr. Fryčák Josef, U Sokolovny 278, 783 14 Bohuňovice, Czech Republic (applicants), represented by Zdeněk Kučera, Dlouhá 207, 763 15 Slušovice, Czech Republic (professional representative).

On 17/06/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 572 884 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 13 827 423, namely against all the goods in Class 20. The opposition is based on European Union trade mark registration No 11 066 149. 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 and services

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

Class 11: Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes.

Class 20: Furniture, mirrors, picture frames; Goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

Class 35: Wholesaling and retailing of furniture and other furnishings in retail outlets, via mail order and/or in online shops.

The contested goods are the following:

Class 20: Furniture; Furniture of all kinds, including of metal, of wood, of plastic, modular furniture; Kitchens, kitchen units; Chairs; Tables; Cupboards, fitted cupboards; Beds; Settees, all of natural and artificial materials, including furniture accessories not of metal; Decorations and works of art of wood; Individual mirrors; Mirrors, as parts of furniture and interior decor; bespoke furniture; Cabinet work.

An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods. The term ‘including’, used in the applicant’s list of goods, indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (see the judgment of 09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

Contested goods in Class 20

The contested furniture; furniture of all kinds, including of metal, of wood, of plastic, modular furniture are identically contained in both lists of goods and services (including synonyms).

The contested kitchens, kitchen units; chairs; tables; cupboards, fitted cupboards; beds; settees, all of natural and artificial materials, including furniture accessories not of metal; bespoke furniture; cabinet work are included in the broad category of the opponent’s furniture. Therefore, they are identical.

The contested Individual mirrors; mirrors, as parts of furniture and interior decor are included in the broad category of the opponent’s mirrors. Therefore, they are identical.

The contested decorations and works of art of wood are included in the broader category of the opponent’s goods (not included in other classes) of wood. Therefore, they are identical.

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 mainly at the public at large. The degree of attention may vary from average to high depending on the frequency of purchase and price of the goods. For example, some of the goods (such as kitchens) can be relatively expensive household items and are not bought on an everyday basis. Therefore, the level of attention is heightened. As regards other goods, for example, mirrors, the level of attention will be mostly average.

3. The signs

interni
Earlier trade mark	Contested sign

The relevant territory is the European Union.

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

The earlier mark is a word mark consisting of the word element ‘interni’.

The contested sign is a figurative mark and consists of the verbal element ‘yntery’, written in stylised bold lowercase letters. The first and the last letter ‘y’, as well as the letter ‘e’ are highly stylised and the first letter ‘y’ is also inverted.

The earlier mark consists of only one component. It has a meaning in Italian ‘internal, interiors’. Bearing in mind that the relevant goods are furniture, the inherent distinctive character of this element is reduced, as it may indicate that the goods are meant for the interior. Therefore, the distinctiveness of this element is low in relation to the Italian-speaking part of the public in relation to the relevant goods.

The word ‘interni’ has a meaning in Romanian, in particular ‘internal (adj. m. pl.), interns (n.pl.)’. However, its distinctiveness is normal in relation to the relevant goods. This is because its connotation in Romanian is not descriptive or allusive in relation to furniture.

As regards the remaining part of the relevant public, the inherent distinctiveness of the earlier mark is normal in relation to the goods. In addition, the earlier mark has no element that could be considered more dominant (visually eye-catching) than other elements.

The contested mark has no elements that could be considered clearly more dominant (visually eye-catching) or distinctive than other elements. Its inherent distinctiveness is normal in relation to the relevant goods.

Visually, the signs coincide in the sequence of letters ‘nter’. They differ in the first letter ‘i’ and the last letters ‘ni’ of the earlier mark and in the first and the last letter ‘y’ of the contested sign. It must be noted that the first and the last letter ‘y’ of the contested sign are stylised in a very unusual and eye-catching manner. The first letter is also inverted and may not even be recognised as a letter. This creates a very specific visual impression, which is quite detached from that of the mere word element of the earlier mark starting with another letter. As a result, the coincidence in the letters ‘nter’ (appearing hidden within the signs) is not particularly noticeable. Therefore, in view of the aforementioned, it is considered that the signs are visually similar to a very low degree.

Aurally, depending on the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides most when they are pronounced as /interni/ and /interi/, that is, when the first and last letters ‘y’ in the contested sign are recognised and pronounced as the phoneme ‘i’ (for example, by the Italian, Hungarian, Estonian, Slovenian and Czech-speaking part of the public). For these consumers, the pronunciation differs only in the sound of the additional penultimate letter ‘n’ of the earlier sign, which has no counterpart in the contested mark. Therefore, the signs are aurally similar to a high degree. However, as regards other territories, the degree of aural similarity decreases to average and even low degree depending on, for example, the particular manner in which the vowels in both signs are pronounced and whether all the letters of the contested sign are recognised and pronounced. Therefore, bearing in mind the foregoing, the Office considers that there is, at best, a high degree of aural similarity.

Conceptually, as mentioned above the contested sign lacks any meaning in the relevant territory. The earlier sign has a meaning in Italian (internal, interiors) and Romanian ‘internal (adj. m. pl.), interns (n.pl.)’. Therefore, in relation to the consumers which would perceive a meaning in the earlier sign and no meaning in the contested sign, the signs are not conceptually similar. In relation to the remaining part of the public, neither of the signs has a meaning. 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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as low for all the goods in question in relation to the Italian-speaking part of the public.

As regards the remaining part of the public, the earlier trade mark as a whole has no (descriptive) 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

The contested goods are identical to the opponent’s goods and they are directed mainly at the public at large. The degree of attention of the relevant public may vary from average to high.

In the present case, the signs are visually similar to a very low degree. This is particularly relevant in the present case in view of the nature of the goods. Furniture goods are normally bought only after a visual inspection and, as a consequence, consumers are guided by the visual impact of the mark. Whilst oral communication in respect of the product and the trade mark is not excluded, the choice of the item of furniture is generally made visually. Therefore, the visual perception of the marks in question will generally take place prior to purchase. Accordingly the visual aspect plays a greater role in the global assessment of the likelihood of confusion (06/10/2004, T‑117/03 - T‑119/03 & T‑171/03, NL, EU:T:2004:293, § 50). Therefore, the considerable visual differences between the signs caused overwhelmingly by the highly stylised beginning and final letters of the contested sign are particularly relevant when assessing the likelihood of confusion between them.

Even in territories where the signs are aurally similar to a high degree, the visual aspect of the contested sign will dispel any possible likelihood of confusion between the signs. The coinciding letters ‘nter’ in the signs do not occupy an independent and autonomous distinctive role in neither of the signs. There is no reason why the public will associate the marks with a common trade origin. Consumers are not in the habit of analysing and dissecting trade marks. On the contrary, the average consumer normally perceives a mark as a whole and does not proceed to analyse its details. The contested sign is sufficiently removed from the earlier mark and any existing similarity is diluted in the overall impression created by the signs.

Finally, depending on the perception of the earlier mark by the different relevant public, the conceptual aspect does not influence the assessment of the similarity of the signs or the signs are not similar. Therefore, the relevant public will not establish any conceptual link between the signs either.

Bearing in mind all the above factors, the Opposition Division considers that the similarities between the marks are not sufficient to trigger a likelihood of confusion on the part of the public. Despite the coincidences mentioned, the described differences between the signs are sufficient to exclude any likelihood of confusion on the part of the public.

Considering all the above, there is no likelihood of confusion on the part of the public. Therefore, 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

Julia TESCH

Liliya YORDANOVA

Gueorgui IVANOV

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 must be filed in writing at the Office within two months of the date of notification of this decision. It must 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 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 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.