OPPOSITION No B 2 589 722

Binter Sistemas, S.L., Calle Cañon Del Ambar Sn, 35219 Telde, Las Palmas De Gran Canaria, Spain (opponent), represented by Clarke, Modet y Cía. S.L., Rambla de Méndez Núñez, 12 - 1º Puerta 2 bis, 03002 Alicante, Spain (professional representative)

a g a i n s t

Tech-Audio Co., LTD, 1F., No.14, Aly. 5, Ln. 216, Zhongxing Rd., Longtan Dist., Taoyuan City 325, Taiwan (applicant), represented by 2K Patentanwälte Blasberg Kewitz & Reichel Partnerschaft mbB, Schumannstrasse 27, 60325 Frankfurt am Main, Germany (professional representative).

On 29/03/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 589 722 is upheld for all the contested goods.

2. European Union trade mark application No 14 502 223 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 European Union trade mark application No 14 502 223. The opposition is based on European Union trade mark registration No 11 801 181. 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 9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; Apparatus for recording, transmission or reproduction of sound or images; Magnetic data carriers, recording discs; Compact discs, DVDs and other digital recording media; Mechanisms for coin-operated apparatus; Cash registers, calculating machines, data processing equipment, computers; Computer software; Fire-extinguishing apparatus; Abacuses; Protection devices for personal use against accidents; Particle accelerators; Acid hydrometers; Azimuth instruments; Connections for electric lines; Acoustic couplers; Couplers [data processing equipment]; Actinometers; Accumulators, electric; Cleaning apparatus for phonograph records; Aerometers; Electronic agendas; Surveying instruments; Electro-dynamic apparatus for the remote control of railway points; Styli for record players; Air analysis apparatus; Stills for laboratory experiments; Alarms; Anti-theft warning apparatus; Fire alarms; Sound alarms; Alcoholmeters; Fuse wire; Mouse pads; Alidades; Food analysis apparatus; Loudspeakers; Altimeters; Asbestos clothing for protection against fire; Ammeters; Enlarging apparatus [photography]; Amplifiers; Testing apparatus not for medical purposes; Anemometers; Calibrating rings; Anodes; Aerials; Surveyors' levels; Anticathodes; Cathodic anti-corrosion apparatus; Anti-interference devices [electricity]; Anti-glare glasses; Theft prevention installations, electric; Global Positioning System [GPS] apparatus; Data processing apparatus; X-ray apparatus not for medical purposes; Apparatus and installations for the production of X-rays, not for medical purposes; Apertometers [optics]; Downloadable image files; Downloadable music files; Distribution boxes [electricity]; Safety restraints, other than for vehicle seats and sports equipment; Asbestos gloves for protection against accidents; Apparatus and instruments for astronomy; Audiovisual teaching apparatus; Headphones; Telephone receivers; Fire engines; Life saving apparatus and equipment; Scales; Precision balances; Lighting ballasts; Beacons, luminous; Road signs, luminous or mechanical; Life-saving rafts; Laboratory trays; Fire boats; Barometers; Weighbridges; Fire beaters; Acidimeters for batteries; Anode batteries; Batteries for lighting; Batteries, electric, for vehicles; Plates for batteries; Betatrons; Binoculars; Coils, electric; Holders for electric coils; Electromagnetic coils; Speaking tubes; Bags adapted for laptops; Fire pumps; Flashlights [photography]; Wire connectors [electricity]; Terminals [electricity]; Push buttons for bells; Marking buoys; Signalling buoys; Tone arms for record players; Identification threads for electric wires; Directional compasses; Marine compasses; Spirit levels; Coaxial cables; Starter cables for motors; Fibre [fiber (Am.)] optic cables; Cables, electric; Surveying chains; Eyeglass chains; Cabinets for loudspeakers; Battery boxes; Branch boxes [electricity]; Switchboxes [electricity]; Junction boxes [electricity]; Petri dishes; Containers for microscope slides; Cash registers; Automated teller machines [ATM]; Socks, electrically heated; Calculating machines; Pocket calculators; Boiler control instruments; Gauges; Calipers; Shoes for protection against accidents, irradiation and fire; Cinematographic cameras; Decompression chambers; Cameras [photography]; Juke boxes for computers; Signal bells; Workmen's protective face-shields; Solderers' helmets; Battery chargers; Chargers for electric batteries; Spools [photography]; Video game cartridges; Riding helmets; Protective helmets; Protective helmets for sports; Video cassettes; Telescopes; Cathodes; Galvanic cells; Photovoltaic cells; Laboratory centrifuges; Locks, electric; Bullet-proof waistcoats; Life jackets; Chips [integrated circuits]; DNA chips; Cyclotrons; Apparatus for editing cinematographic film; Magnetic tapes; Demagnetizing apparatus for magnetic tapes; Sound recording strips; Head cleaning tapes [recording]; Life belts; Printed circuits; Integrated circuits; Clinometers; Copper wire, insulated; Magnetic encoders; Bar code readers; Collectors, electric; Comparators; Compasses [measuring instruments]; Laptop computers; Capacitors; Optical condensers; Ducts [electricity]; Materials for electricity mains [wires, cables]; Conductors, electric; Acoustic conduits; Electricity conduits; Connectors [electricity]; Electric apparatus for commutation; Commutators; Converters, electric; Traffic cones; Distribution consoles [electricity]; Contacts, electric; Meters; Answering machines; Regulating apparatus, electric; Speed checking apparatus for vehicles; Apparatus to check franking; Remote control apparatus; Electric installations for the remote control of industrial operations; Electro-dynamic apparatus for the remote control of signals; Cupels [laboratory]; Eyeglass cords; Cell phone straps; Logs [measuring instruments]; Cosmographic instruments; Dressmakers' measures; Circuit closers; Galena crystals [detectors]; Chromatography apparatus for laboratory use; Chronographs [time recording apparatus]; Darkrooms [photography]; Washing trays [photography]; Measuring spoons; Waling glasses; Milage recorders for vehicles; Revolution counters; Appliances for measuring the thickness of leather; Densimeters; Densitometers; Distillation apparatus for scientific purposes; Detectors; False coin detectors; Smoke detectors; Metal detectors for industrial or military purposes; Diaphragms [acoustics]; Diaphragms [photography]; Diaphragms for scientific apparatus; Diagnostic apparatus, not for medical purposes; Slides [photography]; Centering apparatus for photographic transparencies; Animated cartoons; Dictating machines; Diffraction apparatus [microscopy]; Dynamometers; Money counting and sorting machines; Light-emitting diodes [LED]; Phonograph records; Compact discs [audio-video]; Calculating disks; Disks, magnetic; Optical discs; Compact discs [read-only memory]; Reflecting discs for wear, for the prevention of traffic accidents; Shutter releases [photography]; Floppy disks; Distance measuring apparatus; Ticket dispensers; Circuit breakers; Dosimeters; Marine depth finders; Electrolysers; Transmitters of electronic signals; Transmitting sets [telecommunication]; Couplings, electric; Electric apparatus for remote ignition; Plugs, sockets and other contacts [electric connections]; Material testing instruments and machines; Epidiascopes; Balancing apparatus; Ergometers; Fire escapes; Sounding leads; Scanners [data processing equipment]; Teaching apparatus; Photographic racks; Spherometers; Spectrograph apparatus; Mirrors for inspecting work; Mirrors [optics]; Apparatus for measuring the thickness of skins; Drying racks [photography]; Stereoscopic apparatus; Stereoscopes; Stroboscopes; Cases fitted with dissecting instruments [microscopy]; Cases especially made for photographic apparatus and instruments; Spectacle cases; Containers for contact lenses; Eyeglass cases; Electronic tags for goods; Temperature indicator labels, not for medical purposes; Exposure meters [light meters]; Fire-extinguishing apparatus; Invoicing machines; Facsimile machines; Apparatus for fermentation [laboratory apparatus]; Light conducting filaments [optical fibers [fibres]]; Mechanisms for counter-operated apparatus; Filters for ultraviolet rays, for photography; Filters [photography]; Filters for respiratory masks; Apparatus and instruments for physics; Flash-bulbs [photography]; Blueprint apparatus; Photocopiers [photographic, electrostatic, thermic]; Glazing apparatus for photographic prints; Drying apparatus for photographic prints; Photometers; High-frequency apparatus; Frequency meters; Identification sheaths for electric wires; Sheaths for electric cables; Sleeves for laptops; Fuses; Sunglasses; Spectacles [optics]; Jigs [measuring instruments]; Galvanometers; Gas testing instruments; Gasometers [measuring instruments]; Surveying apparatus and instruments; Meteorological balloons; Sound recording apparatus; Sound recording carriers; Video recorders; Marking gauges [joinery]; Gloves for divers; Gloves for protection against accidents; Gloves for protection against X-rays for industrial purposes; Heliographic apparatus; Hydrometers; Hygrometers; Wires, electric; Magnetic wires; Telephone wires; Telegraph wires; Holograms; Ovens for laboratory use; Magnets; Decorative magnets; Printers for use with computers; Incubators for bacteria culture; Automatic indicators of low pressure in vehicle tires; Quantity indicators; Petrol gauges; Electric loss indicators; Temperature indicators; Speed indicators; Water level indicators; Armatures [electricity]; Inductors [electricity]; Intercommunication apparatus; Interfaces for computers; Carriers for dark plates [photography]; Switches, electric; Inverters [electricity]; Ionization apparatus not for the treatment of air or water; Rods [surveying instruments]; Hands free kits for phones; Lactodensimeters; Optical lamps; Darkroom lamps [photography]; Fire hose nozzles; Electronic pens [visual display units]; Lasers, not for medical purposes; Cassette players; Compact disc players; DVD players; Readers [data processing equipment]; Optical character readers; Correcting lenses [optics]; Contact lenses; Instruments containing eyepieces; Optical lenses; Spectacle lenses; Lens hoods; Neon signs; Signs, luminous; Mechanical signs; Limiters [electricity]; Signal lanterns; Magic lanterns; Safety tarpaulins; Blinkers [signalling lights]; Magnifying glasses [optics]; Tape recorders; Wind socks for indicating wind direction; Fire hose; Junction sleeves for electric cables; Crash test dummies; Resuscitation mannequins [teaching apparatus]; Manometers; Fire blankets; Hemline markers; Frames for photographic transparencies; Digital photo frames; Protective masks; Respirators, other than for artificial respiration; Mathematical instruments; Measuring apparatus; Measuring devices, electric; Measuring instruments; Precision measuring apparatus; Measures; Speed measuring apparatus [photography]; Megaphones; Computer memory devices; USB flash drives; Mercury levels; Meteorological instruments; Metronomes; Rules [measuring instruments]; Microphones; Microprocessors; Microscopes; Microtomes; Sighting telescopes for firearms; Peepholes [magnifying lenses] for doors; Furniture especially made for laboratories; Modems; Monitors [computer hardware]; Monitors [computer programs]; Spectacle frames; Eyeglass frames; Nautical apparatus and instruments; Naval signalling apparatus; Navigation apparatus for vehicles [on-board computers]; Satellite navigational apparatus; Navigational instruments; Levelling instruments; Levels [instruments for determining the horizontal]; Verniers; Lenses for astrophotography; Objectives [lenses] [optics]; Wafers for integrated circuits; Observation instruments; Shutters [photography]; Octants; Eyepieces; Punched card machines for offices; Ohmmeters; Wavemeters; Optical goods; Optical apparatus and instruments; Computers; Notebook computers; Oscillographs; Egg-candlers; Oxygen transvasing apparatus; Ozonisers [ozonators]; Horns for loudspeakers; Micrometers; Signalling panels, luminous or mechanical; Asbestos screens for firemen; Projection screens; Video screens; Fluorescent screens; Screens [photography]; Radiology screens for industrial purposes; Spark-guards; Lightning arresters; Parking meters; Film cutting apparatus; Cinematographic film, exposed; X-ray films, exposed; Films, exposed; Computer peripheral devices; Periscopes; Letter scales; Weighing apparatus and instruments; Weighing machines; Lactometers; Weights; Slide calipers; Stands for photographic apparatus; Batteries, electric; Galvanic batteries; Solar batteries; Steering apparatus, automatic, for vehicles; Nose clips for divers and swimmers; Pipettes; Pyrometers; Plane tables [surveying instruments]; Planimeters; Plumb lines; Plumb bobs; Plotters; Pedometers; Polarimeters; Masts for wireless aerials; Pressure measuring apparatus; Mechanisms for coin-operated apparatus; Prisms [optics]; Test tubes; Central processing units [processors]; Computer operating programs, recorded; Computer programmes [programs], recorded; Computer programs [downloadable software]; Voltage surge protectors; Teeth protectors; Projection apparatus; Slide projectors; Apparatus for changing record player needles; Electronic publications, downloadable; Encoded identification bracelets, magnetic; Light-emitting electronic pointers; Pince-nez; Chemistry apparatus and instruments; Radar apparatus; Radios; Vehicle radios; Radio pagers; X-ray photographs, other than for medical purposes; Radiological apparatus for industrial purposes; Radiotelephony sets; Walkie-talkies; Radiotelegraphy sets; Electrified rails for mounting spot lights; Mouse [data processing equipment]; Spectroscopes; Protection devices against X-rays, not for medical purposes; Choking coils [impedance]; Audio- and video-receivers; Graduated glassware; Current rectifiers; Nets for protection against accidents; Life nets; Reducers [electricity]; Refractometers; Refractors; Distance recording apparatus; Pressure indicators; Time recording apparatus; Slide-rules; Carpenters' rules; Rulers [measuring instruments]; Stage lighting regulators; Speed regulators for record players; Voltage regulators for vehicles; Grids for batteries; Relays, electric; Hourglasses; Time clocks [time recording devices]; Rheostats; Wrist rests for use with computers; Sound reproduction apparatus; Personal stereos; Portable media players; Resistances, electric; Respirators for filtering air; Retorts; Sprinkler systems for fire protection; Juke boxes, musical; Knee-pads for workers; Balances [steelyards]; Clothing especially made for laboratories; Clothing for protection against fire; Screw-tapping gauges; Saccharometers; Salinometers; Life buoys; Satellites for scientific purposes; Railway traffic safety appliances; Traffic-light apparatus [signalling devices]; Semi-conductors; Fog signals, non-explosive; Signals, luminous or mechanical; Sextants; Whistle alarms; Signalling whistles; Dog whistles; Simulators for the steering and control of vehicles; Sirens; Computer game software; Computer software, recorded; Sonars; Sounding lines; Probes for scientific purposes; Sounding apparatus and machines; Sound transmitting apparatus; Sound locating instruments; Magnetic data media; Optical data media; Retorts' stands; Sulphitometers; Adding machines; Switchboards; Control panels [electricity]; Distribution boards [electricity]; Electronic notice boards; Tachometers; Covers for electric outlets; Ear plugs for divers; Pressure indicator plugs for valves; Printed circuit boards; Integrated circuit cards [smart cards]; Encoded magnetic cards; Identity cards, magnetic; Taximeters; Computer keyboards; Teleprompters; Telephone apparatus; Telephone transmitters; Portable telephones; Phototelegraphy apparatus; Telegraphs [apparatus]; Telemeters; Telerupters; Teleprinters; Television apparatus; Coin-operated mechanisms for television sets; Time switches, automatic; Theodolites; Thermometers, not for medical purposes; Heat regulating apparatus; Thermostats; Thermostats for vehicles; Bells [warning devices]; Alarm bells, electric; Electric door bells; Record players; Downloadable ring tones for mobile phones; Micrometer screws for optical instruments; Totalizators; Electronic pocket translators; Clothing for protection against accidents, irradiation and fire; Protective suits for aviators; Garments for protection against fire; Screens for photoengraving; Transformers [electricity]; Step-up transformers; Transistors [electronic]; Transmitters [telecommunication]; Transponders; Protractors [measuring instruments]; Vehicle breakdown warning triangles; Triodes; Tripods for cameras; Amplifying tubes; Capillary tubes; Electric discharge tubes, other than for lighting; Pitot tubes; X-ray tubes not for medical purposes; Vacuum tubes [radio]; Thermionic tubes; Magnetic tape units for computers; Disk drives for computers; Urinometers; Vacuum gauges; Electrified fences; Solenoid valves [electromagnetic switches]; Light dimmers [regulators], electric; Rods for water diviners; Variometers; Battery jars; Camcorders; Videotapes; Video telephones; Glass covered with an electrical conductor; Optical glass; Monitoring apparatus, electric; Viscosimeters; Anti-glare visors; Viewfinders, photographic; Voltmeters; Voting machines; Buzzers.

Class 35: Procurement services for others [purchasing goods and services for other businesses]; Updating of advertising material; Import-export agencies; Commercial information agencies; Publicity agencies; Rental of vending machines; Rental of advertising space; Rental of photocopying machines; Office machines and equipment rental; Publicity material rental; Rental of advertising time on communication media; Cost price analysis; Advisory services for business management; Business management assistance; Business auditing; Data search in computer files for others; Sponsorship search; Business research; Commercial or industrial management assistance; Price comparison services; Compilation of information into computer databases; Layout services for advertising purposes; News clipping services; Business management consultancy; Personnel management consultancy; Business organization consultancy; Business management and organization consultancy; Professional business consultancy; Accounting; Telephone answering for unavailable subscribers; Publicity columns preparation; Tax preparation; Shop window dressing; Demonstration of goods; Dissemination of advertising matter; Distribution of samples; Relocation services for businesses; Drawing up of statements of accounts; Marketing studies; Outsourcing services [business assistance]; Invoicing; Business management of hotels; Commercial administration of the licensing of the goods and services of others; Computerized file management; Business management of performing artists; Business inquiries; Commercial information and advice for consumers [consumer advice shop]; Business investigations; Marketing; Typing; Modelling for advertising or sales promotion; Payroll preparation; Employment agencies; Organization of fashion shows for promotional purposes; Arranging newspaper subscriptions for others; Psychological testing for the selection of personnel; Presentation of goods on communication media, for retail purposes; Economic forecasting; Production of advertising films; Sales promotion for others; On-line advertising on a computer network; Bill-posting; Direct mail advertising; Advertising by mail order; Radio advertising; Television advertising; Compilation of statistics; Writing of publicity texts; Public relations; Document reproduction; Secretarial services; Personnel recruitment; Business efficiency expert services; Photocopying services; Business management of sports people; Telemarketing services; Systemization of information into computer databases; Opinion polling; Arranging subscriptions to telecommunication services for others; Shorthand; Administrative processing of purchase orders; Transcription; Word processing; Business appraisals; Retail or wholesale services for pharmaceutical, veterinary and sanitary preparations and medical supplies; Auctioneering.

Class 42: Scientific and technological services and research and design relating thereto; Industrial analysis and research services; Design and development of computer hardware and software; Updating of computer software; Hosting computer sites [web sites]; Computer rental; Rental of web servers; Rental of computer software; Computer system analysis; Water analysis; Analysis for oil-field exploitation; Chemical analysis; Computer virus protection services; Architecture; Information technology [IT] consulting services; Energy auditing; Authenticating works of art; Calibration [measuring]; Construction drafting; Consultancy in the field of energy-saving; Architectural consultation; Web site design consultancy; Consultancy in the design and development of computer hardware; Computer software consultancy; Monitoring of computer systems by remote access; Quality control; Oil-well testing; Conversion of data or documents from physical to electronic media; Data conversion of computer programs and data [not physical conversion]; Creating and maintaining web sites for others; Design of interior decor; Digitization of documents [scanning]; Packaging design; Graphic arts design; Dress designing; Computer system design; Computer software design; Industrial design; Duplication of computer programs; Material testing; Textile testing; Clinical trials; Styling [industrial design]; Technical project studies; Quality evaluation of wool; Quality valuation of standing timber; Underwater exploration; Server hosting; Weather forecasting; Engineering; Vehicle roadworthiness testing; Installation of computer software; Bacteriological research; Biological research; Scientific research; Cosmetic research; Physics [research]; Research in the field of environmental protection; Mechanical research; Geological research; Chemical research; Technical research; Research and development of new products for others; Land surveys; Maintenance of computer software; Oil-field surveys; Geological surveys; Surveying; Urban planning; Computer programming; Geological prospecting; Oil prospecting; Providing search engines for the internet; Chemistry services; Recovery of computer data; Handwriting analysis [graphology]; Provision of scientific information, advice and consultancy in relation to carbon offsetting; Scientific laboratory services; Cloud seeding; Software as a service [SaaS].

The contested goods are the following:

Class 9: DVD players; Disc players; Video players; Audio players; CD players; Laser disc players; Video disk players; Digital versatile disc players; Combination video players and recorders; Digital audio players; Radios; Audio devices and radio receivers; Phonograph turntables; Record player turntables; Record players; Phonograph record players; Headphones; Headphone amplifiers; Music headphones; Stereo headphones; Headphone-microphone combinations; In-ear headphones; Personal headphones for sound transmitting apparatuses; Personal headphones for use with sound transmitting systems; Speakers; Speakerphones; Monitor speakers; Car speakers; Audio speakers; Speakers for computers; Pairable wireless speakers; Speakers for record players; Audio speakers for home; Audio speakers for automobiles; Loudspeaker cabinets; Loudspeakers; Loudspeakers with built in amplifiers; Video mixers; Microphone mixers; Sound mixers; Audio mixing consoles; Audio mixing desks; Audio mixing apparatus; Sound mixing apparatus; Digital mixing desks; Sound mixers with integrated amplifiers; Audio processing apparatus; Audio frequency apparatus; Microphones; Amplifiers; Amplifier tuners; Digital amplifiers; Distribution amplifiers; Headphone amplifiers; Sound amplifiers; Stereo amplifiers; Audio amplifiers; Integrated audio amplifiers; Sound amplifying apparatus; Speaker enclosures; Audio speaker enclosures; Audio apparatus; Audio recordings; Audio receivers; Audiovisual apparatus; Audiovisual receivers; Car audio apparatus; Digital audio recorders; Multi-room audio devices; Preamplifiers; LCD monitors; Liquid crystal display (LCD) televisions; Extension cords; Electrical power extension cords; Electrical cords; Speakers for telephones; Laser lighting and sound controllers; Sound transmitting apparatus; Sounding apparatus and machines; Devices for streaming media content over local wireless networks; Video streaming devices; Apparatus for wireless transmission of acoustic information; Adapters for connection between media devices; Audio streaming devices; Devices for streaming audio, video or multimedia content.

Contested goods in Class 9

DVD players; radios; record players; headphones; loudspeaker cabinets; loudspeakers; microphones; amplifiers and audio receivers are identically contained in both lists of goods (including synonyms).

The contested disc players; video players; audio players; CD players; laser disc players; video disk players; digital versatile disc players; combination video players and recorders; digital audio players; audio devices and radio receivers; phonograph turntables; record player turntables; phonograph record players; headphone amplifiers; music headphones; stereo headphones; headphone-microphone combinations; in-ear headphones; personal headphones for sound transmitting apparatuses; personal headphones for use with sound transmitting systems; speakers; speakerphones; monitor speakers; car speakers; audio speakers; speakers for computers; pairable wireless speakers; speakers for record players; audio speakers for home; audio speakers for automobiles; loudspeakers with built in amplifiers; video mixers; microphone mixers; sound mixers; audio mixing consoles; audio mixing desks; audio mixing apparatus; sound mixing apparatus; digital mixing desks; sound mixers with integrated amplifiers; audio processing apparatus; audio frequency apparatus; amplifier tuners; digital amplifiers; distribution amplifiers; headphone amplifiers; sound amplifiers; stereo amplifiers; audio amplifiers; integrated audio amplifiers; sound amplifying apparatus; speaker enclosures; audio speaker enclosures; audio apparatus; audio recordings; audiovisual apparatus; audiovisual receivers; car audio apparatus; digital audio recorders; multi-room audio devices; preamplifiers; LCD monitors; liquid crystal display (LCD) televisions; speakers for telephones; laser lighting and sound controllers; sound transmitting apparatus; sounding apparatus and machines; devices for streaming media content over local wireless networks; video streaming devices; apparatus for wireless transmission of acoustic information; adapters for connection between media devices; audio streaming devices; devices for streaming audio, video or multimedia content are included in the broad category of the opponent’s apparatus for recording, transmission or reproduction of sound or images. Therefore, they are identical.

The contested extension cords; electrical power extension cords; electrical cords are included in the broad category of the opponent’s apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity. 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 at the public at large and the professional public. The degree of attention may vary from average to higher than average, depending on the specialised nature of the goods, the frequency of purchase and their price.

3. The signs

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 unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union 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). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The elements ‘atlantis’, ‘Atlantic’ and ‘TECHNOLOGY’ are meaningful in certain territories, for example, in those countries where English is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on, for instance, the Portuguese and Spanish-speaking part of the public such as Spain and Portugal, respectively, where English is not widely understood.

The earlier trade mark is figurative in nature, containing two word elements and one figurative element. The word element ‘atlantis’ is placed centrally and written in black slightly stylized lower-case lettering. The word element ‘TECHNOLOGY’, written in small black standard upper-case lettering, is located directly below the ‘atlantis’ element. The sign also comprises a figurative element located above the ‘atlantis’ element, which may be perceived as a blue and orange-coloured sphere with a disintegrating upper portion forming several smaller pieces that have the same previously indicated colours.

The contested sign is likewise figurative and is comprised of two word elements. The word element ‘Atlantic’ is written in bold black stylized lettering, with the figurative design of the initial upper-case ‘A’ alluding to a wave. The sign also contains the word element ‘TECHNOLOGY’, located directly below the ‘Atlantic’ element and written in black slightly stylized upper-case lettering.

It should be noted that both the earlier trade mark and the contested sign have no elements that could be considered clearly more dominant than other elements. The figurative elements in both signs do not convey any concept that would strikingly differentiate the signs; instead, their role in the signs is mostly ornamental and the public will immediately perceive them as graphic elements used to embellish and bring to their attention the word elements of the marks.

The word element ‘Atlantic’, contained in the contested sign, will be associated by the relevant public with the equivalent words in Portuguese ‘Atlântico’ and Spanish ‘Atlántico’, given their linguistic proximity with the English word in question. As this element is not descriptive, allusive or otherwise weak for the relevant goods, it is distinctive.

The word element ‘atlantis’ of the earlier mark does not exist as a meaningful word for the relevant public. However, the syntactic resemblance of this element with the previously discussed Portuguese and Spanish words for ‘Atlantic’ will cause the relevant public to associate ‘atlantis’ with the concept of ‘relating to or adjoining the Atlantic Ocean’. Consequently, it is likewise distinctive for the goods in question.

The word element ‘TECHNOLOGY’, contained in both signs, will be associated by the relevant public with the equivalent words in Portuguese ‘tecnologia’ and Spanish ‘tecnología’, given their grammatical resemblance with the English word in question. Bearing in mind that the relevant goods are sound, image and electrical technology-related, this element is weak, as it alludes to the nature of these goods.

Visually, the signs coincide in the sequence of letters ‘ATLANTI-’, which are the first seven letters (out of eight) of the word element ‘atlantis’ of the earlier mark and the first seven letters (out of eight) of the word element ‘Atlantic’ of the contested sign. They also share the word element ‘TECHNOLOGY’, which is identically placed in the lower portion of both signs.

However, the ‘atlantis’ and ‘Atlantic’ word elements differ due to the initial upper-case ‘A’ and final letter ‘c’ of the ‘Atlantic’ element. The signs also diverge due to their previously described stylizations, including the presence of a purely figurative element in the upper portion of the earlier mark.

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). Therefore, the signs are visually similar to an average degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territories on which the comparison of signs is focused, the pronunciation of the signs coincides in the sound of the letter string ‘ATLANTI-’, identically present in the beginning of both signs, which also share the pronunciation of the common word element ‘TECHNOLOGY’. The signs differ in the sound of the final letter ‘s’ of the earlier right’s ‘atlantis’ word element and the final letter ‘c’ of the contested sign’s ‘Atlantic’ word element.

The initial phonetic parts of the first verbal elements of the conflicting marks are identical, as was previously described. Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. Furthermore, they identically share the pronunciation of their second verbal elements. Therefore, the signs are aurally highly similar.

Conceptually, as was referred above, the signs have no elements that could be considered clearly more dominant than other elements, while the respective figurative elements do not create strong conceptual differences. The distinctive word element ‘Atlantic’, contained in the contested sign, will be associated by the relevant public with the equivalent words in Portuguese and Spanish. Furthermore, the distinctive word element ‘atlantis’ of the earlier mark will be associated by the relevant public with the concept of ‘relating to or adjoining the Atlantic Ocean’, given its syntactic resemblance with the Portuguese and Spanish words for ‘Atlantic’. Likewise, the common word element ‘TECHNOLOGY’, albeit weak, will also be associated by the relevant public with the equivalent words in Portuguese and Spanish. To that extent, the signs are conceptually highly similar.

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, despite the presence of a weak element in the mark, as was stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

As has been concluded above, the contested goods are identical and the signs are visually similar to an average degree, while aurally and conceptually they are highly similar.

Account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, §  54).

In the present case, the signs under comparison have no elements that could be considered clearly more dominant than other elements, although the verbal components of the sign have a stronger impact on the consumer than the figurative components, which do not create clear conceptual differences between the signs. The signs coincide in the sequence of letters ‘ATLANTI-’, which are the first seven letters (out of eight) of the first word elements of the conflicting marks, as was previously described. Furthermore, the signs identically share their respective second word element ‘TECHNOLOGY’, which, although weak, creates a greater overall proximity between the marks in contention.

Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

Considering all the above, there is a likelihood of confusion on the part of the Portuguese and Spanish-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 European Union trade mark registration No 11 801 181. It follows that the contested trade mark must be rejected for all the contested goods.

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 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) and (6) and Rule 94(7)(d)(i) EUTMIR, 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

Gueorgui IVANOV

José Alexandre DE PAIVA ANDRADE TEIXEIRA

Dorothée 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 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.