OPPOSITION No B 2 657 578

Sony Interactive Entertainment Europe Limited, 10 Great Marlborough Street, W1F 7LP London, United Kingdom (opponent), represented by Boult Wade Tennant LLP, Salisbury Square House, 8 Salisbury Square, EC4Y 8AP London, United Kingdom (professional representative)

a g a i n s t

Huawei Technologies Co., Ltd., Administration Building Huawei Technologies Co., Ltd. Bantian, Longgang District, 518129 Shenzhen, Guangdong, China (applicant), represented by Boehmert & Boehmert Anwaltspartnerschaft mbB - Patentanwälte Rechtsanwälte, Hollerallee 32, 28209 Bremen, Germany (professional representative).

On 17/09/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 657 578 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 14 738 306 ‘GT10’, namely, against all of the goods and services in Classes 9, 14 and 35. The opposition is based on European Union trade mark registration No 820 738 for which the opponent invoked Article 8(1)(b) and 8(5) and on the United Kingdom non-registered trade mark ‘GT’ for which the opponent invoked Article  8(4) 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.

a) The signs

	GT10
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 figurative and consists of curved and straight lines in bold. The opponent argues that its mark depicts the letters ‘GT’ and that the public will refer to this mark as the letters ‘GT’. To support these arguments the opponent has submitted statements given by UKIE, ISFE and the opponent’s licensee Guillemot Corporation S.A., which state what the professionals think the final consumer’s opinion actually is. However, the opponent has not submitted any other additional evidence, such as opinion polls or surveys to confirm these statements and therefore, there is no actual proof that the end consumer would understand this meaning of this sign or that it proves anything about the perception of the public in relation to the figurative elements in question. In the Opposition Division’s opinion, their depiction is so stylised that without any clear reference or information indicating that the device represents the letters ‘GT’, these letters will not be recognised by the relevant public, but if anything, they may be understood as different letters such as ‘C.r’ or ‘Cor’. Since the comparison must be done between the earlier mark as it is registered, and there is no concrete indication about the perception of the letters that it represents on the part of the consumer, these arguments must be set aside.

The contested sign is a word mark consisting of the term ‘GT10’.

The distinctiveness of the marks’ elements will be assessed in relation to the following goods:

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

Class 9: Computer and video games; computer and video game programs; audio and video recordings; phonograph records, cassettes, tapes, compact discs, video discs, magnetic data media.

Class 16: Printed matter (excluding bicycle-related decals and bicycle-related posters); books; publications; stationery.

Class 28: Toys; games and playthings (excluding bicycles and bicycle accessories); electronic handheld games.

The contested goods are the following:

Class 9: Communications equipment; data communications apparatus; telecommunications apparatus; computers; portable computers; tablet computers; protective cases for tablet computers; wearable computers; smart bands; smart watches; smart watches comprised primarily of a wristwatch mainly for viewing, sending and receiving texts, emails, data and information and answering calls; wearable digital electronic devices comprised primarily of a wristwatch and also featuring a telephone, software and display screens for viewing, sending and receiving texts, emails, data and information from smart phones, tablet computers and portable computers; smartphones in the shape of a watch or a bracelet; smart bracelets with the functions of wireless technology standard for exchanging data over short distances using short-wavelength UHF radio waves in the ISM band and remote control for use with mobile phones which can display the caller's number and short message; smart wrist wearable bands with display screens for viewing, sending and receiving texts, emails, data and information and answering calls; smart eyeglasses for viewing, sending and receiving texts, emails, data and information and taking pictures; mobile phones; smartphones; protective cases for mobile phones; batteries for phones; earphones; headphones; audio equipment; stereos; wearable audio equipment; speakers; loudspeakers; set-top boxes; routers; wireless routers; communication software; application software; jewellery that communicate data; parts and fittings for all the aforesaid goods; exempt for goods being for or in relation to computer games software, computer games hardware, video games software, video games hardware.

Class 14: Watchbands, jewellery; horological and chronometric instruments; watches; bracelets; necklaces; watches that communicate data; parts and fittings for all the aforesaid goods; exempt for goods being for or in relation to computer games software, computer games hardware, video games software, video games hardware.

Class 35: Retail services in relation to communications equipment, data communications apparatus, telecommunications apparatus, computers, portable computers, tablet computers, protective cases for tablet computers, wearable computers, smart bands, smart watches, smart watches comprised primarily of a wristwatch mainly for viewing, sending and receiving texts, emails, data and information and answering calls; retail services in relation to wearable digital electronic devices comprised primarily of a wristwatch and also featuring a telephone, software and display screens for viewing, sending and receiving texts, emails, data and information from smart phones, tablet computers and portable computers; retail services in relation to smartphones in the shape of a watch or a bracelet; retail services in relation to smart bracelets with the functions of wireless technology standard for exchanging data over short distances using short-wavelength UHF radio waves in the ISM band and remote control for use with mobile phones which can display the caller's number and short message; retail services in relation to smart wrist wearable bands with display screens for viewing, sending and receiving texts, emails, data and information and answering calls; retail services in relation to smart eyeglasses for viewing, sending and receiving texts, emails, data and information and taking pictures; retail services in relation to mobile phones, smartphones, protective cases for mobile phones, batteries for phones; retail services in relation to earphones, headphones, audio equipment, stereos, wearable audio equipment, speakers, loudspeakers, set-top boxes, routers, wireless routers, communication software, application software, watchbands, jewellery, horological and chronometric instruments, watches, bracelets, necklaces, jewellery and watches that communicate data; advertising, marketing and promotional services; exempt for services being for or in relation to computer games software, computer games hardware, video games software, video games hardware.

The figurative element which makes up the earlier mark is composed of geometrical lines and shapes. As it does not have any meaning in relation to the goods for which it is registered, it is distinctive.

The combination of the letters and the number ‘GT10’, of which the contested sign is composed, does not have any particular meaning in relation to the relevant goods and is inherently normally distinctive.

Visually, the earlier mark is a figurative mark while the contested sign is a word mark. As mentioned above, the earlier mark is composed of an abstract device while the contested mark is composed of the letters and number ‘GT10’.

As the signs do not visually coincide in any element, it is concluded that the signs are not visually similar.

Aurally, purely figurative signs are not subject to a phonetic assessment. If the earlier mark is perceived as purely figurative, it is not possible to compare them aurally with the contested sign. If the earlier mark is perceived as the letters ‘C.r’ or ‘Cor’, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation differs in the sounds of every letter in the signs. Moreover, even though in some language of the relevant territory the signs could share some similarities in sound as regards the pronunciation of the number ‘10’, for example in Italian the number ‘10’ is pronounced as ‘dieci’ and therefore, could coincide in the sound of the letter ‘C’ of the earlier mark, this coincidence would be irrelevant due to the different position of the common sound in the signs and also the length of the marks as the pronunciation of the contested sign is longer.

Therefore this earlier mark is not aurally similar to the contested sign.

Conceptually, the contested sign refers to the concept of the individual letters and the number ‘GT10’, while the earlier mark will be perceived as an abstract device or if anything as different letters as mentioned above without any particular concept. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

As the signs do not coincide in any element, and if in anything, as mentioned above, they are irrelevant. Therefore, the signs are dissimilar.

b) 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.

This finding would still be valid even if the earlier trade mark were to be considered as enjoying a high degree of distinctiveness. Given that the dissimilarity of the signs cannot be overcome by the highly distinctive character of the earlier trade mark, the evidence submitted by the opponent in this respect does not alter the outcome reached above.

Given that the opposition is not successful under Article 8(1)(b) EUTMR, it is necessary to examine one of the other grounds on which the opposition is based, namely Article 8(5) EUTMR.

REPUTATION — ARTICLE 8(5) EUTMR

The opponent claims reputation for the European Union trade mark registration No 820 738 in Italy, Germany, the European Union, the United Kingdom, Spain and France for the figurative mark for goods in Classes 9 and 28.

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds for refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

 The signs must be either identical or similar.

 The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

 Risk of injury: use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T‑345/08 & T‑357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the above mentioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

a) The signs

The signs have already been compared above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings, which are equally valid for Article 8(5) EUTMR.

As the signs do not coincide in any element, it is concluded that they are dissimilar.

As seen above, similarity between the signs is a requirement for the opposition to be successful under Article 8(5) EUTMR. Since the signs are clearly dissimilar, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled. Therefore, the opposition must be rejected in so far as it is based on this ground, and there is no need to examine the other conditions laid down by Article 8(5) EUTMR (24/03/2011, C‑552/09 P, TiMiKinderjoghurt, EU:C:2011:177, § 66).

Given that the opposition is not well founded under Article 8(5) EUTMR, it is unnecessary to examine the evidence filed by the opponent to prove reputation, as the outcome would be the same.

Therefore, the Opposition Division will now examine the remaining ground on which the opposition is based, namely Article 8(4) EUTMR.

NON‑REGISTERED MARK OR ANOTHER SIGN USED IN THE COURSE OF TRADE — ARTICLE 8(4) EUTMR

The opposition is also based on the earlier non-registered trade mark with regard to the sign ‘GT’ used in the United Kingdom for computer game software; video game software; computer game controllers; computer game peripherals; racing seats; driving simulators; video game controllers; video game consoles; video game peripherals; retail services in relation to computer game software, video game software, computer game controllers, computer game peripherals, racing seats, driving simulators, video game controllers, video game consoles, video game peripherals; entertainment; organisation of competitions and events; organisation of racing competitions; online games services; online game tournaments; driving academy services.

According to Article 8(4) EUTMR, upon opposition by the proprietor of a non‑registered trade mark or of another sign used in the course of trade of more than mere local significance, the trade mark applied for will not be registered where and to the extent that, pursuant to the Union legislation or the law of the Member State governing that sign:

(a) rights to that sign were acquired prior to the date of application for registration of the European Union trade mark, or the date of the priority claimed for the application for registration of the European Union trade mark;

(b) that sign confers on its proprietor the right to prohibit the use of a subsequent trade mark.

Therefore, the grounds of refusal of Article 8(4) EUTMR are subject to the following requirements:

 the earlier sign must have been used in the course of trade of more than local significance prior to the filing of the contested trade mark;

 pursuant to the law governing it, prior to the filing of the contested trade mark, the opponent acquired rights to the sign on which the opposition is based, including the right to prohibit the use of a subsequent trade mark;

 the conditions under which the use of a subsequent trade mark may be prohibited are fulfilled in respect of the contested trade mark.

These conditions are cumulative. Therefore, where a sign does not satisfy one of those conditions, the opposition based on a non‑registered trade mark or other signs used in the course of trade within the meaning of Article 8(4) EUTMR cannot succeed.

a) Prior use in the course of trade of more than mere local significance

The condition requiring use in the course of trade is a fundamental requirement, without which the sign in question cannot enjoy any protection against the registration of a European Union trade mark, irrespective of the requirements to be met under national law in order to acquire exclusive rights. Furthermore, such use must indicate that the sign in question is of more than mere local significance.

It must be recalled that the object of the condition laid down in Article 8(4) EUTMR relating to use in the course of trade of a sign of more than mere local significance is to limit conflicts between signs by precluding an earlier right that is not sufficiently definite — that is to say, important and significant in the course of trade — from preventing registration of a new European Union trade mark. A right of opposition of that kind must be reserved for signs with a real and actual presence on their relevant market. To be capable of preventing registration of a new sign, the sign relied on in opposition must actually be used in a sufficiently significant manner in the course of trade, and its geographical extent must not be merely local, which implies, where the territory in which that sign is protected may be regarded as other than local, that the sign must be used in a substantial part of that territory. In order to ascertain whether that is the case, account must be taken of the duration and intensity of the use of the sign as a distinctive element for its addressees, namely purchasers and consumers as well as suppliers and competitors. In that regard, the use made of the sign in advertising and commercial correspondence is of particular relevance. In addition, the condition relating to use in the course of trade must be assessed separately for each of the territories in which the right relied on in support of the opposition is protected. Finally, use of the sign in the course of trade must be shown to have occurred before the date of the application for registration of the European Union trade mark (29/03/2011, C‑96/09 P, Bud, EU:C:2011:189, § 157, 159-160, 163, 166).

In the present case, the contested trade mark was filed on 26/10/2015. Therefore, the opponent was required to prove that the sign on which the opposition is based was used in the course of trade of more than local significance in the United Kingdom prior to that date. The evidence must also show that the opponent’s sign has been used in the course of trade for computer game software; video game software; computer game controllers; computer game peripherals; racing seats; driving simulators; video game controllers; video game consoles; video game peripherals; retail services in relation to computer game software, video game software, computer game controllers, computer game peripherals, racing seats, driving simulators, video game controllers, video game consoles, video game peripherals; entertainment; organisation of competitions and events; organisation of racing competitions; online games services; online game tournaments; driving academy services.

On 23/10/2018, 24/10/2018 and 20/12/2018 the opponent filed the following evidence:

Annex 1: Printout dated 22/10/2018 from the website https://beta.companieshouse.gov.uk/company, the United Kingdom Companies House showing change of name from Sony Computer Entertainment Europe Limited to Sony Interactive Entertainment Europe Limited in 2016 and other company data.

Annex 2: Extract from EUIPO’s website dated 22/10/2018 showing file information of the trademark on which the opposition is based, namely European Union trade mark registration No 820 738.

Annex 3: Online press articles dated from 2014 onwards relating to wearable technology and gaming.

Annex 4: Printout dated 23/10/2018 from the website https://en.wikipedia.or giving background information on the PlayStation Vita handheld console.

Annex 5: Witness Statement, dated 24/10/2018, of the Trade Mark and Anti-Piracy Manager of Sony Interactive Entertainment Europe Limited. It is explained that the Gran Turismo or GT video game is designed to be a realistic driving simulator. It was released in 1997 and 12 new versions were released from 1999 until 2017 to be used with the console PlayStation in its different versions. The statement provides unit sales of hard copy GT games sold to retailers prior to onward sale to the general public from 2011 to 2016 showing a total amount of unit sales in the United Kingdom of 184,167 in 2011, 243,264 in 2012, 292,212 in 2013, 62,544 in 2014 and 11,078 in 2015.

Annex 5.1: Background

Annex 5.1.1: Printout of the website https://en.wikipedia.org, dated 16/10/2018 with the following information: ‘GranTurismo […] (abbreviated GT) as a series of racing video games developed by Polyphony Digital’. ‘Developed for PlayStation systems […] are intended to emulate the appearance and performance of a large selection of vehicles’, ‘The GT Academy is a driver discovery/development program initiated in 2008’, ‘Online qualifiers are held within Gran Turismo, and the top qualifiers are invited to National Finals in each participating country. The top winners of each country are sent to a Race Camp held at Silverstone, UK for the final selection’; ’Based on this merit, four GT Academy drivers have been barred entry to the British GT (specifically the ‘gentleman driver’ section of the competition)’. ‘In the final issue of the Official UK PlayStation Magazine, Gran Turismo 2 was chosen as the 5^th best game of all time.

Annex 5.1.2: Printout of the website https://en.wikipedia.org, dated 16/10/2018 with the following information: ‘GT Academy as a television programme run by Nissan and PlayStation which provides an alternative route into mainstream Motorsport’; ’Since 2008, Race Camp has been based at Silverstone Circuit, UK, where the title of GT Academy Winner is awarded to whoever demonstrates the greatest potential to make the switch from Gran Turismo gamer to real racer’; ’ Since 2008, each season of GT Academy has followed with a reality entertainment TV series which has been broadcast in over 160 countries. The series is localised for TV channels in different markets, which has included ITV4 (UK)’; ’GT Academy Winners are invited to take part in Nissan’s Driver Development Programme. Headquartered at Silverstone Circuit, UK, the Driver Development Program consists of two-to-four months of training and racing at club and national level’.

Annex 5.1.3: Printout of the website https://en.wikipedia.org, dated 16/10/2018 with the following information: ‘The Vision Gran Turismo program (commonly abbreviated Vision GT or VGT) is a series of fictional concept cars for the Gran Turismo video game series’; ’The cars have been met with critical acclaim for their novel approach to aesthetics and performance. Real-life full-size models have been shown at motor shows in […] England […]’.

Annex 5.2: Sales and invoices

Annex 5.2.1: Sales figures in Europe in general. There is no specific mention of the United Kingdom non-registered trade mark or the word mark ‘GT’, but only to ‘Gran Turismo’.

Annex 5.2.2 and 5.2.6: Printout of the website https://forbes.com, dated 14/05/2018, informing that the opponent announced that their series Gran Turismo had surpassed 80 million sales globally since it was launched for the original PlaySation in 1997. There is no specific mention of the UK market.

Annex 5.2.3: Printout of the website https://www.polyphony.co.jp, dated 19/10/2018 with the same information as mentioned above.

Annex 5.2.4 and 5.2.5: Printout of the website https://www.gtplanet.net, showing a piece of news dated 15/12/2015, stating that over 75 million units of ‘GT6’ had been sold as of March 2015. There are also other references to sales figures of ‘GT Sport’, ‘GT5’ and ‘GT3’. In addition, the annexes show headings of other pieces of news dated in October 2018 and on with information about Fia GT Championship EMEA Regional, the GT Sport FIA Championship and GTPlanet’s Forza Horizon 4.

Annex 5.2.7: 6 sample invoices from 2010 to 2016 issued by the opponent to customers in the UK and which refer to sales of Gran Turismo in the United Kingdom, showing the sales figures of 45 units in 2010, 7,290 units in 2012, 2,340 units in 2013, 1,590 units in 2014, 240 units in 2015 and 195 units in 2016 without any data concerning the clients and their addresses and the sign ‘GT’ is not mentioned.

Annex 5.3: Peripherals and merchandise

Annex 5.3.1. GT products and product images

Printouts of the website https://www.game.co.uk, dated 10/11/2018, selling games for PlaySation 4 PS4 offering games called ‘Gran Turismo Sport Collector’s Edition’ or ‘GT Sport Collector’s Edition’ for GBP 69.99 and ‘Gran Turismo Sport Limited Edition for Play Station4 PSP4 1TB’ with the information: ‘Only at GAME – THE 1tb gt Sport Limited Edidion PlayStation 4 Console is only available to purchase at GAME stores or at www.game.uk in the UK’. The prices are showed in GBP.

Printout of the website www.amazon.fr with no mention of specific product sales in the United Kingdom.

Word document of unknown origin with reference to the websites where GT Products are sold from 2010 to 2017.

Printout of the website www.amazon.co.uk, dated 10/11/2018 concerning a ‘Playseat Gran Turismo’. There is no mention to the word mark ‘GT’.

Printout of the website www.amazon.co.uk, dated 10/11/2018 selling Sony PlayStation DualShock 4 Controller GT Sport Edition per GBP4.95

Printout of the website www.amazon.co.uk, dated 10/11/2018 about Thrustmaster T500 RS Force Wheel, simulator of the official Gran Turismo 5.

Printout of the website www.amazon.co.uk, dated 10/11/2018 selling Thrustmaster T-GT: PS4 and Gran Turismo Officially Licensed Leather-Wrapped Racing Wheel and Compatible with PC for GBP 634.94 showing some consumers comments in which they refer to GT wheel.

Annex 5.3.2 Logitech GT Driving Force

Technical sheet of a product called ‘Driving Force GT’, undated, stating that this product is the official wheel of Gran Turismo for Play Station 3 and showing the website www.logitech.com. The document is in English.

Sample of packaging of the product called ‘Driving Force GT’ showing the photograph of a wheel with controls and pedals.

Annex 5.3.3 Playseat GT Revolution

Photographs of the seat ‘Playseat’ of 2013. There is no mention to the word mark ‘GT’.

Annex 5.3.4 Merchandise goods

Photographs of T-shirts, clothing and footwear with the figurative sign in different colours, hereinafter referred to as the ‘logo’ or Gran Turismo. Labels with the logo and Gran Turismo. Technical sheets referring to the mark as GT showing the logo and Gran Turismo. All of them undated.

Annex 5.3.5 Licensing approval forms

10 Sony Computer entertainment Europe licensing approval forms, dated 2010, showing ‘GT-logo, label’ or ‘GT-Logo + feature Text’ as characters featured, referred to various goods, such as ‘Gran Turismo Apparell – Race Jacket Premium’, ‘Gran Turismo Apparell – Race Jacket Consumer’, ‘Gran Turismo Apparell - GT-Trackjacket –Softshell’, ‘GT_ACCESSOIRES_BELT’ or ‘GT_HANGTAG’ unsigned and without licensee data.

Annex 5.3.5 (bis) Licensing approval forms being edited by Casey

10 Sony Computer entertainment Europe licensing approval forms, dated 2010, showing ‘OTTO International’ in Hamburg (Germany) as licensee and ‘GT-logo, label’ or ‘GT-Logo + feature Text’ as characters featured, referred to various goods, such as ‘Gran Turismo Apparell – Race Jacket Premium’, ‘Gran Turismo Apparell – Race Jacket Consumer’, ‘Gran Turismo Apparell - GT-Trackjacket –Softshell’, ‘GT_ACCESSOIRES_BELT’ or ‘GT_HANGTAG’ unsigned.

1 Photograph of a belt showing the mark ‘GRAN TURISMO’ named in the reference as ‘GT-Belt’ and 1 photograph of a Hangtag showing the mark ‘logo+Gran Turismo’, named in the reference as ‘GT-HANGTAG’.

Other documents with references to GTI abd GT1.

Annex 5.3.6 Reviews and awards

- Printout of the website www.logitech.com, dated 2018, showing a list of awards given to Logitech products, none of them showing the mark ‘GT’.

- Printout of the website www.openwheeler.co.uk, dated 2018, showing a Technical sheet about a Logitech racing wheel called ‘Driving Force GT’, also named ‘DFGT’.

- Printout of the website www.amazon.com, dated 2018, showing consumers’ opinion about Playseat Limited Edition Gran Turismo.

- Printout of the website www.tomsguide.com, dated 2018, giving an opinion about racing wheels in the market and talking about the driving game ‘Gran Turismo’.

- Word document of unknown origin, undated, showing Internet addresses in relation with ‘Logitech PS3 Wheel’ and ‘Playseat GT Edition’.

- Printout of the website www.techporn.ph, dated 2018, showing information of the Logitech ‘Driving Force GT’ racing wheel as the official Gran Turismo 5 wheel. The document also refers to it as ‘DFGT’.

- Printout of the website http://psracingpro.com, dated 2018, giving information about the Playseat Evolution Gran Turismo Edition as a racing chair for PS4. It shows a seat with the mark ‘GRAN TURISMO’. The document also refers to it as GT branded bucket style seat.

Annex 5.4: Marketing material

Annex 5.4.1 Logos

Representations of logos such as:

, , , or

None of them appear as the word mark ‘GT’.

Annex 5.4.2 Inlays and pack art

Covers and back covers of PlayStation 3 game ‘Gran Turismo’ (several editions) without any mention of the word mark ‘GT’, in different languages, also in English. Document containing use instructions for the console PS3, which is undated, and which refers to options of the Top Menu such as ‘GT Mode’, or ‘GT-TV’ and other reviews to ‘GT LIFE’ and ‘GT AUTO’. The final page contains phone numbers of different European countries for training purposes, among which appears the United Kingdom. Power Point presentation about the PlayStation game ‘Gran Turismo’ (several editions) with no mention of the word mark ‘GT’.

Annex 5.4.3 In game screenshots

Some photographs of car races showing logos such as ‘GRAN TURISMO’ or the opponent’s figurative logo.

Annex 5.4.4 trailers

Some videos of Poliphony Digital in which there are cars in a race, one of them is dated 2013, showing the mark ‘GRAN TURISMO’ and the opponent’s logo.

A video of several winners of the European GT Academy in 2008, 2011 and 2012.

A video about the PlayStation game ‘GRAN TURISMO 6’ dated 2013 showing racing cars in the Silverston circuit with the message: ‘GET INVOLVED # BEST OF GT’.

The rest of the videos do not have any reference to the word mark ‘GT’.

Annex 5.4.5 launch events

5.4.5.1-2

Press releases of varying European media, among which there are some from the United Kingdom, namely ‘The Telegraph’, ‘EVO’, ‘This Wee’, ‘Guardian’, ‘Press Association’ and ‘Piston Heads’. These news pieces are dated 2010 and give information about the PlayStation game ‘Gran Turismo 5’ and that it was on sale in 2010 for GBP 39.99, GBP 59.99 and GBP 149.99, depending on the version. They also refer to it as the game GT, or GT5.

5.4.5.3

Photographs of invitation to the 15^th Anniversary of Gran Turismo, dated 2013, without any mention to the word mark ‘GT’.

5.4.5.4

Press releases from countries other than the UK.

4.5.5 Does not exist

5.4.5.6

Video and Power Point presentation called ’15 YEARS OF GT’ about launching of the Gran Turismo 6 game and the 15^th Aniversary of Gran Turismo in an Event of the GT Academy hold in the United Kingdom circuit of Silverston in 2013.

5.4.5.7

Photographs undated about the event mentioned above showing car drivers and driving cars with no mention of the word mark ‘GT’.

5.4.5.8

Excel sheet from the opponent with information about the announcement event coverage of Gran Turismo 6 in different countries among which is the United Kingdom. The document informs about varying media such as ‘EVO’ or ‘PistonHeads’ with 10 and 6 million users, respectively.

5.4.5.9/10

Power Point presentations of the opponent, one of them called ‘Celebrating 15 Years of GT, May 2013’ about the 15^th Anniversary of the Gran Turismo game and Gran Turismo 6 game.

Annex 5.4.6 press releases

5.4.6.1 Media Kit

Note book images and photographs of packaging of Gran Turismo Game in varying versions without any mention to the word mark ‘GT’.

5.4.6.2 Press releases

GT5 Press Releases

Word documents from the opponent referring to the Gran Turismo 5 game and the GT5 game with prices in Euros, dated in 2011 and 2012. Some of them are referring to ‘GT Auto’ or ‘GT My Home’ as being parts of the game.

Photographs of racing cars without any reference to the word mark ‘GT’.

GT 6 Gamescom Press Site

GT6. Car details/ Cars FrontRear/Online Lounge/Photo Stages/ Tracks/VGT. Photographs of racing cars without any mention to the word mark ‘GT’.

GT6_Pre-order

Photographs of racing cars and racing circuits without any reference to the word mark ‘GT’. An excel sheet with pre-order car names without any reference to the word mark ‘GT’.

GT Academy Press Releases

- 02/06/2014

Photographs of racing cars and racing drivers without reference to the word mark ‘GT’

- 14/04/2014

Advertising of GT Academy 2014. In the advertising there is a reference to the word mark ‘GT Academy’ and to the logo . Photographs of the participants in ‘GT Academy’ with the logo mentioned above inserted on their suits.

- 16/04/2014

Photographs of the participants in the GT Academy and racing cars with the logo mentioned above. Press release dated 16/06/2014 in London & Paris with information about GT Academy competition and the European GT Academy Race Camp to take place at Silverstone in July.

- 21/04/2014

Photographs of racing cars and racing drivers and internal documents about GT Academy.

- 22/05/2014

Internal document which is undated and contains information about GT Academy Challenge on Facebook. FAQs. Photographs (the same as before). Press release as an internal document dated 22/05/2014 about the GT Academy

- Dubai Final Report giving information about the Dubai debut for GT Academy graduates.

- First female regional finalist. Internal document undated with media information. Photographs of the woman mentioned in the document.

- GT Academy 07/01 with references to Dubai and no references to the UK.

- GT6 Announcement 16/09/2014. Photographs of racing cars. Media information about GT Academy 2014 (internal document).

- Word document containing a piece of Media information in English with the heading ‘GRAN TURISMO® DEMO TOPS ONE MILLION DOWNLOADS GLOBALLY IN TWO WEEKS. 118,214 GT Academy entries in the United Kingdom alone’ dated 18-07/2013 in London and Paris. Similar pieces of information in other languages are referring to territories other than the UK (internal documents).

- Word document with a piece of Media Information in English with the heading ‘GT ACADEMY 2013 EUROPEAN RACE CAMP SET TO FIND NEW CHAMPION’:

42 PlayStation® gamers from 16 countries gather at Silverstone for biggest-ever Race Camp. Only one will win the chance to become a real Nissan racing driver and compete in a GT3 Championship in 2014’ dated 03/09/2013.

- Dubai VNR mov. Video showing race drivers interviews in Dubai.

- 3 word documents:

Word document: Piece of Media Information showing the heading ‘NISSAN AND PLAYSTATION® ANNOUNCE BIGGEST EVER GT ACADEMY PROGRAMME. * Online competition phase to be run on exclusive Gran Turismo®6 demo. * Become the next ‘Nismo Athlete’ to race for Nissan’ dated 15/05/2013 in London&Paris.

Word document: Piece of Media Information showing the heading ‘Sony Computer Entertainment Europe Announces Gran Turismo®5: Academy Edition. GT Academy-themed GT5™ special edition includes updates and new content’ dated 25/07/2012 in London.

Word document: Piece of Media Information showing the heading ‘MIGUEL FAISCA CROWNED 2013 EUROPEAN GT ACADEMY CHAMPION. GT Academy Driver Development Programme and a full-season’s racing in a Nissan GT-R Nismo GT3 beckon for Portuguese Gran Turismo® gamer as he aims to become a real racing driver’ dated 11/09/2013

GT 6 Announcement 16/09/2014:

- Photographs of cars bearing different brands, with no mention of the ‘GT’ word mark.

- Word document: Piece of Media Information showing the heading ‘NEW NISSAN GT-R NISMO NOW AVAILABLE IN GRAN TURISMO®6. Special new GT-R is free to download for all GT Academy entrants’ dated 2014. Including the following information:

Additional notes:

About GT Academy 2014

GT Academy is a collaboration between PlayStation® and Nissan that uses the virtual world of the Gran Turismo®6 game to unearth real-world racing talent. Now in its sixth year, GT Academy includes separate competitions for Europe (France, Italy, UK, Spain, Portugal, Belgium, Netherlands, Luxembourg, Russia, Sweden, Poland and Czech Republic), Germany, North America (USA and Canada) and a new International group (Australia, India, Middle East, Mexico and Thailand).

The GT Academy qualification round will be part of a free Gran Turismo®6 update on PlayStation®3 (terms and conditions apply). The fastest gamers in each participating territory gain access to their region’s National Final event. A number of competitors can also gain access via a series of Live Gran Turismo® events organised locally, and via a Facebook game entry mechanism that leads to a special Gran Turismi®6 qualifying event. The National Finals add driving, fitness and a media element to the gaming.

From National Finals, the action moves to Silverstone for the legendary Race Camp, where the competitors are put through their paces on track in Nissan sports cars under the watchful eyes of high profile judges and mentors. One winner from each competition will be invited to take part in the intensive Driver Development Programme. They could qualify for an international race license and race for Nissan at the Dubai 24 Hours in January 2015, before potentially joining Nissan’s elite NISMO Athletes.

Previous winners of GT Academy are now regular racing drivers. In 2014, Jann Mardenborough (UK, winner in 2011) will be racing in GP3, a feeder series to Formula One, with the championship-winning Arden International team. Lucas Ordoñez (Spain, winner in 2008) will be racing in the Le Mans 24 Hours this year in the innovative Nisan ZEOD RC, alongside Wolfgang Reip (Belgium, winner in 2012). In 2013, Lucas won the Pro-Am Drivers Championship in the Blancpain Endurance Series. The 2013 Champions, Stanislav Aksenov (Russia), Miguel Faísca (Europe), Nick McMillen (USA) and Florian Strauss (Germany) are competing in the Blancpain Endurance Series with the Nissan GT Academy Team RJN.

News and views on GT Academy 2014 and the progress of all the GT Academy drivers can be followed on various platforms including: www.facebook.com/GTAcademy | www.twitter.com/GTAcademy | www.youtube.com/gtacademyeurope | www.flickr.com/photos/gtacademyeurope.

- Word document with technical information about the Gran Turismo 6 game, undated.

Vision GT Press Release

Word and PDF documents with media information, some of them with information about ‘GT6 video game (2015) and (2013) with no mention to the word mark ‘GT’.

Annex 5.4.7 GT Academy

GT Academy Coverage

BBC Interview and news piece dated 30/04/2012 about a race driver and race competition of GT Academy.

Word documents of unknown origin with what the opponent says are news pieces dated in 2014 with information about GT Academy in 2014 and 2015.

PDF presentation with information about GT Academy in 2014 across Europe, including the UK.

Use of logo at events

Photographs of cars with the Gran Turismo logo.

Annex 5.4.8 Vision GT

GT 6 Vision Cars

Photographs of cars, some of them with the logo, and with no mention of the word mark ‘GT’.

Annex 5.5: GT reviews and rankings

Annex 5.5.1 Review consolidations

Printout of the website www.metacritic.com dated 19/10/2017 showing assessments and awards of the PlayStation 4 game GRAN TURISMO SPORT. There is no mention of the word mark GT.

Printouts of the website www.gamerankings.com dated 12/10/2018 and 1910/2017 showing the rankings of the PlayStation 3 game GRAN TURISMO 6 in various magazine sites. There is no mention of the word mark GT.

Printouts of the website www.metacritic.com dated 12/10/2018 and 19/10/2017 showing assessments and awards of the PlayStation 3 game GRAN TURISMO 6. There are some mentions of ‘GT’ in several web sites such as ‘GT production’ in PSX Extreme dated 11/12/2013, ‘GT’ in Everyeye.it, ‘GT’ in Games Master UK dated 14/01/2014, ‘GT’ in PlayStation Official Magazine Australia dated 03/03/2014, ‘GT’ in EGM dated 06/12/2013.

Printout of the website https://en.wikipedia.org. dated 19/10/2017, showing the list of video games considered the best, among which is the PlayStation game ‘GRAN TURISMO’. There is no mention of the word mark ‘GT’.

Annex 5.5.2 GT 5 reviews

Word document reproducing an interview in the website www.carmagazine.co.uk, dated 21/10/2010 showing information about the launching of the PlayStation game GRAN TURISMO 5. The text also refers to the signs GT5 and GT.

Printout of the website https://venturebeat.com, dated 14/01/2014 giving information about the PlayStation game Gran Turismo with no mention to the word mark ‘GT’.

Annex 5.5.3 GT 6 reviews

Word documents reproducing releases in the website www.carmagazine.co.uk, dated 06/12/2013 and 16/05/2013 showing information about the PlayStation game GRAN TURISMO 6. The texts also refer to the signs GT, GT2, GT3, GT4, GT5 and GT6. The document dated 06/12/2013 states that the game is on sale in the UK for GBP 39.

Printout of the website http://www.vgchartz.com, showing the PlayStation game ‘GRAN TURISMO 6’ sales figures as of 02/09/2017 of 1.70m units in Europe with no indication of the amount corresponding to the United Kingdom. There is no mention of the word mark GT.

Printout of the website http://uk.ign.com, dated 19/10/2017, referring to the last edition of 16/12/2013 with information about the PlayStation game GRAN TURISMO 6, with no mention of the word mark ‘GT’.

Annex 5.5.4 GT Sport reviews

Printout of the website www.carmagazine.co.uk, dated 19/10/2017 showing information about the PlayStation game GRAN TURISMO SPORT. The texts also refer to the signs GT and GT Sport, GT3 and GT4.

Printout of the website http://metro.co.uk, dated 19/10/2017 showing information about the PlayStation game GRAN TURISMO SPORT. The texts also refer to the sign GT Sport.

Printout of the website www.eurogamer.net, dated 19/10/2017 referring to a posted published 17/10/2017 showing information about the PlayStation game GRAN TURISMO SPORT. The texts also refer to the signs GT, GT games, GT Sport, GT3 and GT4.

Printout of the website http://uk.ign.com, dated 19/10/2017, referring to the Gran Turismo Sport Review in Progress published 17/10/2017 with information about the PlayStation game GRAN TURISMO SPORT. The texts also refer to the signs GT, GT Sport, GT1 and GT3.

Printout of the website www.redbull.com, dated 19/10/2017, referring to a release dated 02/08/2017 with information about the PlayStation game GRAN TURISMO SPORT. The texts also refer to the sign GT Sport and GT4.

Printout of the website www.redbull.com, dated 19/10/2017, referring to a release dated 02/08/2017 with information about the PlayStation game GRAN TURISMO SPORT. The texts also refer to the sign GT Sport and GT4.

Printout of the website www.topgear.com, dated 19/10/2017, showing a release dated 18/10/2017 with information about the PlayStation game GRAN TURISMO SPORT. The texts also refer to the signs GT Sport, GT3, GT4 and GT6.

Printout of the website www.trustedreviews.com, dated 19/10/2017, showing information about sales of Gran Turismo Sport PlayStation game in the website amazon.co.uk for GBP46.00, 66.80 and 124.99. The texts also refer to the signs GT and GT Sport.

Printout of ‘EXPRESS Home of the Daily and Sunday Express’ dated 21/04/2017 showing information about the Gran Turismo Sport PlayStation game. The texts also refer to the signs GT and GT Sport.

Printout of ‘EXPRESS Home of the Daily and Sunday Express’ dated 21/04/12017 showing information about the Gran Turismo Sport PlayStation game. The texts also refer to the signs GT and GT Sport.

Printout of an email from Laurence@octane-junkies.co.uk, dated 25/10/2017, showing information about an event in Silverstone Circuit. The purpose of the event was to celebrate 20 years of Nissan’s involvement in the Gran Turismo gaming series and the launch of the PlayStation game ‘GT Sport’. The texts also refer to the sign GT3 and GT Sport and GT Academy.

Printout of the website www.carmagazine.co.uk, dated 09/11/2017 showing information about the PlayStation game GRAN TURISMO SPORT. The text also refers to the signs GT games, GT Sport, GT3 and GT4.

Printout of the website www.carmagazine.co.uk, dated 2017, showing information about the presentation in London of the PlayStation game GRAN TURISMO SPORT. The text also refers to the signs GT and GT Sport.

Printout of the website www.topgear.com, dated 20/05/2016, showing information about the PlayStation game GRAN TURISMO SPORT. The text also refers to the signs GT Academy, and GT Sport.

Annex 5.6: GT Academy

Annex 5.6.1 GT Academy season recap and winners

Word documents with printouts of the web site www.gran-turismo.com showing information and photographs about the winners of GT Academy editions from 2008 to 2016.

Word document containing screenshots of the web site www.channel4.com showing information and photographs about the winners of GT Academy editions from 2010 to 2016.

Annex 5.6.2 GT Academy photos

Photographs of race cars and race drivers of GT Academy.

Annex 5.6.3 GT Academy press releases

Photographs of race cars and race drivers of GT Academy.

Advertisement of GT Academy 2014.

Word document with a Piece of Media Information showing the heading ‘QUALIFYING CLOSES FOR THIS YEAR’S GAMER-TO-RACER GT ACADEMY COMPETITION

* Fastest gamers move on to National Finals to show their skill in real world NISMO cars

* European GT Academy Race Camp takes place at Silverstone at the end of July

* dated London & Paris 16/06/2014.

Word document, which is undated, with a piece of Media Information showing information of GT Academy on Facebook – FAQs. The document explains the following: ‘GT Academy is a competition created by Nissan and PlayStation® that unites the worlds of virtual and real-life racing to make the dreams of aspiring race drivers become a reality. The competition, which originally launched in Europe in 2008, finds the best Gran Turismo® players from across the participating countries by testing their skills in a gaming qualification process. They will then compete against each other in live National Finals before the winners from each final switch to driving real Nissan cars at the now-famous Silverstone ‘Race Camp’.

‘The overall winner of GT Academy is then trained in the multiple areas required to become a professional racing driver, if the winner makes the grade they will compete in the Dubai 24 Hour race for Nissan and have the chance to be considered for a future career with Nissan as a ‘NISMO Athlete’.

Word document, dated 22/05/2014, in London and Paris, with a Piece of Media Information showing the heading ‘FACEBOOK FANS GIVEN CHANCE TO RACE FOR REAL WITH NISMO PLAYSTATION® GT ACADEMY

* GT Academy Challenge on Facebook offers entry to gamer-to-racer competition

* Top scorers will win a place at GT®6 qualifying day’.

Videos showing race cars and race drivers of GT Academy.

Dubai Final Report

Word document which is undated containing a piece of Media Information showing information about the Dubai debut for GT Academy graduates in 2012.

First Female regional finalist

Word document undated with a piece of Media Information showing an interview with the first female in the GT Academy to reach a Regional Final.

Photographs undated showing a female console gamer.

GT Academy 07.01

Word document, dated 06/01/2015, with Media Information about PlayStation gamers race for real with Nissan in quickest category of the Dubai 24 hours and GT Academy.

GT6 Announcement 16.09.2014

Photographs of Gran Turismo race cars and classifications

Word document which refers to 2014 with Media Information about new Nissan GT-R Nismo is available in PlayStation game Gran Turismo 6. There is also some mention of the game GT3.

Word document showing information about updates made on the Gran Turismo 6 game.

Mid-Point Update

Word documents in different languages, including English, dated 18/07/2013 which mention London and Paris and state that Gran Turismo demo tops one million downloads globally in two weeks and 118,214 GT Academy entries in the United Kingdom alone.

Race Camp 2013 Begins

Word document dated 03/09/2013 containing information about the setting of GT Academy 2013 European race camp to find a new champion at Silverstone circuit.

Word document dated 15/05/2013 with information about the return of the GT Academy 2013 for a fifth season.

Word document dated 25/07/2012 containing information about the special edition of Gran Turismo 5 Academy Edition. The text also refers to the GT academy.

Word document dated 11/09/2013 with information about the winner of the GT Academy 2013 European race camp final at Silverstone circuit.

Annex 5.6.4 GT Academy Coverage

Printout of the website www.dailytech.com, dated 04/12/2009, showing information about a champion Gran Turismo gamer that becomes a real-world racing champion through GT Academy.

Printout of the website www.granturismo.com showing information dated 30/11/2011 in London about the fact that Nissan Europe and Sony Computer Entertainment Europe’s GT Academy competition has won ‘Best Media and Entertainment Campaign’ and ‘Best Transport Campaign’ at the UK’s Campaign’ magazine Media Awards. The text also refers to the sign GT4.

Extract from a United Kingdom magazine F1 RACING, dated December 2013, showing an advertising of a race car from the Gran Turismo 6 game. The text also refers to the sign GT6.

Magazine in German

Extract from the PlayStation Official Magazine - UK DATED 2017 December showing information about a Gran Turismo gamer entering GT Academy and his experience.

Two undated word documents giving information about GT Academy, signed by Alex Ingram, freelance journalist.

Extract from the United Kingdom magazine AUTOCAR, dated 02/07/2014 showing a news piece about the cars in the Gran Turismo 6 game.

Extract from AUTOSPORT magazine, dated 12/06/2014 showing a news piece about the Gran Turismo 6 game.

Extract from GHM magazine, dated June 2014, showing a news piece about the Gran Turismo PlayStation game.

Extract from German magazines.

Extract from the United Kingdom magazine AUTOCAR, dated 13/08/2014 showing a piece of news about the GT Academy.

Extract from T3 magazine, dated 2014 January, showing a piece of news about the PlayStation game Gran Turismo 6.

Extract from the United Kingdom magazine BBC Top Gear, dated 2015 November, showing a new car designed for the PlayStation game Gran Turismo.

Extract from some magazines in German.

Extract from the United Kingdom magazine TV TIMES, dated 1-7/10/2016, showing a broadcast of the GT Academy program in Channel 5.

Extract from the United Kingdom magazine TV TIMES, dated 15-21/10/2016, showing a broadcast of the GT Academy program in Channel 4.

Extract from magazines from Austria and Germany.

Extract from the United Kingdom magazine GAMES, undated, showing information about the history of the PlayStation game Gran Turismo from 1994 to 2013. The text also refers to the sign GT, GT3, GT4, GT5, GT6 and GT7.

Extract from magazines from Germany.

Extract from United Kingdom magazine F1 RACING, dated 2018 February, showing a piece of news with references to the Nissan GT Academy.

Extract from United Kingdom magazine MEN’S HEALTH, dated 2018 July, showing a piece of news with references to GT Academy.

Annes 5.6.5 GT Academy media value

PDF presentation about GT Academy in the world.

PDF presentation about GT Academy in Europe, referring also to the United Kingdom showing press articles from 11 UK magazines.

PPT presentation about a GT Academy valuation in Europe, comprising also the United Kingdom which shows audiences of between 60,000 and 80,000 for Episodes 1 to 5 of the GT Academy.

Printout of the website www.nissaninsider.co.uk, dated 18/10/2018 showing information about the online phase of the GT Academy virtual to reality competition closed with more than 756,000 entries form the 18 participating European countries. The document explains that the United Kingdom had the highest number of entries which totalled 148,984.

Annex 5.7: Vision GT

Printout of the website www.evo.co.uk showing a piece of news, dated 11/11/2017, about the Vision GT cars and every vision Gran Turismo virtual concept detailed.

Printout of the website www.carmagazine.co.uk showing a piece of news, dated 14/04/2017, about Fittipaldi FEZ Vision Gran Turismo.

Printout of the website www.carmagazine.co.uk showing a piece of news, dated 20/09/2017, about McLaren ultimate Vision Gran Turismo concept for Gran Turismo Sport.

Word document with the Vision GT history. The document explains that the Vision Gran Turismo programme (commonly abbreviated as Vision GT) is a series of fictional concept cars for the Gran Turismo or GT video game series, developed by a cross-section of the world's top automobile manufacturers.[1] These vehicles appeared originally in the video games Gran Turismo 6, and later in Gran Turismo Sport, both from Polyphony Digital.

Annex 5.8: GT Sport app

Printout of the website www.play.google.com, dated 15/10/2018 showing the app Gran Turismo Sport Companion.

Printout of the website www.itunes.apple.com, dated 15/10/2018 showing the app Gran Turismo Sport Companion.

Printout of the website www.gran-turismo.com/gb/news, dated 15/10/2018 introducing the Gran Turismo Sport Companion App.

Printout of the website www.drivemag.com, dated 15/10/2018 introducing the Gran Turismo Sport Companion App.

Annex 6 Statement given by UKIE

Statement given by the IP Coordinator of UK Interactive Entertainment (UKIE), attesting that it is the only trade body for the UK’s games and interactive entertainment industry. It is affirmed that the Gran Turismo or GT series of games have been long standing and is one of the highest selling video game franchises under the SIEE PlayStation brand. It is also stated that the GT franchise has a licensing program of peripherals and accessories, a GT Academy which allows the winner of a gaming tournament to train as a real-life racing driver and there are car manufacturers involved in the production of virtual concept cars for GT games and real-life models of virtual cars. Moreover, it is considered that the abbreviation GT is widely used as an abbreviation for the full name, and that consumers of the game and related products would recognise GT as referring to the SIEE series.

Annex 7 Statement given by ISFE

Statement given by the Senior Legal Counsel of Interactive Software Federation of Europe (ISFE) stating that although they do not have data relating specifically to SIEE’s long standing Gran Turismo or GT series of games, they are aware that it is one of the highest selling video game franchises under the SIEE PlayStation brand. It is also stated that GT franchise has a licensing program of peripherals and accessories, a GT Academy which allows the winner of a gaming tournament to train as a real-life racing driver and that there are car manufacturers involved in the production of virtual concept cars for GT games and real-life models of virtual cars. Moreover, it is considered that the abbreviation GT is widely used as an abbreviation for the full name, and that consumers of the game and related products would recognise GT as referring to the SIEE series.

Annex 8 Statement given by Thrustmaster

Statement given by the President and Managing Director of Guillemot Corporation S.A., the opponent’s licensee, attesting that they have been developing, distributing and selling ‘GT’ branded video game accessories for the SIEE PlayStation console under licence from the Sony Group since 2010 in the United Kingdom, among other countries. It is stated also that they have been using the GT logo in their licensed products, as well as, the letters ‘GT’ as ‘T-GT’, ‘T300RS GT Edition’ or ‘GT Wheel’. Moreover, they affirm that they believe that both their costumers and end-users are familiar with the letters ‘GT’ as an abbreviation for Sony Group’s ‘Gran Turismo’ video games when used in the form of the GT logo. There are provided some photographs of packaging showing these letters.

Annex 9 Extract from the textbook Kerly’s Law of Trade Marks and Trade Names, ed. 16 of 2018

Extract from a legal text book concerning the national provisions of law applicable in relation to the non-registered trade mark in the UK.

Annex 10 Statement given by Nissan Motor Sports of Nissan Designs Europe

Witness statement given by the marketing communications manager of Nissan Motor Sports of Nissan Designs Europe attesting that the Nissan PlayStation GT Academy is commonly known as GT Academy because it is how SIEE video game Gran Turismo is known in the relevant markets which are live sporting events, televised sporting events, and computer and video gaming and explaining how the GT Academy functions.

Assessment of evidence

While the evidence suggests that some use of the sign has been made, it does not satisfy the conditions of use in the course of trade of more than local significance set out in Article 8(4) EUTMR as regards the claimed sign ‘GT’ (word mark) being used in relation to the claimed goods and services.

Most of the evidence refers to the mark ‘GRAN TURISMO’ or to the figurative mark , or to a mark combining both elements. There is very little evidence which refers to the word mark ‘GT’ on its own. Some of the evidence shows this element in combination with other elements, like for example, ‘GT6’, however it does not appear on the goods themselves, but merely as how they refer to the goods which are in fact branded with a different sign, namely, the figurative logo , ‘GRAN TURISMO’ or a combination of both. Moreover, the witness statements submitted in Annexes 6-8 and 10 are provided by professionals, associations and people who are attesting as to how they believe that the relevant consumer views the opponent’s sign. However, this cannot be given any more importance than an opinion as there is no secondary evidence to show that the consumers actually recognise the opponent’s logo as representing the letters ‘GT’. The opponent could have submitted opinion polls, surveys or any other type of pertinent evidence to prove that the relevant consumers recognise the earlier figurative sign as representing the letters ‘GT’, or that the sign ‘GT’ (word mark) is actually used on goods or in relation to retail services offered on the market.

Furthermore, some of the aforementioned pieces of evidence are merely word documents which originate from the opponent itself, such as all of the word documents with pieces of media information. Other pieces of evidence refer to the mark ‘GT’ in combination with other elements, such as a number, or other letters, or just as an abbreviation to refer to the mark ‘Gran Turismo’ in relation to different editions.

In any event, the documents do not provide the Opposition Division with sufficient information concerning the commercial volume, the duration, and the frequency of use of this sign. The evidence clearly shows that the opponent has used the signs , ‘GRAN TURISMO’ or a combination of both extensively, but the same cannot be said in regards to the verbal sign ‘GT’ which appears in very few documents to refer to the aforementioned figurative sign but not as a trade mark in use itself.

Although there is some evidence of the use of the word mark ‘GT’ in relation to computer game software, video game software and their necessary peripherals, the only information provided is the price, the date of sale, a technical sheet or a packaging, but not the volume or the frequency of use since most of the evidence that refers to these factors are in relation to the mark or ‘Gran Turismo’ and not to the word mark ‘GT’ in itself.

As regards the retail services in relation to computer game software, video game software, etc., the fact that the opponent sells its products through the Internet, does not mean that its main activity is retailing since retail is a service that consists in the bringing together, and offering for sale, of a wide variety of different products, thus allowing consumers to conveniently satisfy different shopping needs at one stop. Retail services would involve selling third party brands also, and not just the opponent’s own goods and the evidence presented does not show that it is involved in the sale of any third party goods. Therefore, the evidence does not provide information as regards the provision of these services by the opponent under the word mark ‘GT’.

Finally, as for the services of entertainment; organisation of competitions and events; organisation of racing competitions; online games services; online game tournaments; driving academy services, the evidence shows that the opponent organises competitions and develops an academy called ‘GT’. However, in the Opposition Division’s opinion this cannot be considered use in the sense of Article 8(4) EUTMR, since these services are not offered to third parties but to promote its own products, that is, they are carried out only in relation to the PlayStation video game Gran Turismo. In order to show that the opponent is providing these services under the sign it would have to show that it is offering to organise entertainment, competitions and events to third party companies and that it is not just organising these events to promote its own activities. Therefore, the opponent has not proven that it is using the verbal sign ‘GT’ in relation to these services.

Considering all the above, the Opposition Division concludes that the evidence submitted by the opponent is insufficient to prove that the earlier sign was used in the course of trade of more than local significance in connection with any of the goods and services on which the opposition was based before the relevant date and in the relevant territory.

As one of the necessary requirements of Article 8(4) EUTMR is not met, the opposition must be rejected as unfounded in so far as it is based on this ground.

As the opposition has failed in regard to all the grounds on which it is based, it must be rejected in its entirety.

COSTS

According to Article 109(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 Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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

Nicole CLARKE

Victoria DAFAUCE MENENDEZ

Karin KLÜPFEL

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 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 for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.