OPPOSITION No B 2 650 896

Orpheus Music SL, c/ Gran Vía 6, 4º, 28013, Madrid, Spain (opponent), represented by Maria Alicia Izquierdo Blanco, General Salazar, 10, 48012, Bilbao, Spain (professional representative)

a g a i n s t

SZ DJI Technology Co. Ltd., 6f Hkust Sz Ier Bldg., No.9 Yuexing 1st Rd., Hi-Tech Park (South), Nanshan District, 518057 Shenzhen, Guangdong Province, People’s Republic of China (applicant), represented by Boehmert & Boehmert Anwaltspartnerschaft Mbb - Patentanwälte Rechtsanwälte, Kurfürstendamm 185, 10707 Berlin, Germany (professional representative).

On 18/01/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 650 896 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 of European Union trade mark application No 14 768 816 ‘DEMORPHEUS’. The opposition is based on, inter alia, European Union trade mark registration No 13 953 815 . 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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 13 953 815.

a) The goods and services

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

Class 9: Navigation, guidance, tracking, targeting and map making devices; Scientific research and laboratory apparatus, educational apparatus and simulators; Optical devices, enhancers and correctors; Apparatus, instruments and cables for electricity; Safety, security, protection and signalling devices; Devices for treatment using electricity; Information technology and audiovisual equipment; Diving equipment; Recorded content; Magnets, magnetizers and demagnetizers; Measuring, detecting and monitoring instruments, indicators and controllers; Databases (electronic); Media content; Software; Recorded data files; Pre-recorded cassettes; Recorded tapes; Replicating apparatus; Signal cables for IT, AV and telecommunication; Data storage devices; Audio/visual and photographic devices; Communications equipment; Data processing equipment and accessories (electrical and mechanical); Electronic agendas; Electronic personal organisers; Amplifiers; Aerial amplifiers; Control amplifiers; Distribution amplifiers; Power amplifiers; Signal amplifiers; Digital amplifiers; Electroacoustic amplifiers; Electronic amplifiers; Electrical amplifiers; Keyboard amplifiers; Optical semiconductor amplifiers; Recording apparatus; Telematic terminal apparatus; Decoding apparatus; Demagnetizing apparatus for magnetic tapes; Digital signal processing apparatus; Data collection apparatus; Speech recognition apparatus; Telematic apparatus; Ultrahigh frequency translator apparatus; Attenuators; Racks for amplifiers; Ships logs [electronic]; Automatic disc changers; Selfsynchronizing digital encryptors; Magnetic encoders; Optical encoders; Dual amplifier balancers; Multiport controllers; Analogue convertors; Analogue to digital converters; Ships logs [electric]; Demultiplexers; Decoders; Signal decoders; Electronic decoders; Electronic dictionaries; Electronic digitisers; Encryption apparatus; Multifunctional devices which incorporate copier and facsimile functions in the standalone mode; Digital input and output scanners; Radio-frequency identification (RFID) tags; Cases for electronic diaries; Time data generators; Label readers [decoders]; Radio-frequency identification (RFID) readers; Electronic book readers; Magnetooptical pens; Multiplexers; Video multiplexers; Multimedia multiplexers; Time division multiplexers; Masers [microwave amplifiers]; Thin Film Transistor-Liquid Crystal Display (TFT-LCD) panels; Preamplifiers; Pulse code modulating processors; Digital voice signal processors; Speech processors; Time programmers; Optical receivers; Multiport repeaters; Frequency synthesizers; Speech synthesizers; Amplifier tuners; Digitisers; Keyboards; Multifunction keyboards; Receiving terminals for signals; Optical transmitters; Transmultiplexers; Electronic encryption units; Telephone ring tones [downloadable]; Data recorded electronically; Recorded data [magnetic]; Directories [electric or electronic]; Optical disc recordings; Pre-programmed discs; Magnetic recordings; Computer digital maps; Sensitized microfilms, exposed; Microfilm [exposed]; Timetables (Electronic -

); Exposed slide films; X-ray films, exposed; Exposed x-ray films, other than for medical use; Reprographic films (sensitised -) [exposed]; X-ray plates [exposed] other than for medical use; Reprographic plates (sensitised -) [exposed]; X-ray photographs, other than for medical purposes; Data carriers containing stored typographic typefaces; Downloadable ring tones for mobile phones; Audiovisual apparatus; Audio visual recordings; Audio amplifiers; Audio recordings; Sound reproduction apparatus; Audio transmitter units; Audio apparatus; Audio digitisers; Audio discs; Audio compact discs; Audio receivers; Audio cassettes; Audio tapes; Video processors; Camcorders; Musical sound recordings; Video recordings; Records [sound recordings]; Musical video recordings; CD rom drives; Compact discs [read-only memory]; Optical discs; CD storage wallets; Headsets; Stereo headphones; Headphone amplifiers; Music headphones; Microphones; Microphones for communication devices; Stereo amplifying apparatus; Loudspeakers; Loudspeaker systems; Speakers [audio equipment]; Electronic publications, downloadable; Musical recordings in the form of discs; Downloadable musical sound recordings; Series of musical sound recordings; Digital music downloadable provided from the internet; Music tapes; Musiccomposition software; Downloadable image files; Compact discs featuring music; Pre-recorded DVDs featuring music; Car stereos; Computer software for creating and editing music and sounds; Electrical amplifiers for use with musical instruments; Machine readable computer programs for use in the reproduction of music; Computer software for processing digital music files; Digital music downloadable provided from MP3 internet web sites; Laser discs for use in storing music; Integrated circuit memory cards for use in playing electronic musical instruments; Digital music downloadable provided from a computer database or the internet; Sound recording apparatus; Telephone apparatus; Cell phones; Computers; Notebook computers; Digital televisions; Television monitors; Television apparatus; Internet servers; Internet phones.

Class 16: Adhesives for stationery or household purposes; Bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; Filtering materials of paper; Printed matter; Decoration and art materials and media; Paper and cardboard; Works of art and figurines of paper and cardboard, and architects' models; Stationery and educational supplies; Disposable paper products; Books; Music books; Educational publications; Printed publications; Periodicals; Printed advertisements; Promotional publications; Magazines [periodicals]; Music magazines; Sheet music in printed form; Newspapers; Printed periodicals; Paper; Printed periodicals in the field of dance; Music note books; Events programmes.

Class 35: Commercial trading and consumer information services; Business assistance, management and administrative services; Business analysis, research and information services; Advertising, marketing and promotional services; Online advertisements; Advertising; Radio advertising; Advertising and marketing; Television advertising; Advertising agencies; Magazine advertising; Business management; Operation of businesses [for others]; Business management of performing artists; Business management organisation; Business administration; Management administration of commercial undertakings; Clerical services; Preparation of publicity publications; Newspaper subscriptions; Subscriptions to electronic journals; Arranging of subscriptions for the publications of others; Subscriptions (arranging of) to books, reviews, newspapers or comic books; Retail services in relation to musical instruments; Brand creation services; Brand creation services (advertising and promotion); Research services relating to advertising; Promotion [advertising] of concerts; Trade promotional services; Marketing; Financial marketing; Marketing by telephone; Direct marketing; Business consultancy services relating to marketing; Conducting of marketing studies; Market campaigns; Business marketing services; Arranging of displays for commercial purposes; Arranging of exhibitions for business purposes; Arranging of exhibitions for advertising purposes; Arranging and conducting marketing promotional events for others; Advertising, including promotion of products and services of third parties through sponsoring arrangements and licence agreements relating to international sports' events.

Class 41: Education, entertainment and sports; Publishing and reporting; Translation and interpretation; Rental of audiovisual recordings; Production of audio/visual presentations; Audio production; Videotaping; Recording studio services; Recording services; Recording of music; Production of musical recordings; Rental of cd-roms; On-line publication of electronic books and journals; On-line publication of electronic books and journals (nondownloadable); Providing electronic publications; Production of musical works in a recording studio; Music publishing and music recording services; Rental of phonographic and music recordings; Providing digital music from the internet; Musical entertainment; Musical education services; Production of music; Orchestra services; Music publishing services; Arranging and conducting of concerts; Entertainment services performed by a musical group; Musical concerts by television; Composition of music for others; Music composition services; Arranging of music performances; Music transcription for others; Music library services; Musical entertainment services; Publishing of musical works; Musical concerts by radio; Directing of musical shows; Theatrical performances, music performances; Musical events (Arranging of -); Production of musical videos; Rental of musical instruments; Live musical concerts; Presentation of musical concerts; Publication of sheet music; Performing of music and singing; Organisation of musical competitions; Live music performances; Publication of music books; Animated musical entertainment services; Artistic management of musical shows; Music festival services; Pop music concerts (Organisation of -); Live band performances; Jazz music entertainment services; Production of sound and music recordings; Consultancy on film and music production; Providing on-line music, not downloadable; Music recording studio services; Planning of plays or musical shows; Musical floor shows provided at performance venues; Rental of audio tapes bearing recorded music; Performance of dance, music and drama; Commissioned writing [plays, musicals, for publications etc]; Entertainment services provided by a musical vocal group; Rendering of musical entertainment by instrumental groups; Services providing entertainment in the form of live musical performances; Post-production editing services in the field of music, videos and film; Entertainment in the form of recorded music (Services providing -); Providing digital music from mp3 internet web sites; Rendering of musical entertainment by vocal groups; Education services in the form of music television programmes; Selection and compilation of pre-recorded music for broadcasting by others; Producing and conducting exercises for music classes and programmes; Providing digital music [not downloadable] from MP3 internet web sites; Providing facilities for movies, shows, plays, music or educational training; Provision of on-line entertainment; Providing on-line publications; Publication of newspapers; Publication

of printed matter relating to education; Publication of musical texts; Training in the field of advertising; Organising of education exhibitions; Arranging of displays for cultural purposes; Party planning [entertainment]; Education; Training; Entertainment; Amusement centers; Cultural activities; Sporting and cultural activities; Entertainment, sporting and cultural activities; Production of music shows; Organizing cultural and arts events.

The contested goods are the following:

Class 9: Data processing apparatus; Computer memory devices; Central processing units [processors]; Computers; Printed circuits; Computer software; Audio- and video-receivers; Sound recording apparatus; Cameras [photography]; Stands for photographic apparatus; Cases especially made for photographic apparatus and instruments; Batteries, electric; Memory cards for cameras; Downloadable music files; Downloadable image files; Downloadable video files; Computer peripheral devices; Altimeters; Antennas and aerials as components; Automatic pilots; Azimuth instruments; Flight controlling apparatus; Flight simulators for aircraft; Inertial navigational instruments; Integrated circuits; Measuring apparatus; Navigational instruments; Printed circuits; Radar apparatus; Remote control apparatus; Sensors and detectors; Sonars; Speed checking apparatus for vehicles.

Class 12: Air vehicles; unmanned aerial vehicles [UAVs]; structural parts for airplanes; structural parts for helicopters; aircraft fuselages; Vehicle chassis; Remote control vehicles, other than toys; propeller blade protectors for aircraft; propellers for air vehicles; Parachutes; Railway cars; rotor blades for helicopters; Screw-propellers; structural parts for automobiles; Structural parts for boats; structural parts for gliders; structural parts for unmanned aerial vehicles [UAVs]; tilt rotor aircraft; Tires, solid, for vehicle wheels; Vehicle wheels; Vehicles for locomotion by land, air, water or rail; Vessels [boats and ships].

Class 28: Apparatus for games; video game machines; controllers for game consoles; controllers for toys; toy models; model aircraft; model cars; toy model vehicles; portable games with liquid crystal displays; remote control toys; radio-controlled toy vehicles; remote controlled scale model vehicles; scale model airplanes; scale model kits [toys]; toy model kits; toy robots; toy robots (parts and components of -); toy tools; toy vehicle tracks.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 9

Data processing apparatus; computers; downloadable music files; downloadable image files; sound recording apparatus are identically contained in both lists of goods (including synonyms).

The contested downloadable video files are included in the opponent’s broader category of video recordings and are identical therefore.

The contested cameras [photography] are included in the broader category of the opponent’s photographic devices and are considered identical.

The contested computer memory devices; central processing units [processors]; Printed circuits (listed twice); computer peripheral devices; Integrated circuits are included in the respective broad categories of the opponent’s data processing equipment and accessories (electrical and mechanical). Therefore, they are identical.

The contested computer software is identical to the opponent’s software, because the opponent’s goods include, as a broader category, the contested goods.

The contested audio- and video-receivers are identical to the opponent’s audio/visual devices, because the opponent’s goods include, as a broader category, the contested goods.

The contested inertial navigational instruments; navigational instruments; automatic pilots are included in the broad category of, or overlap with, the opponent’s respective navigation, guidance devices. Therefore, they are identical.

The contested altimeters; azimuth instruments; flight controlling apparatus; measuring apparatus; radar apparatus; sensors and detectors; sonars; speed checking apparatus for vehicles are included in the broad category of, or overlap with, the opponent’s measuring, detecting and monitoring instruments, indicators and controllers. Therefore, they are identical.

The contested flight simulators for aircraft are included in the broad category of the opponent’s educational apparatus and simulators. Therefore, they are identical.

The contested remote control apparatus are identical to the opponent’s measuring, detecting and monitoring instruments, indicators and controllers as a broader category.

Memory cards for cameras are included in and therefore identical to the opponent’s broader category of data storage devices.

The contested antennas and aerials as components are included in the opponent’s broad category of apparatus, instruments and cables for electricity, and are identical therefore.

The contested batteries, electric are included in the opponent’s broad category of apparatus, instruments for electricity and are identical therefore.

Stands for photographic apparatus; cases especially made for photographic apparatus and instruments are similar to the opponent’s photographic devices. The goods can have the same manufacturers, distribution channels and users. The goods are also complementary.

Contested goods in Class 12

The contested air vehicles; unmanned aerial vehicles [UAVs]; remote control vehicles, other than toys; vehicles for locomotion by land, air, water or rail; vessels [boats and ships] are similar to apparatus, instruments and cables for electricity as they usually coincide in relevant public and distribution channels. Similarity is found because of electric batteries for vehicles, included in the group title ‘Apparatus, instruments and cables for electricity’ in Class 9 and vehicles, included under the group title ‘Vehicles and conveyances' in Class 12. Furthermore they are complementary.

The contested structural parts for airplanes; structural parts for helicopters; aircraft fuselages; vehicle chassis; propeller blade protectors for aircraft; propellers for air vehicles; parachutes; railway cars; rotor blades for helicopters; screw-propellers; structural parts for automobiles; structural parts for boats; structural parts for gliders; structural parts for unmanned aerial vehicles [UAVs]; tilt rotor aircraft; tires, solid, for vehicle wheels; vehicle wheels; have different nature, purpose, methods of use compared to all the goods and services of the opponent. The opponent’s services are electric and electronic devices, stationery objects, business services and educational, entertainment and sports related services. The contested goods further differ in their distribution channels and users. The contested goods are dissimilar to all the opponent’s goods and services.

Contested goods in Class 28

The contested apparatus for games; video game machines; portable games with liquid crystal displays are similar to Data processing equipment as they usually coincide in producer, relevant public and distribution channels.

The contested toy models; model aircraft; model cars; toy model vehicles; controllers for game consoles; controllers for toys; remote control toys; radio-controlled toy vehicles; remote controlled scale model vehicles; scale model airplanes; scale model kits [toys]; toy model kits; toy robots; toy robots (parts and components of -); toy tools; toy vehicle tracks are similar to a low degree to the opponent’s Recorded content as they have the same purpose. They usually coincide in producer, relevant public and distribution channels.

b) 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 or similar are directed at the public at large and at customers with specific professional knowledge or expertise (the latter in case of class 9 and 12 goods).

The degree of attention varies from average (class 28) to higher than average (classes 9, 12) depending on the specific highly technical nature of the goods at hand.

c) The signs

	DEMORPHEUS
Earlier trade mark	Contested sign

The relevant territory is the European Union.

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

The earlier mark is a figurative mark. It contains a stylised image of a lyre, a musical string instrument. Underneath it is a word ‘orpheus’ in lower case letters. Orpheus is ancient Greek legendary hero endowed with superhuman musical skills (extracted on 09/01/2019 from Encyclopaedia Britannica, www.britannica.com). Both these elements are perceived with the meanings given in all the territories of the Union, even if the depiction of the word element differs slightly depending on the rules of the language used. Despite of their meanings, both elements are considered distinctive as no direct descriptive link could be established with any of the goods of the earlier mark. The figurative element depicting a lyre is the dominant element as it is the most eye-catching due to its size.

The contested word mark ‘DEMORPHEUS’ does not have any meaning as a whole and has no identifiable component and is therefore distinctive in relation to the goods in question, contrary to the arguments of the opponent.

Visually, the signs coincide in letters ORPHEUS. However, they differ in the letters DEM in the beginning of the contested sign. The marks further differ in the dominant figurative element, and typeface used in the earlier mark. The 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.

Therefore, the signs are similar to a low degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ORPHEUS, present identically in both signs. The pronunciation differs in the sound of the letters DEM in the beginning of the contested mark, which have no counterparts in the earlier sign. The marks have aurally different length and rhythm.

Therefore, the signs are similar to an average degree.

Conceptually, although the public in the relevant territory will perceive the meanings in the earlier mark as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

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

d) 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.

e) Global assessment, other arguments and conclusion

The similarities and dissimilarities between the signs have been established above. Some of the goods have been found to be partially identical or similar. The distinctive character of the earlier mark, as well as that of the elements composing the marks in conflict has also been established.

The marks as a whole are only remotely similar as a result of the coincidence in the letters ORPHEUS. However, they clearly differ in their beginnings, where the consumer focuses its attention, and in their lengths. The marks have aurally different length and rhythm. The earlier mark contains a dominant and memorable figurative element. The fact that the verbal element of the earlier mark is incorporated at the end of the contested mark in a secondary position is noted, but has little importance within the overall impression given by the signs due to the clear differences explained above, contrary to the arguments of the opponent. The letter sequence DEM in the beginning of the contested sign is meaningless, and therefore, it is not feasible to assume that the mark would be perceived with a meaning as a whole nor that any element would be clearly dissected and singled out from the verbal element of the contested mark. Therefore, the similarities are not sufficient to lead to a likelihood of confusion on the part of the public.

The differences between the marks are sufficiently strong to allow the relevant public to distinguish between them, even taking into account the principle of imperfect recollection. Therefore, consumers are unlikely to assume that the goods labelled with the earlier mark and goods of the contested sign come from the same or economically-linked undertakings. The clearly perceptible differences between the signs would not be overlooked by the relevant customer, even if they were used for identical goods, contrary to the arguments of the opponent.

The opponent refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

While the Office does have a duty to exercise its powers in accordance with the general principles of European Union law, such as the principle of equal treatment and the principle of sound administration, the way in which these principles are applied must be consistent with respect to legality. It must also be emphasised that each case must be examined on its own individual merits. The outcome of any particular case will depend on specific criteria applicable to the facts of that particular case, including, for example, the parties’ assertions, arguments and submissions. Finally, a party in proceedings before the Office may not rely on, or use to its own advantage, a possible unlawful act committed for the benefit of some third party in order to secure an identical decision.

In view of the above, it follows that, even if the previous decisions submitted to the Opposition Division are to some extent factually similar to the present case, the outcome may not be the same as is the case here.

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

The opponent has also based its opposition on the following earlier trade marks:

European Union trade mark registration No 14 464 952 for goods in class 9;

Spanish trade mark registration No 3 574 894 for goods in class 9, 41;

Spanish trade mark registration No 3 574 407 for goods in class 9.

Since these marks are identical to the one that has been compared, the outcome of the opposition cannot be different on the basis of the other earlier marks invoked by the opponent. Therefore, no likelihood of confusion exists with respect to those earlier marks.

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

Solveiga BIEZA

Erkki MÜNTER

Ferenc GAZDA

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.