OPPOSITION No B 2 686 775

CKL Holdings N.V., Leeuwenstraat 4, B-2000 Antwerp, Belgium (opponent), represented by Marco Notarnicola, CKL Holdings N.V., Leeuwenstraat 4, B-2000 Antwerp, Belgium (employee representative)

a g a i n s t

Dennis Meijer, Korte Klarenstraat 4, B-2000 Antwerpen, Belgium (applicant).

On 07/03/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 686 775 is rejected in its entirety.

2. The opponent bears the costs.

REASONS:

The opponent filed an opposition against some of the goods of European Union trade mark application No 14 978 704 ‘BoschBlue’, namely against all the goods in Class 9. The opposition is based on Benelux trade mark application No 1 319 687 ‘Blue’. The opponent invoked Article 8(1)(b) EUTMR.

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

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.

1. The goods

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

Class 9: Computer hardware; computer software; computer peripherals; electronic data processing equipment; computer networking and data communications equipment; computer components and parts.

The contested goods are the following:

Class 9: Measuring instruments; Pressure controllers [gauges]; Measuring devices, electric; Dosage dispensers; Automatic dosage apparatus; pH meters; Digital pH meters; Rulers [measuring instruments]; Digital indicators; Electronic meters; Gauges with digital readout; Pool alarms.

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.

In today’s high-tech society, almost all types of electronic or digital apparatus function using integrated software. This does not, however, automatically lead to the conclusion that software is similar to goods that use software to function successfully.

Therefore, although some of the contested goods in Class 9 function using integrated software, this does not lead to the conclusion that they are similar to the opponent’s computer hardware; computer software; computer peripherals; electronic data processing equipment; computer networking and data communications equipment; computer components and parts and the contested measuring instruments; pressure controllers [gauges]; measuring devices, electric; dosage dispensers; automatic dosage apparatus; pH meters; digital pH meters; rulers [measuring instruments]; digital indicators; electronic meters; gauges with digital readout; pool alarms. The opponent argues that, for example, its software, computer peripherals or electronic data processing equipment are important for the use of some of the contested goods; however, they are not complementary because they do not target the same public. The peripherals, data processing equipment or software would be an integrated part of the equipment, and would target its manufacturer and not the final consumer of the end product. Therefore, the opponent’s goods and the contested goods do not have the same producers, distribution channels or purpose.

The goods are dissimilar.

2. Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

COSTS

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

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

According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, the costs to be paid to the applicant are the costs of representation which are to be fixed on the basis of the maximum rate set therein. In the present case the applicant did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.

The Opposition Division

Dorothee SCHLIEPHAKE

Patricia LOPEZ FERNANDEZ DE CORRES

Marianna KONDAS

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.