OPPOSITION No B 2 752 858

Stoller Europe, S.L.U., C/ Alisios Nº 24, Pol. Ind. Pla de la Vallonga, 03006 Alicante, Spain (opponent), represented by Alberto Paz Espuche, Muelle de Poniente s/n (Antigua Casa del Mar), 03001 Alicante, Spain (professional representative)

a g a i n s t

Bayer Intellectual Property GmbH, Alfred-Nobel-Str. 10, 40789 Monheim am Rhein, Germany (applicant), represented by Petra Lorenz, Alfred-Nobel-Straße 10, 40789 Monheim am Rhein, Germany (employee representative).

On 25/04/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 752 858 is upheld for all the contested goods.

2. European Union trade mark application No 15 425 705 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 620.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 425 705, namely against all the goods in Class 5. The opposition is based on European Union trade mark registrations No 15 580 095, No 14 496 772 and No 10 515 443. 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 10 515 443.

1. The goods and services

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

Class 5: Pharmaceutical and veterinary preparations; Sanitary preparations for medical purposes; Dietetic substances adapted for medical use, food for babies; Plasters, materials for dressings; Material for stopping teeth, dental wax; Disinfectants; Preparations for destroying vermin; Fungicides, herbicides.

Class 35: Wholesaling and retailing in shops and wholesaling and retailing via global communication networks of chemicals used in plant nutrition and chemicals used in the handling of plants’ physiological systems; Import and export, business management assistance in relation to franchising.

The contested goods are the following:

Class 5: Preparations for destroying vermin; Herbicides; Fungicides.

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 5

Preparations for destroying vermin; herbicides; fungicides are identically contained in both lists of goods.

2. Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods found to be identical are directed at the public at large and also at business customers with specific professional knowledge or expertise, for example companies or businesses specialising in the agricultural sector and the cultivation of crops. The degree of attention may vary from average to high.

3. The signs

	STROLLER
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 sign composed of the verbal element ‘STOLLER’, written in black upper case letters, and a fanciful figurative element combining curling lines and geometrical forms in black and white. The figurative element is placed above the verbal element. Neither the word element ‘STOLLER’ nor the figurative element of the earlier mark has a meaning in the relevant territory; therefore, they are distinctive. Both elements are more or less of the same size and centred; therefore, the earlier mark has no element that could be considered more dominant (visually eye-catching) than other elements.

The contested sign is a word mark and consists of the word ‘STROLLER’, written in a standard black upper case typeface. The word ‘STROLLER’ will be understood by the English-speaking part of the public as referring to a person taking a leisurely walk or to a pushchair. For the remaining part of the public, it has no meaning. As it is not descriptive, allusive or otherwise weak for the relevant goods, it is distinctive.

Visually, the signs coincide in the string of letters ‘ST*OLLER’. They differ in the letter ‘R’, which is not included in the earlier sign, and in the figurative element, which has no counterpart in the contested sign.

When signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37). Considering this, the signs are visually similar to an average 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 ‛ST*OLLER’, present identically in both signs. The pronunciation differs in the sound of the letter ‛R’ of the contested sign, which has no counterpart in the earlier mark. However, the Opposition Division notes that, since the letter ‘R’ appears between other letters, in fact as a third after two other consonants, its impact will be reduced. Consequently, the signs are considered aurally similar to a high degree.

Conceptually, only the English-speaking part of the public will perceive the meaning of the contested sign, because, as explained above, the earlier sign has no meaning in the relevant territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

For the remaining part of the public, neither of the signs has a meaning in the relevant territory. Consequently, for that part of the public, a conceptual comparison is not possible, since the conceptual aspect does not influence the assessment of the similarity of the signs.

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The likelihood of confusion must be appreciated globally, taking into account all the factors relevant to the circumstances of the case; this appreciation depends on numerous elements and, in particular, on the degree of recognition of the mark on the market, the association that the public might make between the two marks and the degree of similarity between the signs and the goods and services (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

In the present case, the goods at issue are identical and are directed at the public at large and business customers. The degree of attention may vary from average to high.

The signs are visually similar to an average degree and aurally similar to a high degree; conceptually, either they are not similar or a conceptual comparison is not possible. The difference between the distinctive verbal elements results from only one letter in the contested sign, and the figurative element in the earlier mark, which has no counterpart in the contested sign, will have less impact because consumers tend to focus on verbal elements. In addition, account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, §  54).

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 10 515 443. It follows that the contested trade mark must be rejected for all the contested goods.

As earlier European Union trade mark registration No 10 515 443 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

COSTS

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

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

According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Jorge GÓMEZ ZARAGOZA

Arkadiusz GORNY

Elisa ZAERA

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

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.