CANCELLATION No 39 788 C (INVALIDITY)

Fr. Kaiser GmbH, Bahnhofstr. 35, 71332 Waiblingen, Germany (applicant), represented by Stumpf Patentanwälte PartgmbB, Alte Weinsteige 73, 70597 Stuttgart, Germany (professional representative)

a g a i n s t

Jarosław Prymas “Agrecol” J.P., Mesznary 2, 98-400 Wieruszów, Poland (applicant), represented by Kancelaria Prawa Wlasności Przemysłowej, Kujawska 24/2, 30-042 Kraków, Poland (professional representative).

On 21/10/2020, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is rejected in its entirety.

2. The applicant bears the costs, fixed at EUR 450.

REASONS

The applicant filed an application for a declaration of invalidity against some of the goods, being all of the goods in Class 5 and some of the goods in Class 8 of European Union trade mark No 15 495 401 (the EUTM) for the figurative sign as shown below:

The application is based on the following earlier marks:

 European trade mark registration No 1 159 250 ‘AEROXON’ (word mark);

 German trade mark registration No 2 014 629 ‘Aeroxon’ (word mark);

 German trade mark registration No 302 009 058 792 (figurative sign).

The applicant invoked Article 60(1)(a) EUTMR in connection with Article 8(1)(a) and (b) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The case for the applicant

The applicant argues that the earlier marks have a normal degree of inherent distinctiveness but that they have gained enhanced distinctiveness through intensive use by the time of filing of the EUTM. The marks have been put to intensive use in Germany and the EU for many years, having been used since 1911. It submits evidence in support of the claim that is listed in detail below and explains the relevance of the evidence to prove the enhanced distinctiveness of the earlier marks. The applicant also participates in international trade shows regularly. It claims to be the global leader in household insecticides, namely, fly catchers. Therefore, it claims that the earlier marks have an enhanced degree of distinctive character. The applicant claims that as its goods are household insecticides they are addressed to the average consumers whose degree of attention is average.

The applicant claims that the goods in comparison are identical or similar. In relation to the signs it argues that the shield in the contested sign is commonly used in advertising so it is the word ‘AROX’ written on the red ribbon that is more eye-catching. Therefore, the applicant claims that the figurative elements will not affect the perception of the sign as it is merely decorative. The signs are visually similar to an average degree. Aurally it claims that both signs will be pronounced in two syllables as ‘ae’ in the earlier mark is pronounced as ‘e’ in all languages of the EU, particularly in English. It argues that the beginning of the contested sign will be pronounced identically and the only difference is in the additional syllable ‘on’ in the earlier sign. It argues that the letter ‘X’ in both signs is dominant and in the middle of the words and this will also result in a risk of confusion. As consumers pay more attention to the beginning of signs, and the beginning of the signs is the same, while the ending ‘on’ is common in many languages and will be paid less attention to, the signs are highly similar. It relies on the Board of Appeal decision of 20/11/2017, R 1004/2017-4 ‘Celeson/CELESIO’ and the decision of the Cancellation Division of 22/02/2019, 14 940 C ‘AROXOL/AROX’ to back up these arguments. The applicant states that as neither of the signs has a meaning the conceptual comparison is neutral. Therefore, there is a likelihood of confusion.

The applicant points out that the proprietor in its observations does not deny that the goods in conflict are identical and similar. However, the applicant denies that the public is professional or that the goods are specialist goods only sold through specialists stands with professional assistance but argues that they are mainly sold to the general public in supermarkets and drugstores and even on Amazon as will the proprietor’s goods. Moreover, the goods will be sold at low prices and the level of attention of consumers will be average. It contests the proprietor’s arguments and insists that the signs are phonetically highly similar and points to how the Board of Appeal laid out the pronunciation of the marks as /ae-ro-xon/ and /ae-rox/ in its decision of 16/10/2018, R 13/2018 ‘AROX / AEROXON’. It further argues that consumers pay more attention to the beginning of marks and they have the same identical distinctive beginning and thus the signs cannot be completely different. The applicant again refers to the above cited AROX/AROXOL decision and contests the proprietor’s comments on same, and insists that the Office decided they were highly similar and that the same should apply in the present application. The applicant repeats that the signs are visually similar to an average degree. It insists that the evidence previously submitted is sufficient to prove the enhanced distinctive character of the earlier marks and that taking everything into consideration there is a likelihood of confusion between the signs in conflict.

In support of its observations, the applicant filed the following evidence:

 Annex 1: Affidavit signed by the CEO stating that fly catchers have been sold under the earlier marks in Germany since 1911 and since then has increased to a wide range of insecticides which are sold in many different countries. The applicant’s products have been rated by several certification institutes like ‘Öko-Test’, awarded a ‘BLUE ANGEL environmental label’ and certified by ‘Woolmark’ or are listed in the resource list for organic farming in Germany. It claims very high turnover figures for its goods and states that it has a large promotional and advertising spend and a large market share for household insecticides in Germany, between 16%-28%. It sells its goods to many countries in the EU.

 Annex 2: German product overview with a date of 03/2017 on the bottom of the printouts.

 Annex 3 + 3a: Copies of certifications and translation.

 Annex 4: A cover page of Nielsen reports for 2013, 2015 and 2017 each followed by a table with AEROXON on it and the names of other companies and some figures but with no further explanation on it or any indication in English of what the figures refer to.

 Annex 5: List of distributors of the appellant within the EU.

 Annex 6: Selection of publications promoting the “AEROXON” product in German with no translations into English.

 Annex 7: Selection of dated advertisement and product information.

 Annex 8: Invoice for a stand at the PLMA international council dated in 2012, 2014 and 2017. Photos which were taken during the PLMA trade show in Amsterdam in which the stand contains products bearing the sign but the stand is empty in the photographs.

 Annex 9: List disclosing in detail the specific names of the different AEROXON products from 2013-2018 and in which country they were sold, it is an internal document.

 Annex 10 + 10a: Copy of an article from an unknown, possibly an internal document or brochure of July 2014 and translation concerning the applicant company history, its products and achievements.

 Annex 11: Invoice showing sales of goods to customers in Germany and Austria ranging from hundreds of EUR to tens of hundreds of EUR.

 Annex 12: national product registrations regarding AEROXON products and insecticides of Fr. Kaiser GmbH according to the Biocide regulation (EU) 528/2012 throughout the EU in the form of extracts from the pertinent EU database ECHA.

Evidence submitted on 23/04/2020:

 Annex 12: (The Cancellation Division notes that this is a double use of the number of this annex on the part of the proprietor but leaves it as such as that is how it is numbered in the file) Overview of stores in which insecticides are available.

 Annex 13: Extract from AMAZON Poland regarding AROX products.

 Annex 14: Selection of trademarks comprising the visual element of an heraldic shield with a banner.

The case for the EUTM proprietor

The proprietor accepts that the goods and services in conflict are identical and similar. However, the proprietor points to the previous Opposition Division decision of 23/11/2017 between the parties and the Board of Appeal decision of 16/10/2018, R13/2018-2 and lays out the findings therein. It relies on these decisions as the parties are the same as in the present application, the trade marks and goods are the same, the only difference are the two additional German marks in this case but it claims that they are the same or less similar. It insists that the same findings should be applicable in the present case, namely, that the signs are visually and phonetically lowly similar; conceptually the signs are not similar as the earlier mark will be associated with AERO referring to air whereas the contested sign has no meaning; the public is both the general and professional public and the attention ranges from average to high; and that all of this leads to a conclusion of no likelihood of confusion. The proprietor contests the evidence of enhanced distinctiveness and denies that the applicant has proven this point. The proprietor argues that it has been using its ‘AROX’ sign for 8 years on the German market which itself has gained renown, so the applicant has implicitly accepted the co-existence of the signs and there has been no likelihood of confusion.

In its rejoinder the proprietor contests the arguments put forward by the applicant and confirms and expands its previous arguments.

In support of its observations, the EUTM proprietor filed the following evidence:

 Annex 1. The CD ROM contains all kinds of documentation presenting products bearing the AROX trademark: such as advertising spots, designs of product labels, advertisements for press, leaflets, catalogues – ordered as follows:

 Adwords (online advertising),

 labels not included in the catalogue,

 magazines/ leaflets,

 other,

 outdoor advertising,

 press advertisements,

 TV advertising spots,

 catalogue 2018/2019

 Sales arrangements for AROX products for 2013-2019 in Polish and their translations in English (separate files, reading described)

 Statement of expenditure on advertisement of products AROX in Polish and their translations in English (separate files, reading described)

 Annex 2. Advertisements in trade journals (m.in. VIRIDIS – Magazyn Centrow Ogrodniczych and Biznes Ogrodniczy) were also enclosed as evidence. Due to the volume of evidence a front page of the journal is presented and the page with the AROX products advertisement..

 Annex 3. The evidence includes also expenses for sponsoring of programmes and/or films broadcasted in Polish nationwide television channels – TVP1 and TVN. It is commonly known that a commercial of AROX products immediately precedes or follows the programme.

 Annex 5. Lists of AROX products volumes sold both in Poland and abroad are enclosed (Polish version and a translation into English).

 Annex 6. Statements of advertising expenses are enclosed (Polish version and its translation into English)

 Annex 7. Catalogues of AROX products.

LIKELIHOOD OF CONFUSION — ARTICLE 60(1)(a) EUTMR IN CONNECTION WITH 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 goods

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.

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

European trade mark registration No 1 159 250 ‘AEROXON’

Class 5: Preparations for destroying vermin, including parasites and moths, with a chemical, biochemical and genetically engineered base; insecticides with or without protective substances and protection mechanisms for useful insects, fly catching paper.

Class 21: Mechanical preparations for destroying noxious animals and traps for vermin, fly catching paper, insect catching devices in the form of tree gum rings and boards and strips coated with glue, including the aforesaid goods in various colours, tins of bait, moth-catching paper, insect traps with glue-coated surfaces, fly-swats, mouse traps.

German trade mark registration No 2 014 629 ‘Aeroxon’

Class 5: Insecticides not for human use in liquid or solid form (other than medicaments), flypapers, insect traps in the form of tree glue bands and sticky panels and strips, including in various colours, insecticides other than medicaments, with protective devices (bait boxes) accessible only to certain insects, moth paper.

Class 21: Insect traps with glued surfaces, mechanical pesticides, fly swatters, mousetraps.

German trade mark registration No 302 009 058 792

Class 1: Chemicals used in agriculture, horticulture and forestry.

Class 5: Preparations for luring, destroying and repelling animals, including parasites, insects and moths, with a chemical, biochemical and genetically-engineered base; insecticides with or without protective substances and protection mechanisms for useful insects; Fly catching paper; Fungicides; Disinfectants; Pesticides, namely, insect traps in the form of tree glue bands and sticky panels and strips, including in various colours; Mothproofing paper; stable flycatchers, fly rolls, fly cuffs.

Class 21: Mechanical products for destroying vermin, in particular trip traps, fly swats, bait jars, products for deterring animals; Means for removing insects and arachnids (tick cards), food moth traps, clothes moth traps; Traps for vermin; flycatchers, namely window fly traps, flower traps; bait boxes; Sticky pad insect traps; Fly swatters; Mouse traps.

The contested goods are the following:

Class 5: Fungicides; Herbicides; Insecticides; Pesticides; Herbicides; Repellents; Preparations for destroying dry rot fungus; Larvae exterminating preparations; Chemical preparations to treat mildew; Repellents (insect-); Preparations for destroying insects; Slug exterminating preparations; Preparations for destroying rodents; Tobacco extracts (insecticides); Disinfectants.

Class 8: Insecticide sprayers.

Contested goods in Class 5

The contested fungicides; disinfectants are identically contained in the lists of goods of the earlier German mark No 302 009 058 792 and therefore they are identical. The contested fungicides also overlap with the earlier goods insecticides with or without protective substances and protection mechanisms for useful insects of the earlier EUTM No 1 159 250 and Insecticides not for human use in liquid or solid form (other than medicaments), of the earlier German mark No 2 014 629. The contested disinfectants are highly similar to the earlier goods insecticides with or without protective substances and protection mechanisms for useful insects of the earlier EUTM No 1 159 250 and Insecticides not for human use in liquid or solid form (other than medicaments), of the earlier German mark No 2 014 629 as they have the same purpose and usually coincide in producer. Moreover, these goods are aimed at the same end user and are sold through the same distribution channels.

The contested herbicides (listed twice); chemical preparations to treat mildew are similar to a high degree to the applicant’s preparations for destroying vermin, including parasites and moths, with a chemical, biochemical and genetically engineered base of the earlier EUTM No 1 159 250, Insecticides not for human use in liquid or solid form (other than medicaments), of the earlier German mark No 2 014 629 and fungicides, in the German mark No 302 009 058 792. These goods have the same purpose and nature. They can also have the same producer and distribution channels. Furthermore, they target the same public.

The contested insecticides; preparations for destroying insects; tobacco extracts (insecticides); larvae exterminating preparations; slug exterminating preparations; preparations for destroying rodents at least overlap with the applicant’s preparations for destroying vermin, including parasites and moths, with a chemical, biochemical and genetically engineered base of the earlier EUTM No 1 159 250, or are identically contained in both lists or at least overlap with Insecticides not for human use in liquid or solid form (other than medicaments), of the earlier German mark No 2 014 629 and with insecticides with or without protective substances and protection mechanisms for useful insects, in the German mark No 302 009 058 792. Therefore, they are identical.

The contested pesticides, which are substances used to kill insects or other organisms which are harmful to cultivated plants or animals, overlap with the applicant’s preparations for destroying vermin, including parasites and moths, with a chemical, biochemical and genetically engineered base of the earlier EUTM No 1 159 250, and insecticides not for human use in liquid or solid form (other than medicaments) of the earlier German mark No 2 014 629 and insecticides with or without protective substances and protection mechanisms for useful insects, in the German mark No 302 009 058 792. Therefore, they are identical.

The contested preparations for destroying dry rot fungus are included in the applicant’s fungicides of the earlier EUTM No 1 159 250 and the German mark No 302 009 058 792. Therefore, they are identical. These goods are highly similar to Insecticides not for human use in liquid or solid form (other than medicaments), of the earlier German mark No 2 014 629.

The contested repellents; repellents (insect -) are included in the earlier goods insecticides with or without protective substances and protection mechanisms for useful insects of the earlier EUTM No 1 159 250 and Insecticides not for human use in liquid or solid form (other than medicaments), of the earlier German mark No 2 014 629 and the following earlier goods reparations for repelling animals, including parasites, insects and moths, with a chemical, biochemical and genetically-engineered base, of the earlier German mark No 302 009 058 792 are contained within the broader category of the contested goods and the Cancellation Division cannot ex officio split the list of goods, therefore, they are identical.

Contested goods in Class 8

The contested insecticide sprayers are implements (hand tools) for spraying insecticide. They are similar to the opponent’s insecticides with or without protective substances and protection mechanisms for useful insects of the earlier EUTM No 1 159 250, Insecticides not for human use in liquid or solid form (other than medicaments), of the earlier German mark No 2 014 629 and with insecticides with or without protective substances and protection mechanisms for useful insects, in the German mark No 302 009 058 792. These goods have the same purpose (for killing insects), producers and distribution channels. Furthermore, they target the same public.

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, contrary to the applicant’s arguments, the goods found to be identical or similar to varying degrees are directed at the public at large and at business customers with specific professional knowledge or expertise such as farmers and horticulturalists. The applicant provided evidence that the earlier mark is sold through supermarkets or online via Amazon to argue that the public is only the general public. However, what is important is the general category of goods itself, the way the goods are marketed individually by the applicant is not decisive. Therefore, the broad categories of goods for which all of the marks in conflict are registered, and which have been found to be identical or similar to varying degrees, will be directed at both the general public and the specialist. Consequently, the applicant’s argument in this respect must be rejected.

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.

c) The signs

1) AEROXON (EUTM No 1 159 250) 2) AEROXON (DE No 2 014 629) 3) (DE No 302 009 058 792)
Earlier trade mark	Contested trade mark

The relevant territory is the European Union (sign 1)) and Germany (signs 2) and 3)).

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 only verbal element of all of the earlier signs, ‘AEROXON’, as a whole does not have any meaning for the public in the relevant territories and is therefore distinctive in relation to the goods. However, the Cancellation Division notes that the initial element ‘AERO’ will be perceived as a commonly used prefix to denote air, as it exists in all the languages of the European Union in words such as ‘aerodynamic’ or ‘aerosol’. In relation to the relevant goods, which can be sprayed with an aerosol, this element is therefore weak, although for the remaining goods which will not be sprayed this element has an average degree of distinctive character. In relation to the earlier sign No 3) there is also a figurative element consisting of a black oval shape in which the word element is depicted in a mildly stylised white title case typeface, over which there is a depiction of a chameleon or lizard type animal sitting on top of the final letter ‘n’ and with an outstretched tongue that reaches to the second letter, ‘e’ and is catching a fly or insect. There is also a registered trade mark symbol at the end of the word ® but this has no trade mark significance and will not be taken into consideration in the following examination. The black oval shape is a simple geometric shape and merely serves a decorative purpose or to highlight the other elements. Therefore, it is non-distinctive. The image of the chameleon or lizard trapping the fly alludes to the goods, many of which are for trapping or killing insects but it is somewhat original and therefore also has a certain degree of distinctive character.

The contested sign is a figurative sign consisting of a green shield with a gold frame with a red ribbon superimposed on top and encircling the shield which produces a somewhat 3D visual effect. On top of the red ribbon appears the word ‘AROX’ written in white standard upper case letters in the centre of the sign. The applicant argues that figurative element of the shield is frequently used in advertising and as such it is merely decorative. In this respect the applicant has submitted a copy of register details for a number of marks that include a shield in the sign. However, the fact that these signs are on the register does not in itself prove that the shield is commonly used in advertising. There is insufficient evidence to back up this claim and therefore it is rejected. The Cancellation Division considers that the shield does have at least a certain degree of distinctive character particularly in relation to its somewhat original 3D like effect.

In terms of the dominant elements of the contested sign it is the verbal element ‘AROX’ and the red banner which are the most dominant (visually eye-catching). In particular, the word ‘AROX’ is written in large bold white capital typeface which stands out on the red background of the banner and they are centrally placed in the middle and to the front of the sign (due to the 3D effect) which causes this element to stand out.

Since the word ‘AROX’ is meaningless, it is distinctive to an average degree in relation to the goods. In relation to the figurative element, 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).

Visually, the signs coincide in the letters ‘A*ROX*’. Although all the letters of the earlier sign are included in the contested sign, they are not in the same position, except for the initial letter ‘A’. The signs differ in the additional letters ‘E’ and ‘ON’ of the earlier sign, placed respectively after the initial letter ‘A’ and at the end of the sign. The signs also have different lengths, since the earlier sign is composed of seven letters, whereas the word element of the contested sign is rather short, with only four letters. The beginnings of the signs, where the public’s attention is usually focused, are different (‘AERO’ versus ‘AR’). The signs further differ in the figurative element of the contested sign, as described above and in the case of sign No 3) above in the figurative element as described previously also. Therefore, the signs are visually similar to only a low degree.

Aurally, the applicant claims that both signs will be pronounced in two syllables as ‘ae’ in the earlier mark is pronounced as ‘e’ in all languages of the EU, particularly in English and claims that the Board of Appeal laid out the pronunciation of the marks as /ae-ro-xon/ and /ae-rox/ in its decision of 16/10/2018, R 13/2018 ‘AROX / AEROXON. It argues that the beginning of the contested sign will be pronounced identically and the only difference is in the additional syllable ‘on’ in the earlier sign. It argues that the letter ‘X’ in both signs is dominant and in the middle of the words and this will also result in a risk of confusion. Furthermore, the ending of the earlier mark, ‘ON’ is likely not to be overheard and, as the ending ‘ON’ is very common in many languages of the European Union, and the average consumer will pay less attention to it.

However, the Cancellation Division cannot agree with the above-mentioned arguments. In particular, the letter ‘x’ is not dominant in the pronunciation. The conflicting signs consist of, respectively, two and three syllables and not as two syllables as the applicant argues. The Board of Appeal laid out the pronunciation of the signs as /æ-rox-on/ (e.g. in English) or /a-e-ro-xon/ (e.g. in Spanish and French) and the contested sign is likely to be pronounced as /a-rox/ or /æ-rox/ (e.g. in English) and as /a-rox/ (e.g. in Spanish and French). The Cancellation Division agrees with the Board of Appeals findings in this respect. The earlier EUTM and the earlier German marks will be pronounced by the German public as /ɛə-ro-xon/, whereas the contested sign is pronounced /a-rox/. The Cancellation Division notes that the earlier marks will be pronounced in three syllables whereas the contested in two syllables and the rhythm and intonation are different and agrees with the finding of the Board of Appeal that the signs are aurally similar to a low degree. Therefore, contrary to the applicant’s argument the signs are not aurally similar to a high degree. The letter ‘x’ forms part of the second (last) syllable of the contested sign and the third syllable of the earlier sign. As such, it is phonetically no more important than the other sounds the conflicting signs consist of. In relation to the ending ‘ON’, given that the earlier sign will be pronounced as /æ-ro-xon/, it is unlikely the element ‘ON’ will be missed by the consumer. Furthermore, the element ‘ON’ makes the earlier mark into a three syllable word. It therefore plays an important role in relation to the rhythm and intonation of the pronunciation of the earlier mark. Therefore, there is no reason why consumer would not pay attention to it and this argument must be rejected.

The Cancellation Division notes that the case referred to by the opponent of 20/11/2017,

R 1004/2017-4, Celeson / CELESIO does not affect the above assessment. In the aforementioned decision the particulars of the case were different as the signs had an identical string of letters at the start C-E-L-E-S and only differed in the final element O-or I-O but even in relation to this final element they both shared the letter O so they only differed in one letter near the end of the sign where consumers pay less attention. Therefore, this decision is not comparable to the present. The applicant also relied on the decision of the Cancellation Division of 22/02/2019, 14 940 C ‘AROXOL/AROX’ 14 940. However, again this decision can be distinguished from the present case as in that case the beginnings of both signs were identical which is not the case here. Therefore, these arguments of the applicant must be set aside.

Overall, given the differences in the pronunciation (/æ-ro-xon/ versus or /a-rox/) and the different rhythm and intonation of the conflicting signs, the Cancellation Division considers that the signs are phonetically similar to a low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As a whole, the earlier signs have no meaning; however, the prefix ‘AERO’, will be perceived as referring to air and in sign No 3) there is the concept of a gecko or lizard eating a fly which will be grasped by all consumers. The word element ‘AROX’ of the contested sign is meaningless, and the contested sign also depicts a banner and a shield. Therefore, 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 marks

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

According to the applicant, the earlier marks have been extensively used and enjoy an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the applicant to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’). The examination will proceed on the assumption that the earlier marks have enhanced distinctiveness.

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 11 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C251/95, Sabèl, EU:C:1997:528, § 22).

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

In the present case the signs in conflict have been found to be visually and aurally similar to a low degree and conceptually the signs are not similar. The goods in conflict have been found to be partially identical, partially highly similar and partially similar. The relevant public is the public at large and the professional public whose level of attention ranges from average to high. The earlier marks are assumed to have an enhanced degree of distinctive character.

However, due to the many differences in the signs, in their letters or the order of the letters, their lengths and their figurative elements, even taking into account that some of the goods are identical, the Cancellation Division finds that the differences between the signs safely counterbalance the low visual and aural similarities. Moreover, conceptually the signs are not similar. The differences are, therefore, sufficient to exclude any likelihood of confusion on the part of the public, including the risk that consumers might believe that the goods come from the same undertaking or from economically linked undertakings. This is particularly true when the public displays a high degree of attention but even will be the case where that degree of attention is average also. This applies even assuming an enhanced distinctiveness of the earlier marks considering that the signs are sufficiently different for the public not to confuse them.

Considering all the above, there is no likelihood of confusion on the part of the public and the application for a declaration of invalidity as based on this ground must be rejected.

The applicant also relies on the ground of Article 60(1)(a) EUTMR in conjunction with Article 8(1)(a) EUTMR. However, this ground must also be rejected as the signs are clearly not identical. Therefore, the application for a declaration of invalidity must be rejected in its entirety.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.

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

According to Article 109(7) EUTMR and Article 18(1)(c)(ii) EUTMIR, the costs to be paid to the EUTM proprietor are the representation costs, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

Ioana MOISESCU

Nicole CLARKE

María Belén IBARRA DE DIEGO

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 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.