OPPOSITION No B 2 787 128

Great Ormond Street International Promotions Limited, 40 Bernard Street, WC1N 1LE London, United Kingdom (opponent), represented by Stobbs, Building 1000, Cambridge Research Park, CB25 9PD Cambridge, United Kingdom (professional representative)

a g a i n s t

Neverland GmbH, Industrieweg 10, 2225 Zistersdorf, Austria (applicant).

On 06/08/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 787 128 is upheld for all the contested services.

2. European Union trade mark application No 15 617 624 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the services of European Union trade mark application No 15 617 624, ‘Neverland’, (word mark). The opposition is based on inter alia, United Kingdom trade mark registration No 2 425 777, ‘NEVERLAND’, (word mark). The opponent invoked Article 8(1)(a) and (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 United Kingdom trade mark registration No 2 425 777.

1. The services

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

Class 36: Fundraising services; financial affairs; monetary affairs.

The contested services are the following:

Class 36: Financial investment.

The contested financial investment is included in the broad category of the opponent’s financial affairs. Therefore, they are identical.

2. The signs

NEVERLAND	Neverland
Earlier trade mark	Contested sign

Both trade marks are word marks, and they are identical.

The protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics which that mark might possess (judgment of 22/05/2008, T-254/06, RadioCom, EU:T:2008:165, § 43). Therefore, it is irrelevant whether the word mark is depicted in lower or upper case letters.

3. Global assessment, other arguments and conclusion

The signs were found to be identical and the contested services, as established above in section a) of this decision, are identical. Therefore, the opposition must be upheld under Article 8(1)(a) EUTMR for these services. Therefore, the opposition is well founded on the basis of the opponent’s United Kingdom trade mark registration No 2 425 777. It follows that the contested trade mark must be rejected for all the contested services.

As the earlier right, United Kingdom trade mark registration No 2 425 777 leads to the success of the opposition and to the rejection of the contested trade mark for all the services against which the opposition was directed, there is no need to examine the other earlier right invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

Since the opposition is fully successful on the basis of the ground of Article 8(1)(a) EUTMR, there is no need to further examine the other grounds of the opposition, namely Article 8(1)(b) EUTMR.

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 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 Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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

Justyna GBYL

Aurelia PEREZ BARBER

Irena LYUDMILOVA LECHEVA

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.