OPPOSITION No B 2 900 515

Daimler AG, Mercedesstr. 120, 70372 Stuttgart, Germany (opponent), represented by Jensen & Son, 366-368 Old Street, EC1V 9LT London, United Kingdom (professional representative)

a g a i n s t

Volkswagen Aktiengesellschaft, Berliner Ring 2, 38440 Wolfsburg, Germany (applicant).

On 21/02/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 900 515 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 16 389 405 for the word mark ‘IQ’, namely against all the goods in Class 12. The opposition is based on European Union trade mark registration No 15 628 357 for the word mark ‘EQ’. 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 12: Motor vehicles.

The contested goods are the following:

Class 12: Vehicles and conveyances; Vehicles for locomotion by land, air, water or rail, and parts therefor; Motorized land vehicles; Motors and drives for land vehicles; Propulsion mechanisms for land vehicles; Chassis for vehicles; Vehicle superstructures for vehicles; Couplings for land vehicles; Suspension shock absorbers for vehicles; Shock absorbing springs for vehicles; Tyres, solid, for vehicle wheels; Tires for vehicle wheels; Rims for vehicle wheels; Solid rubber tyres for vehicle wheels; Wheeled vehicles; Hubs for vehicle wheels; Inner tubes for pneumatic tires; Repair outfits for inner tubes, Adhesive rubber patches for repairing tyre inner tubes, Spikes for tires [tyres], Snow chains; Tires (Non-skid devices for vehicle -); Vehicle seats; Rearview mirrors; Head-rests for vehicle seats; Anti-theft alarms for vehicles, anti-theft devices for vehicles; Cigar lighters for automobiles; Automotive vehicles; Cars; Lorries; Trailers and semi-trailers for vehicles, trailer hitches for vehicles; Omnibuses; Motorbikes; Mopeds; Bicycles; Cable transport apparatus and installations; Carts, shopping trolleys, baggage trolleys; Aircraft; Boats, ships; Locomotives; Buses; Caravans; Tractors; Two-wheeled vehicles, scooters (vehicles); Chair lifts, cable cars; Wheelchairs for transporting invalids; Parts and accessories for all the aforesaid goods, included in this class.

Some of the contested goods are identical or similar to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 assumed to be identical are directed at the public at large and also at professionals with specific knowledge in the automotive sector, since some of the goods are very specialised (e.g. couplings for land vehicles).

Taking into consideration the price of cars, consumers are likely to pay a higher degree of attention than for less expensive purchases. It is to be expected that these consumers will not buy a car, either new or second-hand, in the same way as they would buy articles purchased on a daily basis. The consumer will be an informed one, taking all relevant factors into consideration, for example, price, consumption, insurance costs, personal needs or even prestige (22/03/2011, T 486/07, CA, EU:T:2011:104, § 27-38; 21/03/2012, T 63/09, Swift GTi, EU:T:2012:137, § 39-42). This rule applies by analogy to the other goods listed above in Class 12, including those that may not have a high price (for example, adhesive rubber patches for repairing tyre inner tubes), since they will be chosen with care because they have a bearing on the vehicle occupant´s safety.

3. The signs

EQ	IQ
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 verbal element ‘EQ’ of the earlier mark, although not very commonly used, can be understood by part of the public as the acronym for the term ‘emotional quotient’ which is the ability to understand, use, and manage one´s own emotions in positive ways to relieve stress, communicate effectively, empathize with others, overcome challenges and defuse conflict. Although this abbreviation originates from English, it can be understood also by the non-English speaking public. However, it cannot be ruled out that the public, even English-speaking consumers, will simply perceive the element ‘EQ’ as a fanciful combination of two letters of the alphabet. In any case the verbal element ‘EQ’ in the earlier mark has no direct meaning for the goods in question and is, therefore, distinctive.

The element ‘IQ’ in the contested sign is likely to be understood as the abbreviation for the expression ‘intelligence quotient’, that is, a total score derived from a set of standardized tests designed to assess human intelligence. This term is widely used, and even though it comes from English, it will be understood throughout the whole territory of the European Union. It should be noted that it could allude to some characteristics of the goods in question or be laudatory for these goods (e.g. intelligent cars), since nowadays intelligent vehicle technologies and use of artificial intelligence systems with regard to the goods in question are becoming more and more common. Therefore, its distinctiveness is limited.

It should be noted that the signs in conflict are short, each of them being composed solely of two letters, and this factor will be taken into account in the comparison.

Furthermore, 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 first letters of the signs will have more weight in the comparison.

Visually, the signs coincide in the letter ‘*Q’. However, they differ in their first letters, namely ‘E*’ of the earlier mark and ‘I*’ of the contested sign.

Therefore, bearing in mind the length of the signs and their distinctiveness, the signs are visually similar to a (very) 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 letter ‛Q’, present identically in both signs. The pronunciation differs in the sound of the letters ‛E’ of the earlier mark and ‘I’ of the contested sign. It should be noted that each of these letters can be pronounced in a different manner, for instance the letter ‘I’ in English will be pronounced as [aɪ], in German as [ʔiː] and in Polish as [iː], whereas the letter ‘E’ will be pronounced respectively as [iː] (English), [ʔeː] (German) and [eː] (Polish).

The opponent argues that ‘the letter E and the letter I can in a number of languages, such as English be pronounced in the same way or in the same and a similar way depending on the context and in most other European languages, such as French, German and Italian will be phonetically highly similar’. The opponent did not however submit any evidence in this regard. Bearing in mind the above explanations made by the Opposition Division and due to lack of any examples from the opponent, this claim must to be set aside.

Therefore, bearing in mind the length of the signs and their distinctiveness, the signs are aurally similar to a (very) low degree.

Conceptually, although the public will perceive the meaning of the contested sign as explained above, for part of the public the other sign has no meaning. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar. With regard to the part of the public for which the term ‘EQ’ has a meaning, the signs under comparison will convey particular meanings. In this case, as the signs will be associated with dissimilar meanings, the signs are conceptually not similar.

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

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 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 Court has stated that 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).

The goods are assumed to be identical and they target the public at large and professionals. Consumers are likely to pay a higher degree of attention with regard to the goods concerned. The signs are visually and aurally similar to a (very) low degree. The signs are conceptually not similar. Furthermore, the earlier mark has a normal degree of distinctiveness.

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).

The signs in dispute both have two letters; both are, consequently, very short marks and it is considered that the fact that they differ in one letter is a relevant factor to consider when evaluating the likelihood of confusion between the conflicting signs. The signs differ in their first letters, namely ‘E’ and ‘I’, and this difference is clearly noticeable. It affects, in an obvious manner, the three levels of the comparison. As it was explained above the beginnings are more memorable and the attention of the public will be higher than for less expensive purchases. The goods in conflict are specialised and rather expensive or can have an impact on one’s safety as they concern various types of vehicles and their parts. Therefore, as said above, the public will pay a higher degree of attention.

Taking into account the interdependence principle mentioned above, the assumed identity of the goods is counteracted by the (very) low degree of visual and aural similarity between the signs. Furthermore, the signs are not conceptually similar as at least one of them will be linked with a clear concept by the relevant public. Therefore, the public will perceive clear visual and aural differences (and for part also the different meanings of the signs) and be capable to differentiate between the signs. The Opposition Division is of the opinion that the coincidence in the second letter ‘Q’ will not lead the public to infer automatically that the goods marketed under the signs are provided by the same or economically linked undertakings.

Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

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, 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 120 EUTMR and therefore did not incur representation costs.

The Opposition Division

Helen Louise MOSBACK

Michal KRUK

Chantal VAN RIEL

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.