OPPOSITION No B 2 931 544

Ledvance GmbH, Parkring 29-33, 85748 Garching bei München, Germany (opponent), represented by df-mp Dörries Frank-Molnia & Pohlman Patentanwälte Rechtsanwälte PartG mbB, Fünf Höfe Theatinerstr. 16, 80333 München, Germany (professional representative)

a g a i n s t

Shenzhen Leida Technology Co., Ltd, Rm. 221, 2F, Business Bldg., Tangxi Garden, Gushu Yilu, Xixiang St., Baoan Dist., Shenzhen, Guangdong, People’s Republic of China (applicant), represented by Rolim Mietzel Wohlnick & Calheiros LLP, Graf-Adolf-Straße 14, 40212 Düsseldorf, Germany (professional representative).

On 12/06/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 931 544 is upheld for all the contested goods.

2. European Union trade mark application No 16 545 221 is rejected in its entirety.

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

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 16 545 221 for the word mark ‘Luniquz’. The opposition is based on European Union trade mark registration No 16 232 043 for the word mark ‘LUNIQUE’. 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: Optical, measuring, signaling and control apparatus and instruments; apparatus for recording, transmission or reproduction of images, data and sound; magnetic data carriers; data processing devices and computers; computer programs and software of all kind (included in this class); software applications [apps] for electrical and communication devices; light-emitting diodes [LED] and laser diodes, including organic light-emitting diodes [OLED]; light guide, optical couplers, optical sensors, photo-electric detector, signaling lights incorporating LEDs; displays in LED-technology; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; electric and electronic apparatus and instruments for the operation, regulation and control of LED-lighting installations, LED luminaires and LED lamps; electric and electronic apparatus and instruments for the operation, regulation and control of building installations, including power-supply- and interface modules such as electronic ballasts, dimmers, electric adapters and contact elements, plug connectors, clamps, sleeve sockets, switches, circuit breakers, ready-made special cables; electric and electronic devices and apparatus for the operation, regulation and control of lighting facilities, luminaires and lamps for central building control systems and for the regulation and control of building installations, especially interfaces for such apparatus and devices as well as transformers and electronic ballasts; choking contact elements including plugs, clips, sleeves, switch gears, interrupters; parts of all the aforesaid goods included in this class.

Class 11: Lighting apparatus, especially lamps and luminaires; lighting apparatus as well as lighting systems consisting mainly of lamps and luminaires; lighting apparatus based mainly on LEDs, organic LEDs, LED lamps, LED luminaires and their parts; light-emitting diode [LED] lamps and light-emitting diode [LED] luminaires and their parts, included in this class; light-emitting diode (LED) lamps and light-emitting diode (LED) lighting apparatus, fixtures and installations and their parts, included in this class; light modules and lighting apparatus with organic or non-organic light-emitting diodes (LEDs) as means of lighting.

The contested goods are the following:

Class 11: Lamps; lampshades; glass covers for lamps; glass covers being fittings for lamps for sun lamps; chandeliers; ceiling lights; electric lights for Christmas trees; aquarium lights; fairy lights for festive decoration; string lights for festive decoration; lights for vehicles; oil lamps; electrical light bulbs; Chinese lanterns; light-emitting diodes [led] lighting apparatus.

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 contested lamps; chandeliers; ceiling lights; electric lights for Christmas trees; aquarium lights; fairy lights for festive decoration; string lights for festive decoration; lights for vehicles; oil lamps; Chinese lanterns (which could be electric Chinese lanterns); light-emitting diodes [LED] lighting apparatus are included in, or overlap with, the broad category of the opponent’s lighting apparatus as well as lighting systems consisting mainly of lamps and luminaires. Therefore, they are considered identical.

The contested lampshades; glass covers for lamps; glass covers being fittings for lamps for sun lamps; electrical light bulbs are parts and fittings for the opponent’s lighting apparatus as well as lighting systems consisting mainly of lamps and luminaires. The goods have the same producers, end users and distribution channels. Furthermore, they are complementary. These are, therefore, considered similar to a high degree.

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 or similar to a high degree are directed at the public at large as well as at professionals, such as those engaged in installing lighting.

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

3. The signs

LUNIQUE	Luniquz
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 unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The word ‘LUNIQUE’, constituting the earlier mark, has no particular meaning for part of the relevant public, such as the Czech- and Polish-speaking parts. Consequently, the Opposition Division finds it appropriate to first focus the comparison of the signs on the Czech- and Polish-speaking parts of the relevant public.

As the element ‘LUNIQUE’ of the earlier mark has no particular meaning for the abovementioned part of the public, it is distinctive.

The element ‘Luniquz’, constituting the contested sign, has no particular meaning for the relevant part of the public. Therefore, it is considered distinctive.

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.

Visually, the signs coincide in the sequence of letters ‘LUNIQU*’, present identically in both marks. However, they differ in their seventh, and last, letters, ‘E’ in the earlier mark and ‘Z’ in the contested sign. Reference is made to the conclusions reached above regarding the distinctiveness of the elements of the signs.

Because the signs coincide in six out of seven letters, at the beginning of both signs, the signs are visually similar to a high degree.

Aurally, the letter ‘U’ of the earlier mark may be pronounced by a part of the relevant part of the public and omitted by another part. Taking this into account, it follows that the pronunciation of the signs coincides in the sounds of the letters ‛LUNIQ(U)*’, present identically in both signs. The pronunciation differs in the sound of the seventh letter, ‛E’, of the earlier mark and the sound of the letter(s) ‘(U)Z’ in the contested sign. Reference is made to the conclusions reached above regarding the distinctiveness of the elements of the signs.

Therefore, the signs are considered aurally similar to at least an average degree.

Conceptually, neither of the signs has a particular meaning for the relevant part of the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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 relevant part of the public. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

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 goods are identical or similar to a high degree and target the public at large as well as professionals. The degree of attention of the public may vary from average to higher than average when purchasing the goods. Furthermore, the signs are visually highly similar and aurally similar to at least an average degree.

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

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). Furthermore, the Opposition Division considers that the visual and aural similarities between the signs and the identity or high degree of similarity between the goods are sufficient to lead to a likelihood of confusion, including a likelihood of association, between the marks, even when the consumers display a higher than average degree of attention with respect to the goods. 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 Czech- and Polish-speaking parts of the relevant public. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 16 232 043. It follows that the contested mark must be rejected for all the contested goods.

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

Maria SLAVOVA

Mads Bjørn Georg JENSEN

Irina SOTIROVA

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.