OPPOSITION No B 2 928 110

Anidia, S.A., Dr. Juan Domínguez Pérez, 10-12, 35008 Las Palmas, Spain (opponent), represented by Vicario Consulting, S.L., P° Castellana, núm. 139-7° izda., 28046, Madrid, Spain (professional representative)

a g a i n s t

K-Haus d.o.o., Poljanska 19, 1000 Ljubljana, Slovenia (applicant).

On 03/10/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 928 110 is partially upheld, namely for the following contested goods:

Class 6: Armoured doors of metal; Canopies [structures] of metal; Vaults and safes, of metal; Metal roller shutter doors for security purposes; Intruder barriers of metal.

2. European Union trade mark application No 16 684 219 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 16 684 219 . The opposition is based on Spanish trade mark registration No 3 518 655 . 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.

1. The goods

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

Class 6: Metal locks and hardware.

Class 7: Cleaning appliances.

The contested goods are the following:

Class 6: Armoured doors of metal; Canopies [structures] of metal; Vaults and safes, of metal; Metal roller shutter doors for security purposes; Intruder barriers of metal.

Class 7: Glass cabinets; Display cases; Display cabinets; Display stands for merchandise.

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 6

The opponent’s goods in this class are metal locks. The goods also include hardware, which are articles made of metals such as tools, nails, fittings, utensils, etc.

The contested goods are various items of metal, such as armoured doors, structures, vaults, shutter doors and barriers of metal. The contested goods can coincide with the opponent’s metal hardware in manufacturers, distribution channels and users. The goods are similar.

Contested goods in Class 7

The contested goods are various display cases and cabinets. The contested goods have different natures, purposes and methods of use compared to all the goods of the opponent. They have different manufacturers, distribution channels and users. They are neither complementary nor in competition. These goods are dissimilar.

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 similar are directed at the public at large and at customers with specific professional knowledge or expertise.

The degree of attention ranges from average to high depending on the nature of the goods.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is Spain.

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 figurative mark contains a word element ‘KHAUS’ written in standard orange lower case typeface, and an orange angular line placed above it which points slightly downwards in the middle. The word element has no meaning for the relevant public and is, therefore, distinctive. The angular line is seen as a mere embellishment or a geometrical shape and is less distinctive than the word itself, rendering the word element the most distinctive element of the mark.

The contested sign contains a word element ‘K-HAUS’ written in standard black upper case typeface. It is placed on a purple irregular shaped background superimposed on a black background. The elements have no meaning for the relevant public and are, therefore, distinctive.

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).

Neither of the marks has any element that could be considered more dominant (visually eye-catching) than other elements.

Visually, the signs coincide in the letters ‘K’ and ‘HAUS’. They differ in the use of the dot separating the letters ‘K’ and ‘HAUS’ in the contested mark. The marks further differ in their respective typeface, figurative elements, colours and in the arrangement of these elements within each of the signs.

However, as these elements are partly less distinctive than the verbal elements, and considering the stronger impact of the verbal elements of trade marks on the consumer, the signs remain visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the pronunciation of the sequence of letters KHAUS/K-HAUS and therefore, the marks are aurally at least highly similar.

Conceptually, neither of the signs has a meaning for 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 public in the relevant territory..

5. Global assessment, other arguments and conclusion

The goods are partially similar and partially dissimilar.

The marks share the same letters ‘K’ and ‘HAUS’, the differences being in the representation of these common letters in each of the signs, that is, the dot used in the contested mark to separate the letter ‘K’ from the sequence of letters ‘HAUS’, the typefaces, the colours, and in the figurative elements which are not sufficient to avoid likelihood of confusion between these signs in the context of similar goods and the verbal elements containing five identical letters in the same order.

Considering that consumers do 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), therefore, they are very likely to confuse the signs under examination despite the level of attention they will display at the time of the purchase.

Indeed, as 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) and even consumers who pay a higher 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), they are likely to confuse the signs on account of the quasi identity of their verbal element, the only difference lying in the letter ‘K’ being separated from the letters ‘HAUS’ by a dot in the contested mark.

Considering all of the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s Spanish trade mark registration.

It follows from the above that the contested trade mark must be rejected for the goods found to be similar to those of the earlier trade mark.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR and directed against the remaining goods because the signs and the goods are obviously not identical.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Marine DARTEYRE

Erkki Münter

Nicole CLARKE

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.