OPPOSITION No B 2 999 848

Schöffel Sportbekleidung GmbH, Ludwig-Schöffel-Str. 15, 86830 Schwabmünchen, Germany (opponent), represented by Vossius & Partner Patentanwälte Rechtsanwälte mbB, Siebertstr. 3, 81675 München, Germany (professional representative)

a g a i n s t

Gomathy Ramaswamy, Plot No.M3-17, SAIF Zone, PO Box 9117, null, Sharjah, United Arab Emirates (applicant), represented by A2 Estudio Legal, C/ Alcalá 143, 3º Derecha., 28009 Madrid, Spain (professional representative).

On 17/06/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 999 848 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 16 973 109 for the figurative mark , namely against all the goods in Class 25. The opposition is based on European Union trade mark registration No 14 945 554 for the word mark ‘ADAMONT’. 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.

a) The goods

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

Class 18: Travelling trunks and travelling bags; backpacks, bags for climbers, bags for campers, game bags (hunting accessories), carry cots, suitcases and valises, purses, key cases, pocket wallets, handbags, hip bags, chest bags, bags for sports, carrier bags and shoulder bags; waterproof pouches, protective covers for bags and pouches; umbrellas and parasols; walking sticks, in particular mountaineering, hiking and Nordic walking sticks.

Class 25: Clothing, apparel, in particular jackets, coats, parkas, ponchos, waistcoats, parkas, coats (top -), half-coats, suits, capes, shirts, pullovers, tee-shirts, polo shirts, undershirts, underwear, thermal underwear, blousons, trousers, leggings, skirts, leg warmers, socks, stockings, neck scarfs [mufflers], scarves, gloves [clothing], mittens, waist belts; rainwear; fleeces; soft-shell clothing; waterproof and water-repellent clothing; woollen clothing and knitwear; woollen and knitted headgear; wind-resistant clothing; headgear, in particular hats, caps [headwear], caps, headbands [clothing], hoods [clothing], head scarves, ski masks, ear muffs [clothing]; shoes, in particular boots for sports, walking boots and hiking boots.

Following the decision of 29/11/2018 in B 2 999 848 which partially rejected the contested mark and which is now final, the contested goods are the following:

Class 25: Parts and fittings of headgear included in the class.

The term ‘in particular’, used in the opponent’s list of goods, indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

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 parts and fittings of headgear included in the class are only bought by manufacturers of headgear for the production of the end goods. They do not have the same distribution channels as the opponent’s goods in Class 25, nor do they target the same end users. As they do not have the same nature and purpose, they are dissimilar to the opponent’s goods in Class 25. They are also dissimilar to the opponent’s goods in Class 18, having different nature purpose and method of use. They are neither complementary nor in competition. Furthermore, they are not sold by the same undertakings through the same distribution channels.

b) Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and 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 (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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.

The Opposition Division

Nicole CLARKE

Birgit FILTENBORG

Marine DARTEYRE

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.