OPPOSITION No B 2 985 813

easyGroup Ltd, 10 Ansdell Street, Kensington, W8 5BN, London, United Kingdom (opponent), represented by Kilburn & Strode LLP, Laapersveld 75, 1213 VB, Hilversum, the Netherlands (professional representative)

a g a i n s t

Steiner Shopping GmbH, Hainberg 28, 3383, Hürm, Austria (applicant), represented by Hubert Sacha, Gartenaugasse 3, 3500, Krems, Austria (professional representative).

On 08/04/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 985 813 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 17 019 803 ‘EASY MEUBLES’ (word mark). The opposition is based on the following earlier rights:

1. European Union trade mark registration No 10 584 001 for the word mark ‘EASYJET’ (hereinafter ‘Earlier Mark 1’);

2. European Union trade mark registration No 10 583 111 for the word mark ‘EASYGROUP’ (hereinafter ‘Earlier Mark 2’);

3. European Union trade mark registration No 10 735 496 for the word mark ‘EASYHOTEL’ (hereinafter ‘Earlier Mark 3’);

4. European Union trade mark registration No 10 735 553 for the word mark ‘EASYCAR’ (hereinafter ‘Earlier Mark 4’);

5. European Union trade mark registration No 10 735 561 for the word mark ‘EASYBUS’ (hereinafter ‘Earlier Mark 5’);

6. European Union trade mark registration No 11 624 376 for the figurative mark (hereinafter ‘Earlier Mark 6’).

In relation to the Earlier Marks 4, 5 and 6, the opponent invoked Article 8(1)(b) EUTMR. In relation to the Earlier Marks 1, 2 and 3 the opponent invoked Article 8(1)(b) and Article 8(5) EUTMR.

1. REPUTATION — ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds for refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

 The signs must be either identical or similar.

 The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

 Risk of injury: use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T‑345/08 & T‑357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

a) Reputation of the earlier trade marks

According to the opponent, the Earlier Marks 1, 2 and 3 listed above (in the section REASONS) have reputation in the European Union in relation to some of the goods and services for which they are registered.

Reputation implies a knowledge threshold which is reached only when the earlier mark is known by a significant part of the relevant public for the goods or services it covers. The relevant public is, depending on the goods or services marketed, either the public at large or a more specialised public.

In the present case, the contested trade mark was filed on 21/07/2017. Therefore, the opponent was required to prove that the trade marks on which the opposition is based had acquired a reputation in the European Union prior to that date. The evidence must also show that the reputation was acquired for the services for which the opponent has claimed reputation, namely:

Earlier Mark 1 ‘EASYJET’

Class 35: Advertising; business management; business administration; office functions; operation and supervision of loyalty and incentive schemes; advertising services provided via the Internet; production of television and radio advertisements; provision of business information; retail services connected with the sale of food and drink, preparations and substances for use in the care and appearance of the hair, scalp, lips, face, skin, teeth, nails and eyes, cosmetics, non-medicated toilet preparations, perfumes, fragrances, colognes and scents, soaps and cleaning preparations, shampoos, conditioners, moisturisers, tooth cleaning preparations', depilatory preparations, sun-screening and tanning preparations, anti-perspirants, deodorisers and deodorants, sunglasses, personal stereos, MP3 players, CD players, apparatus for playing music and video recordings, jewelry, stones, watches, clocks, books, magazines, newspapers, stationery, calendars, diaries, purses, umbrellas, parasols briefcases, purses, wallets, pouches and handbags, luggage, suitcases, travelling sets, sports bags, bike bags, backpacks, games, playing cards, gymnastic and sporting articles, gymnastic and sporting articles, scooters; marketing and publicity services; dissemination of advertising, marketing and publicity materials.

Class 39: Transport; packaging and storage of goods; travel arrangement; travel information; provision of car parking facilities; transportation of goods, passengers and travelers by air, land, sea and rail; airline and shipping services; airport check-in services; arranging of transportation of goods, passengers and travelers by land and sea; airline services; baggage handling services; cargo handling and freight services; arranging, operating and providing facilities for cruises, tours, excursions and vacations; chartering of aircraft; rental and hire of aircraft, vehicles and boats; chauffeur services; taxi services; bus services; coach services; rail services; airport transfer services; airport parking services; aircraft parking services; escorting of travelers; travel agency services; tourist office services; advisory and information services relating to the aforesaid services; information services relating to transportation services, travel information and travel booking services provided on-line from a computer database or the Internet.

Class 43: Services for providing food and drink; temporary accommodation; restaurant, bar and catering services; provision of holiday accommodation; booking and reservation services for restaurants and holiday accommodation; hotel services; hotel reservation services; hotel services for the provision of facilities for exhibitions and conferences.

Earlier Mark 2 ‘EASYGROUP’

Class 35: Advertising, marketing and publicity services; dissemination of advertising, marketing and publicity materials; business organisation, business administration and business management services, business information services, auctioneering services, office functions, promotional services; import-export agency services, business and management consultancy, assistance and advice; purchasing and demonstration of goods for others; retail services connected with the sale of food and drink, preparations and substances for use in the care and appearance of the hair, scalp, lips, face, skin, teeth, nails and eyes, cosmetics, non-medicated toilet preparations, perfumes, fragrances, colognes and scents, soaps and cleaning preparations, shampoos, conditioners, moisturisers, tooth cleaning preparations', depilatory preparations, sun-screening and tanning preparations, anti-perspirants, deodorisers and deodorants, sunglasses, personal stereos, MP3 players, CD players, apparatus for playing music and video recordings, jewelry, stones, watches, clocks, books, magazines, newspapers, stationery, calendars, diaries, purses, umbrellas, parasols briefcases, purses, wallets, pouches and handbags; luggage, suitcases, travelling sets, sports bags, bike bags, backpacks, games and playthings, playing cards, gymnastic and sporting articles, toys; gymnastic and sporting articles, model airplanes, scooters, teddy bears, balls; commercial administration of the licensing of the goods and services of others; advice relating to business management; advice relating to business organisation; business advice; business management advice.

Class 39: Transportation of goods, passengers and travellers by air; airline and shipping services; airport check-in services; arranging of transportation of goods, passengers and travellers by land and sea; airline services; bus transport services, car transport services, coach services, baggage handling services; cargo handling and freight services; arranging, operating and providing facilities for cruises, tours, excursions and vacations; chartering of aircraft; rental and hire of aircraft, vehicles and boats; aircraft parking services; aircraft fuelling services, travel reservation and travel booking services provided by means of the world wide web, information services concerning travel, including information services enabling customers to compare prices of different companies; travel agency and tourist office services; advisory and information services relating to the aforesaid services; information services relating to transportation services, including information services provided on-line from a computer database or the Internet.

Class 43: Provision of temporary accommodation; provision of food and drink; catering; hotel, restaurant, café and bar services; hotel management and reservation services; nursery, kindergarten and creche services; hotel services for the provision of facilities for exhibitions; providing facilities for exhibitions and conferences.

Earlier Mark 8 ‘EASYHOTEL’

Class 43: Services for providing food and drink; temporary accommodation; restaurant, bar and catering services; provision of holiday accommodation; booking and reservation services for restaurants and holiday accommodation; hotel services; hotel reservation services; hotel services for the provision of facilities for exhibitions and conferences.

The opposition is directed against the following goods:

Class 20: Furniture; Beds; Cupboards; Tables; Dressers [furniture]; Seats; Mattresses; Sofas; Racks [furniture]; Vitrines; Desks; Shoe cabinets; Coffee tables; Filing cabinets in the nature of furniture.

Class 24: Woven furnishing fabrics; Bed clothes and blankets; Bed blankets; Table linen.

In order to determine the marks’ level of reputation, all the relevant facts of the case must be taken into consideration, including, in particular, the market share held by the trade marks, the intensity, geographical extent and duration of their use, and the size of the investment made by the undertaking in promoting them.

On 11/05/2018 the opponent submitted the following evidence:

Exhibit 1:

A Witness Statement of 04/08/2017, signed by Sir Stelios Haji-Ioannou, the founder and director of easyGroup. In the Witness Statement, Mr Haji-Ioannou states the following:

- easyjet was the first sign of the EASY family of brands and was registered even before the establishment of the EasyJet airline company in 1995;

- the company easyGroup was incorporated in the year 2000 with the aim of establishing a group of companies which trade under the ‘easy’ brand, following the success of EasyJet which he had established;

- since the year 2000, easyGroup has secured about 1 000 trade mark registrations and 2500 domain names around the world, including ‘EASY’, ‘EASY.COM’, ‘EASYJET’, ‘easy4men’ and ‘EASYGYM;

- 70 million passengers were being flown by EasyJet every year (since 1995 until 31/01/2017) and in 2014 the total number of passengers flown across the easyJet network was 64,8 million and the airline operated 675 routes, 399 of which were to or from the United Kingdom. The opponent also provides a table containing the turnover figures for ‘easyJet’ and information about the www.easyjet.com website visitors and annual turnover;

- by 2000 easyJet has been listed as a business ‘Superbrand’ by Business Superbrands Council and the easyGroup has been mentioned in several magazines;

- there has been a significant press coverage and media attention for the brands EasyJet and easyGroup and also for other brands such as easyBus, easyProperty, easyCar, etc.

The Witness Statement finally also makes numerous references to the evidence (exhibits PG1-PG65), which was, however, not submitted by the opponent in the present proceedings.

Exhibit 2:

 An extract from the opponent’s website containing information about EasyJet presence in 31 countries, 132 airports and that it operates on 802 routes.

 Copies from EasyJet Annual Reports showing ‘Results for the year ending 30 September 2016’ of 15/11/2016 showing the total revenue for EasyJet (4,669 million Pounds), ‘Results for the year ending 30/09/2015’ of 17/11/2015 (revenue 4,686 million Pounds), ‘Results for the year ending 30/09/2014’ of 18/11/2014 (revenue 4,527 million Pounds), ‘Results for the year ending 30/09/2013’ of 18/11/2013 (revenue 4,258 million Pounds).

 www.scotsman.com: article of 16/05/2017, in which it is reported that ‘easyJet’ is seeking more pilots at its Edinburgh and Glasgow bases as part of ‘Scotland’s largest airline’s biggest recruitment drive to date’.

 www.eventmagazine.ca: article of 25/04/2017, which reports EasyJet’s intention to ‘bring an immersive theatre experience to London from 5-6 May’.

 www.telegraph.co.uk: article of 16/05/2017 reporting on EasyJet`s intention to ‘add more seats in locations its competitors are retrenching from’.

 www.independent.co.uk: article of 14/02/2017 reporting on the success of the founder of EasyJet, Mr. Sir Stelios Haji-Ioannou, who ‘created an airline that would grow to eclipse local rivals such as ……., and overtake …. in passenger numbers…’. The article also states that ‘on an average day in 2017, EasyJet carries more than 200,000 passengers across Europe’.

 www.worldtravelawards.com: article reporting that the company EasyJet received an award for ‘Europe’s Leading Low-Cost Airline’ in 2013.

 an extract from an unknown source from July 2017, mentioning the founder of the EasyJet company and its activities in Greece.

 www.telegraph.co.uk: article of 11/06/2016, mentioning budget airline easyJet and its plans to set up a separate European business in case Britain leaves the European Union.

 www.travel.aol.co.uk: article of 08/10/2016, mentioning EasyJet (British low-cost carrier) as ‘Europe’s best low-cost airline’ in a poll of 16,000 travellers (with more than six in ten UK passengers backing EasyJet, based on customer service and overall flying experience). The article also mentions that ‘online travel agent eDreams.co.uk polled travellers across ten countries (UK, Spain, Germany, Italy, France, Portugal, Sweden, Denmark, Finland and Norway) and found that in addition to being voted the UK’s number one low-cost airline, EasyJet was also the favoured no-frills airline across the continent, taking more than 22% of the votes across Europe.

 www.unicef.org.uk: article mentioning the ‘Change for Good’ partnership launched in 2012 between EasyJet, the UK biggest airline and Unicef. According to the article, EasyJet has raised 7 million Pounds to support Unicef vaccination programmes.

 www.carrentals.co.uk: article of 10/10/2016 reporting that ‘easyJet takes top spot in eDreams poll of best cost airlines’ (eDreams quizzed travellers on their preferred budget carrier). The article mentions that ‘more than a fifth of 16,000 travellers – 22% - named EasyJet as the favourite low-cost European airline’.

 www.campaignlive.co.uk: article of 06/06/2014 reporting that EasyJet won five prizes at 2014 Marketing Society Awards, among others the Grand Prix for its ‘Europe’s by easyJet’ campaign.

 www.theguardian.com: article of 17/11/2015 mentioning that EasyJet profits hit record for fifth consecutive year. It also mentions that EasyJet is the second biggest airline present in France.

 www.standard.co.uk: article of 30/06/2016 mentioning that EasyJet´s boss received an award for personality of the year and an article of 26/10/2016, mentioning airline company EasyJet and its plans to launch new routes from the UK airport Heathrow.

 www.buyingbusinesstravel.com: an article from August 2014, reporting about a 2014 Business Travel Awards event in which the company EasyJet won ‘Best Short-Haul Airline’ award.

 www.independent.co.uk: article of 17/07/2014, reporting that EasyJet is the second best low-cost airline for cheap flights according to Skytrax World Airline Awards which is based on feedback from travellers in over 160 cities, who review over 200 airlines in the world´s largest airline passenger satisfaction survey. According to the article, EasyJet operates over 200 aircraft on 600 domestic and international routes, and it is the second biggest low-cost airline in Europe.

 www.statistics.com: an extract showing the number of passengers uplifted by Easyjet Airline Company Ltd. in the United Kingdom from 2008 to 2015.

 www.fundraising.com: an extract mentioning that EasyJet passengers were first to see UNICEF’s virtual reality film (which was a result of a partnership between EasyJet and UNICEF).

 www.independent.co.uk: an article of 04/11/2015, mentioning that several commissioners called for patrol cars to carry advertising from brands such as EasyJet as a way of alleviating the impact of the budget cuts.

 www.ft.com: an article of 24/01/2017, reporting on EasyJet´s future plans to expand its capacity by 9 % over the financial year up to September 30.

 An extract from Wikipedia, providing information about the EasyJet company (its history, business strategy, destinations, services, sponsorship, etc.).

 An extract from the opponent’s website, showing the Route Map with EasyJet departure airports.

Exhibit 3: Documents showing final financial results for the year ended 30/09/2016 of 29/11/2016, the year ended 30/09/2015 of 09/12/2015 and the year ended 30/09/2014 of 09/12/2014 for easyHotel plc, the owner of super budget branded hotels.

Exhibit 4: extracts from different websites:

 www.mirror.co.uk, of 23/09/2015, reporting that easyProperty online estate agency established by the budget airline company EasyJet is launching its own online business serving property-hunters. The new venture easyProperty is online estate agency business.

 www.news.sky.com of 07/12/2015, reporting that Toscafound is investing into easyProperty in return for a stake of 15% in easyProperty.

 www.telegraph.co.uk of 08/12/2015, reporting that easyProperty has raised 25 million Pounds to take on estate agent rivals.

 www.cityam.com containing an interview with Sir Stelios Haji-Ioannou, who created the airline company EasyJet, reporting that EasyGroup is extending its brand into other sectors.

 www.standard.co.uk of 08/03/2015 reporting on easyProperty plans.

Exhibit 5: An extract from www.mirror.co.uk, reporting on the most powerful people in the British food and drink industry. The article mentions, among others, in 99^th place, Sir Stelios Haji-Ioannou, who established easyFoodstore with a range of food and drinks.

Exhibit 6: A document showing a list of all easyCoffee shops in central London and their locations.

Exhibit 7: Pictures of an easyKiosk flyer with prices for several different drinks.

Exhibit 8:

 www.businesscloud.co.uk: an article mentioning easyCar club that was trialled in London in 2013 and went national in 2014. According to the article, the platform has more than 100,000 members and more than 10,000 cars.

 www.journalism.co.uk: press release of 30/08/2017, reporting that easyCar is one of the top 20 cheapest car hire destinations in Europe (with locations in Alicante, Tenerife, Malaga, Birmingham and Manchester rounding out the top five).

 www.businessinsider.com: an article of 13/06/2017 reporting that easyGroup is looking to take BlaBla Car with its new ridesharing service.

 www.managementtoday.co.uk: an article of 16/08/2014 providing the news that ‘the man behind the distinctive shade of orange Sir Stelios Haji-Ioannou is planning to establish peer to peer rental platform EasyCar Club’.

Exhibit 9:

- www.eliberico.com: article of 28/10/2015 in Spanish, concerning the opponent's earlier trade mark easyBus and the services provided under this mark;

- https://travel.fanpage.it: article of 28/09/2015 in Italian mentioning easyBus services;

- www.latribune.fr: an article of 28/09/2015 in French, mentioning the earlier mark easyBus and the services provided under this trade mark;

- www.shropshirestar.com: article of 16/01/2017, reporting on easyBus franchise launched in the UK;

- www.telegraph.co.uk: an article of 17/07/2013, reporting on easyBus service that operates from London Earl’s Court/West Brompton to Gatwick;

- www.turystyka.wp.pl: an article of 31/10/2013 in Polish;

- www.leparisien.fr: article in French concerning the earlier mark easyBus.

Exhibit 10: A Witness Statement of 04/04/2017 of Mr Cristopher Griffin, Executive of the Museum of Brands, attesting that the ‘easy’ brand is famous and that it has, since the start, been more expansive than ‘easyJet’ alone and covers a diverse range of products and services

In relation to the witness statements (Exhibits 1 and 10), it should be noted that the probative value of statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. This is because the perception of the party involved in the dispute may be more or less affected by its personal interests in the matter. However, this does not mean that such statements do not have any probative value at all. The final outcome depends on the overall assessment of the evidence in the particular case. This is because, in general, further evidence is necessary to establish reputation, since such statements have to be considered as having less probative value than evidence originating from independent sources. Bearing in mind the foregoing, it is necessary to assess the remaining evidence to see whether or not the contents of the witness statements are supported by the other items of evidence.

The evidence shows that the commercial activity of the opponent involves providing budget airline services under the trade mark ‘EASYJET’ and for a substantial period of time (since the year 2000 and even before). The evidence shows that the relevant public was exposed to the trade mark ‘EASYJET’ extensively and, although not particularly exhaustive, it is clear from the evidence as a whole that the trade mark ‘EASYJET’ has been subject to long-standing and intensive use and is generally known in the relevant market, where it enjoys a consolidated position among the leading brands. This is corroborated by the evidence attached to Exhibit 2 in which ‘EASYJET’ was mentioned as the ‘biggest airline present in France’ (www.guardian.com) and ‘second best-low cost airline for cheap flights’ (www.independent.co.uk) or ‘easyJet takes top spot in eDreams poll of best cost airlines’ (www.carrentals.co.uk). Also the remaining press releases and publications referring to the earlier mark ‘EASYJET’ give some indirect information on the opponent’s investments and its promotional, communication and marketing strategies. There is also a reference to the award Europe’s Leading Low-Cost Airline in 2013 that ‘EASYJET’ has received (i.e. article from www.worldtravelawards.com).

All these facts and evidence allow the Opposition Division to conclude that the earlier trade mark ‘EASYJET’ has been subject to long-standing and intensive use, at least in the United Kingdom and that it was generally known in the relevant market sector, and enjoyed a consolidated position among the leading airlines on the filing date of the EUTM application. Although the evidence does not refer to all the countries of the European Union, the European Court of Justice has clarified that for an earlier European Union trade mark, reputation throughout the territory of a single Member State may suffice (06/10/2009, C-301/07 ‘PAGO’, EU:C:2009:611, § 29 and 30). Therefore, the Opposition Division acknowledges that reputation proven in the United Kingdom is sufficient also for concluding that the earlier trade mark has a reputation in the European Union.

Under these circumstances, the Opposition Division finds that, taken as a whole, the evidence indicates that the earlier trade mark ‘EASYJET’ enjoys a certain degree of recognition among the relevant public, which leads to the conclusion that the earlier trade mark enjoys some degree of reputation. Whether the degree of recognition is sufficient for Article 8(5) EUTMR to be applicable depends on other factors relevant under Article 8(5) EUTMR such as, for example, the degree of similarity between the signs, the inherent characteristics of the earlier trade mark, the type of goods/services in question, the relevant consumers, etc.

However, the evidence does not succeed in establishing that the trade mark has a reputation for all the services on which the opposition is based and for which reputation was claimed. The evidence only refers to transportation of passengers and travelers by air; airline services in Class 39 whereas there is not sufficient reference to the remaining services for which the opponent has claimed reputation. Consequently, the opponent has demonstrated that its trade mark ‘EASYJET’ enjoyed reputation in the European Union, on the filing date of the EUTM application, in relation to transportation of passengers and travelers by air; airline services in Class 39.

The evidence does not succeed in establishing that the Earlier Mark 2 ‘EASYGROUP’ and the Earlier Mark 3 ‘EASYHOTEL’ have acquired a reputation in the relevant territorry with regard to the services for which the opponent claims reputation. The articles taken from different websites do demonstrate that the earlier mark ‘EASYGROUP’ is present in the market for example but they do not indicate the degree of recognition by the relevant public, if the mark is recognised by the relevant public or what is the position of the mark on the market.

On the basis of the documents submitted, the Opposition Division concludes that the opponent failed to prove that the Earlier Marks 2 ‘EASYGROUP’ and 3 ‘EASYHOTEL’ are reputed in the relevant territory with regard to the services for which the opponent claims reputation.

As seen above, it is a requirement for the opposition to be successful under Article 8(5) EUTMR that the earlier trade mark has a reputation. Since it has not been established that Earlier Marks 2 and 3 have a reputation, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, and the opposition must be rejected insofar as it is based on these earlier marks.

The examination of the present opposition will continue on the grounds of Article 8(5) EUTMR only on the basis of the Earlier Mark 1.

b) The signs

EASYJET	EASY MEUBLES
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).

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

The earlier mark is the word mark ‘EASYJET’. Even though the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, when perceiving a word sign, they will break it down into elements which, for them, suggest a specific meaning or which resemble words known to them (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 12/11/2008, T‑281/07, Ecoblue, EU:T:2008:489, § 30). Therefore, it is reasonable to assume that, even if the earlier mark as a whole does not have any meaning for the public in the relevant territory, the element ‘JET’, included in the earlier mark will be perceived with a meaning ‘a jet-propelled aircraft’ by the part of the relevant public (i.e. English and French speaking part of the public). For the relevant services (i.e. services in Class 39), this element is considered to be non-distinctive while for the remaining part of the public relation to which it has no meaning, it is considered to be distinctive to an average degree.

The word ‘EASY’ included in the earlier mark is a basic English word which means ‘not requiring much labour or effort; not difficult; simple’ and is likely to be understood by the relevant public of the services concerned in the whole territory of the European Union. This finding has been confirmed by the Boards of Appeal in case 21/02/2017, R 2048/2015-2, § 59 and § 60. As the word ‘EASY’ may laud the services concerned (13/05/2015, T-608/13, easy Air-airtours, EU:T:2015:282, § 38 and 57), it is considered to be non-distinctive.

The contested sign is a word mark composed of the verbal elements ‘EASY MEUBLES’.

The word ‘EASY’ has the meaning explained above and the considerations mentioned above on the distinctiveness of the word ‘EASY’ are equally applicable here. Therefore, the element ‘EASY’ lacks any ability to function as a badge of origin for the relevant goods. The word ‘Meubles’ included in the contested mark means ‘furniture’ in French. It is meaningless in other languages. Bearing in mind that the relevant services, it is considered that this element is non-distinctive for some of the goods concerned and for at least the French-speaking part of the public. In relation to other part of the goods, in relation to which it has no meaning and for the remaining consumers, it is considered to be distinctive to an average degree.

The marks are word mark and obviously have no elements that could be considered more dominant than other elements.

Visually and aurally, the signs coincide in the element ‘easy’. However, they differ in the word ‘jet’ of the earlier mark and the word ‘meubles’ of the contested mark. Given that the common element ‘easy’ is non-distinctive, the relevant public will be inclined to focus on the remaining verbal elements of the signs. Although in the present case, at least for the part of the public, the differing elements ‘jet’ and ‘meubles’ are not distinctive, they still contribute to differentiating the signs. Consequently, the signs are visually and aurally similar to a low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks.

Since the common element ‘easy’ is non-distinctive, the conceptual similarity created by this element cannot be given too much weight. The semantic differences (where applicable) of the other verbal elements ‘JET’ and ‘meubles’ also play a differentiating role. Therefore, the signs are conceptually similar to a very low degree.

Taking into account the abovementioned visual, aural and conceptual coincidences, the signs under comparison are considered similar for the purposes of Article 8(5) EUTMR.

c) The ‘link’ between the signs

As seen above, the earlier mark ‘EASYJET’ is reputed and the signs are similar to some extent. In order to establish the existence of a risk of injury, it is necessary to demonstrate that, given all the relevant factors, the relevant public will establish a link (or association) between the signs. The necessity of such a ‘link’ between the conflicting marks in consumers’ minds is not explicitly mentioned in Article 8(5) EUTMR but has been confirmed in the judgments of 23/10/2003, C‑408/01, Adidas, EU:C:2003:582, § 29 and 31, and of 27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 66. It is not an additional requirement but merely reflects the need to determine whether the association that the public might establish between the signs is such that either detriment or unfair advantage is likely to occur after all of the factors that are relevant to the particular case have been assessed.

Possible relevant factors for the examination of a ‘link’ include (27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 42):

 the degree of similarity between the signs;

 the nature of the goods and services, including the degree of similarity or dissimilarity between those goods or services, and the relevant public;

 the strength of the earlier mark’s reputation;

 the degree of the earlier mark’s distinctive character, whether inherent or acquired through use;

 the existence of likelihood of confusion on the part of the public.

This list is not exhaustive and other criteria may be relevant depending on the particular circumstances. Moreover, the existence of a ‘link’ may be established on the basis of only some of these criteria.

In the present case, the signs have a certain degree of visual, aural and conceptual similarity as they share the element ‘EASY’ placed at the beginning of both marks. However, this does not mean that the relevant public is likely to establish a link between them. When consideration is given to the goods and services in question (namely the opponent’s transportation of passengers and travelers by air; airline services in Class 39 on the one hand and the contested goods in Classes 20 and 24, on the other hand), it is clear that the similarities between the signs in dispute relate to an element which is non-distinctive. As it has been shown above, the common word ‘EASY’ will be understood throughout the relevant territory as referring to something ‘simple’ and may laud all the goods and services concerned. It will therefore be perceived as non-distinctive element (13/05/2015, T-608/13, easy Air-airtours, EU:T:2015:282, § 38 and 57) which cannot identify the commercial origin of the goods and services at issue but, instead, it will indicate that the goods and services offered are easy to use or easy to access. Furthermore, the evidence of reputation submitted by the opponent does not show that the word ‘EASY’ on its own enjoys reputation in the perception of the relevant public.

Therefore, in view of the non-distinctive character of the element ‘EASY’, the similarities between the contested sign ‘Easy Meubles’ and the earlier mark are unlikely to bring the earlier trade mark to the mind of the average consumer. The element ‘EASY’ indicates a characteristic shared by a wide range of goods and services which means that the consumer is more likely to associate it with the specific feature of the goods and services that it describes rather than with another mark (30/04/2009, C-136/08 P, ‘Camelo’). Moreover, the signs under comparison contain additional elements ‘JET’ and ‘Meubles’ which account for visual, aural and, for part of the public, also for conceptual differences.

Taking into account and weighing up all the relevant factors of the present case, the Opposition Division concludes that it is unlikely that the relevant public will make a mental connection between the signs in dispute, that is to say establish a ‘link’ between them. Therefore, the opposition is not well founded under Article 8(5) EUTMR and must be rejected.

The Opposition Division continues with the examination of the opposition under Article 8(1)(b) EUTMR.

2. 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 Earlier Mark 1 ‘EASYJET’.

a) The goods and services

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

Class 18: Leather and imitations of leather; animal skins, hides; trunks and travelling bags; handbags, rucksacks, purses; umbrellas, parasols and walking sticks; whips, harness and saddlery; clothing for animals.

Class 35: Advertising; business management; business administration; office functions; operation and supervision of loyalty and incentive schemes; advertising services provided via the Internet; production of television and radio advertisements; provision of business information; retail services connected with the sale of food and drink, preparations and substances for use in the care and appearance of the hair, scalp, lips, face, skin, teeth, nails and eyes, cosmetics, non-medicated toilet preparations, perfumes, fragrances, colognes and scents, soaps and cleaning preparations, shampoos, conditioners, moisturisers, tooth cleaning preparations', depilatory preparations, sun-screening and tanning preparations, anti-perspirants, deodorisers and deodorants, sunglasses, personal stereos, MP3 players, CD players, apparatus for playing music and video recordings, jewelry, stones, watches, clocks, books, magazines, newspapers, stationery, calendars, diaries, purses, umbrellas, parasols briefcases, purses, wallets, pouches and handbags, luggage, suitcases, travelling sets, sports bags, bike bags, backpacks, games, playing cards, gymnastic and sporting articles, gymnastic and sporting articles, scooters; marketing and publicity services; dissemination of advertising, marketing and publicity materials.

Class 39: Transport; packaging and storage of goods; travel arrangement; travel information; provision of car parking facilities; transportation of goods, passengers and travelers by air, land, sea and rail; airline and shipping services; airport check-in services; arranging of transportation of goods, passengers and travelers by land and sea; airline services; baggage handling services; cargo handling and freight services; arranging, operating and providing facilities for cruises, tours, excursions and vacations; chartering of aircraft; rental and hire of aircraft, vehicles and boats; chauffeur services; taxi services; bus services; coach services; rail services; airport transfer services; airport parking services; aircraft parking services; escorting of travelers; travel agency services; tourist office services; advisory and information services relating to the aforesaid services; information services relating to transportation services, travel information and travel booking services provided on-line from a computer database or the Internet.

Class 43: Services for providing food and drink; temporary accommodation; restaurant, bar and catering services; provision of holiday accommodation; booking and reservation services for restaurants and holiday accommodation; hotel services; hotel reservation services; hotel services for the provision of facilities for exhibitions and conferences.

The contested goods are the following:

Class 20: Furniture; Beds; Cupboards; Tables; Dressers [furniture]; Seats; Mattresses; Sofas; Racks [furniture]; Vitrines; Desks; Shoe cabinets; Coffee tables; Filing cabinets in the nature of furniture.

Class 24: Woven furnishing fabrics; Bed clothes and blankets; Bed blankets; Table linen.

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 opponent’s goods and services share no similarity whatsoever with the contested goods. They differ in their distribution channels and providers and are neither complementary nor in competition. They also differ in their nature and purpose.

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 and services are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

This finding would still be valid even if the Earlier Mark 1 was to be considered as enjoying a high degree of distinctiveness. Given that the dissimilarity of the goods and services cannot be overcome by the highly distinctive character of the earlier trade mark, the evidence submitted by the opponent in this respect does not alter the outcome reached above.

The opponent has also based its opposition on the following earlier rights:

- European Union trade mark registration No 10 583 111 for the word mark ‘EASYGROUP’ (‘Earlier Mark 2’);

- European Union trade mark registration No 10 735 496 for the word mark ‘EASYHOTEL’ (‘Earlier Mark 3’);

- European Union trade mark registration No 10 735 553 for the word mark ‘EASYCAR’ (‘Earlier Mark 4’);

- European Union trade mark registration No 10 735 561 for the word mark ‘EASYBUS’ (‘Earlier Mark 5’);

These earlier marks cover goods and services in Classes 18, 35, 39 and 43, which were already found to be dissimilar to the contested goods and services. Therefore, the same findings apply to these earlier marks as to the one compared above.

The opponent has also based its opposition on the following earlier right:

European Union trade mark registration No 11 624 376 for the figurative mark (‘Earlier Mark 6’).

These earlier mark covers services in Classes 35, 36 and 43. Although some of the services in Class 43 include services such as rental of office furniture, these are still considered to be dissimilar to the contested goods. They are offered by different companies operating in different market sectors and satisfy different consumers’ needs. Furthermore, they are normally offered through different distribution channels and target different consumers. It follows that they are dissimilar overall. Therefore, the same findings apply to these earlier marks as to the one compared above.

It remains necessary to consider the opponent’s argument that the earlier trade marks, all characterised by the presence of the same word component ‘EASY’, constitute a ‘family of marks’ or ‘marks in a series’. Since the goods and services at hand are dissimilar the outcome cannot be different with respect to goods and services for which the opposition has already been rejected. Even assuming that the opponent managed to prove that it marks are capable of constituting a ‘series’, the outcome of no likelihood of confusion remains the same. Therefore, it is not necessary to examine the evidence of family of marks.

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

Oana-Alina STURZA

Janja FELC

Keeva DOHERTY

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.