OPPOSITION No B 3 002 675

Albiral Display Solutions, S.L., C. Fàtima, 25, 08512 Sant Hipòlit de Voltregà, Spain (opponent), represented by Ponti & Partners, S.L.P, C. Consell de Cent, 322, 08007 Barcelona, Spain (professional representative)

a g a i n s t

Antretter & Huber GmbH, Irsham 55, 94081 Fürstenzell, Germany (applicant), represented by Lichtnecker & Lichtnecker, Im Schlosspark Gern 2, 84307 Eggenfelden, Germany (professional representative).

On 21/08/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 002 675 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 and services of European Union trade mark application No 17 093 601 for the figurative mark . The opposition is based on European Union trade mark registration No 7 254 733 for the figurative mark . The opponent invoked Article 8(1)(b) EUTMR.

PROOF OF USE

Proof of use of the earlier mark was requested by the applicant. However, at this point, the Opposition Division does not consider it appropriate to undertake an assessment of the evidence of use submitted. The examination of the opposition will proceed as if genuine use of the earlier mark had been proven for all the goods invoked, which is the best light in which the opponent’s case can be considered.

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 and for which genuine use has been assumed are the following:

Class 9: Monitors and projector, television and video screens; electronic apparatus for reproduction of sound or images intended to provide all kinds of information; data-processing apparatus; telecommunications apparatus for the creation, dissemination and transmission of messages.

Following a limitation of the contested application, the contested goods and services are the following:

Class 9: Radios; radio tuners; DAB radios; vehicle radios; audio apparatus; audio receivers; wearable audio equipment; parts and fittings for audio apparatus; antennas and aerials as components; component parts for aerials; antennas; aerial amplifiers; repeaters; digital amplifiers; loudspeakers; speaker enclosures; accessories for loudspeakers; audio speaker cables; smart cards [integrated circuit cards]; flexible circuit boards; audio circuit boards; electronic circuit boards; circuit boards provided with integrated circuits.

Class 35: Wholesaling and retailing, including via the internet, in the fields of radios, radio receivers, DAB radios, vehicle radios, audio apparatus, audio receivers, portable audio apparatus, parts and fittings for audio apparatus, aerials and aerial installations in the form of components, aerial components, aerials, aerial amplifiers, amplifiers, digital amplifiers, loudspeakers, cabinets for loudspeakers, accessories for loudspeakers, loudspeaker cables, printed circuit boards, flexible printed circuit boards; wholesaling and retailing, including via the internet, in the fields of audio printed circuit boards, electronic printed circuit boards, printed circuit boards with integrated circuits; arranging of business and commercial contacts, including via the internet, in the fields of radios, radio receivers, DAB radios, vehicle radios, audio apparatus, audio receivers, portable audio apparatus, parts and fittings for audio apparatus, aerials and aerial installations in the form of components; arranging of business and commercial contacts, including via the internet, in the fields of aerial components, aerials, aerial amplifiers, amplifiers, digital amplifiers, loudspeakers, cabinets for loudspeakers, accessories for loudspeakers, loudspeaker cables, printed circuit boards, flexible printed circuit boards, audio printed circuit boards, electronic printed circuit boards, printed circuit boards with integrated circuits.

Class 40: Custom manufacture and assembly services; treatment and conversion of materials in relation to electronic components, metal goods, semiconductor components, apparatus and circuits, assemblies and plastic goods; customised manufacture of electronic components; custom manufacture of metal hardware; custom manufacture of semiconductor components, devices and circuits; specialist manufacture of aerials for others; assembly of products for others.

Class 42: Research and development of new products; development of new technology for others; design and development of industrial products; design and development of radio and audio apparatus; design and development of aerials; pattern design; new product design; design of manufacturing methods; design of instruments.

Some of the contested goods are identical to goods on which the opposition is based and for which genuine use has been assumed and some of the contested services are at least similar to a low degree to the opponent’s goods. However, for reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above since the identity or similarity between the goods and services cannot change the outcome of the present proceedings for the reasons set out below.

b) The signs

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 earlier mark is a figurative mark composed of the verbal element ‘ARTHUR HOLM’, written in black upper-case letters, above which there is a set of red lines resembling the letters ‘AH’. The verbal element ‘ARTHUR HOLM’ will be perceived by the relevant public as a combination of a name and surname. The letters ‘AH’ clearly refer to the initials of the verbal element ‘ARTHUR HOLM’. Since none of the elements of the earlier mark has any relation to the relevant goods, they are distinctive.

Contrary to the opponent’s opinion, the earlier mark has no element that is more dominant (eye-catching) than other elements. Despite being in the upper part of the mark, the stylised letters ‘AH’ are only slightly larger than the verbal element ‘ARTHUR HOLM’, which is longer and sufficiently large to be clearly visible. Therefore, both elements are equally eye-catching.

Moreover, since the letters ‘AH’ will be perceived as the initials of the verbal element ‘ARTHUR HOLM’, consumers will pay more attention to the verbal element ‘ARTHUR HOLM’ and not to the letters ‘AH’, even though they are depicted above the earlier mark’s verbal element.

The contested sign is a figurative mark composed of a set of vertical, horizontal and slanting bold black lines.

Contrary to the opponent’s opinion, the Opposition Division deems that it is unlikely that the relevant public will see the letter ‘H’ in the contested sign because, despite the presence of two parallel vertical lines and a broken horizontal line, the overall structure of the sign does not resemble the structure of the letter ‘H’ at all. The combination of conjoined lines in the contested sign is likely to be perceived by a substantial part of the relevant public merely as an abstract depiction of lines but may conceivably be perceived, at least by a part of the relevant public, as containing a stylised letter ‘A’ or two letters ‘A’, the first letter being inverted and a mirror image of the second letter ‘A’.

Considering the various scenarios laid out regarding the different possible perceptions of the contested sign, the Opposition Division finds it appropriate to first examine the opposition in relation to the part of the public that may perceive the combination of conjoined lines of the contested sign as a stylised letter ‘A’ or two letters ‘A’, as explained above (hereinafter referred to as the letters ‘AA’), as they are plausible scenarios and the most favourable scenarios for the opponent’s case.

Since the letter ‘A’ and the letters ‘AA’ have no particular meaning in relation to the contested goods and services, they are considered distinctive.

Visually, the signs only coincide in that they both include the letter ‘A’, as the first letter of the element ‘AH’ in the earlier mark and as the letter ‘A’ or the letters ‘AA’ in the contested sign depending on how it is perceived by the part of the public under analysis.

However, there are significant visual differences in the graphical structure and colour of the set of red lines resembling the letters ‘AH’ in the earlier mark and the set of bold black lines resembling the letter ‘A’ or the letters ‘AA’ in the contested sign. The earlier mark is composed of two central crossing lines (i.e. vertical and horizontal) and of a slanted side line and a vertical side line, giving the impression that the letters ‘A’ and ‘H’ share their right and left stems, respectively. However, the contested sign is composed of two parallel vertical lines joined by a slanting line between them and the two broken horizontal lines extending from the two parallel lines. Moreover, the signs differ in the letter ‘H’ and in the distinctive and co-dominant verbal element ‘ARTHUR HOLM’ of the earlier mark, which have no counterparts in the contested sign. Furthermore, as explained above, consumers will primarily focus their attention on the verbal element ‘ARTHUR HOLM’ of the earlier mark.

As seen above, the signs only coincide in the letter ‘A’, which is an irrelevant element considering that they differ in all the other elements mentioned above, which are sufficient to create completely different visual overall impressions. Therefore, the signs are visually dissimilar.

Aurally, the letters ‘AH’ of the earlier mark are unlikely to be pronounced by the relevant public as they will be perceived as the initials of the name and surname, ‘ARTHUR HOLM’. However, even in the case these letters are pronounced, the signs phonetically coincide only in the sound of the letter ‘A*’ and would still differ in the sounds of the letter ‘*H’ and the verbal element ‘ARTHUR HOLM’ of the earlier mark.

Therefore, regardless of whether the contested sign is pronounced as the letter ‘A’ or the letters ‘A-A’ and even if the initial letters ‘AH’ of the earlier mark are pronounced, considering the difference in the signs’ lengths and the fact that the signs coincide in the sound of one single letter is irrelevant, the signs are considered aurally dissimilar.

Conceptually, since the earlier mark will be associated with a name and surname, irrespective of whether the contested sign is perceived as the letter ‘A’ or the letters ‘AA’ and whether or not it conveys any concept to consumers, the signs are not conceptually similar.

In its arguments of 27/08/2018 and 27/05/2019, the opponent referred to the previous cases of v (21/12/2017, R 1443/2017‑5, R.B. / RB et al.) and v (18/08/2006, B 659 047). Even though previous cases are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case. In these cases, the two slightly stylised letters of the contested signs (i.e. and ) clearly reproduced the dominant verbal element of the respective earlier marks ( and ). However, in the present case, as outlined above, the contested sign is highly stylised. Moreover, in the case where it is perceived as the letter ‘A’ or the letters ‘AA’, it does not share any relevant visual and aural similarity with the earlier mark composed of the co-dominant elements ‘AH ARTHUR HOLM’. Therefore, these cases are not comparable and the opponent’s arguments are set aside as unfounded.

Since visually and aurally the signs merely coincide in irrelevant elements and are not conceptually similar, they are deemed dissimilar.

For the sake of completeness, there is no need to further examine the signs for the part of the public who is likely to perceive the combination of lines in the contested sign as an abstract depiction, as the outcome would still be the same as in the present decision. If the signs are dissimilar for those consumers who may perceive the letter ‘A’ or the letters ‘AA’ in the contested sign, a fortiori they are dissimilar for those consumers who perceive only an abstract depiction of lines, since the signs will be even further apart for this part of the public.

c) Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the signs is a condition for a finding of likelihood of confusion. Since the signs are dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

Given that the opposition is not well founded under Article 8(1)(b) EUTMR, it is unnecessary to examine the evidence of use filed by the opponent.

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

Sam GYLLING

Angela DI BLASIO

Ali KUÇUKŞAHİN

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.