OPPOSITION No B 3 004 283

Jöllenbeck GmbH, Kreuzberg 2, 27404 Weertzen, Germany (opponent), represented by Nachtwey IP Rechtsanwälte, Buschhöhe 10, 28357 Bremen (professional representative)

a g a i n s t

Shenzhen ZhiYuanTongTai Technology Co. Ltd., Building C4, XinHeXinXing Industry Zone 4, Fuyong town, Bao’an district, Shenzhen, People’s Republic of China (applicant), represented by Al & Partners S.R.L., Via C. Colombo ang. Via Appiani (Corte del Cotone), 20831 Seregno (MB), Italy (professional representative).

On 26/10/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 004 283 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 17 236 019 ‘SPORTLINK’. The opposition is based, inter alia, on European Union trade mark registration No 3 668 449 ‘SPEED LINK’. 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.

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 European Union trade mark registration No 3 668 449 ‘SPEED LINK’.

1. The goods

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

Class 9: Mouse mats, headphones, microphones, microphone-headphones, active loudspeakers; goods of leather and plastic (semi-finished goods), namely protective bags, carrying bags and belt bags, protective sleeves and cases, all adapted for holding and storing data carriers, personal computers, electronic apparatus, electronic organisers, very small databases, electronic games and multimedia apparatus.

The contested goods are the following:

Class 9: Computer peripheral devices; sleeves for laptops; covers for smartphones; USB flash drives; smartglasses; smartwatches; covers for tablet computers; scales; wearable activity trackers; protective films adapted for smartphones; monitoring apparatus, electric; headphones; cabinets for loudspeakers; portable media players; virtual reality headsets; selfie sticks [hand-held monopods]; plugs, sockets and other contacts [electric connections]; batteries, electric; chargers for electric batteries; solar batteries.

Some of the contested goods are identical or similar to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 in question.

In the present case, the goods assumed to be identical are directed at the public at large, whose degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.

3. The signs

SPEED LINK	SPORTLINK
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.

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. Consequently, since both signs have a meaning in English and some of the elements could be considered descriptive or allusive in relation to the relevant goods, the Opposition Division finds it appropriate to focus the comparison on the non-English-speaking part of the public, for which most of the elements will be meaningless, this being the best light in which the opponent’s case can be examined.

The earlier mark is a word mark formed of the verbal elements ‘SPEED’ and LINK’, which will be perceived as meaningless by the relevant public.

Although the contested sign is composed of one verbal element, the relevant consumers, when perceiving a verbal sign, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58).

The first part of the contested sign, ‘SPORT’, is a basic English word that will be understood by the average consumer in all of the relevant territories because it is found in identical or similar terms in the relevant languages (31/01/2013, T‑54/12, Sport, EU:T:2013:50, § 26). Consumers will understand it as ‘An activity involving physical exertion and skill in which an individual or team competes against another or others for entertainment’ (information extracted from Oxford Dictionaries on 17/10/2018 at https://en.oxforddictionaries.com/definition/us/sport). This word has no immediate connection with most of the relevant goods and is, therefore, distinctive (although it is considered allusive in relation to certain goods such as smartphones and wearable activity trackers, which can be used during physical exercise).

The second element of the contested sign, ‘LINK’ — which is also present in the earlier mark — is an English word and, as mentioned above, will not be understood by the relevant public.

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. This means that the public will pay special attention to the first parts of the signs, ‘SPEED’ in the earlier mark — which is meaningless for the relevant public — and ‘SPORT’ in the contested sign, which will be remembered not only because it occupies the first part of the sign but also because it will be understood.

Furthermore, although the signs coincide in the sequence of letters ‘LINK’ and have the letters ‘SP’ in common, the earlier trade mark is written as two words and the contested sign as only one, which will further contribute to differentiating the signs; as a result, they are visually and aurally similar only to a low degree.

Conceptually, although the public in the relevant territory will perceive the element ‘SPORT’ of the contested sign as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

As the signs have been found similar (albeit to a low degree) 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. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

In the present case, the goods assumed to be identical target the public at large; the public’s degree of attention varies from average to high. The earlier mark has an average degree of distinctiveness. The signs are visually and aurally similar to a low degree, and conceptually they are not similar.

Although the signs coincide in the element ‘LINK’, there is no likelihood of confusion for the non-English-speaking part of the public, since this coinciding element is placed at the ends of the signs, which are secondary in the overall impressions conveyed by the signs. Moreover, the beginnings of the signs comprise additional differing elements, which are distinctive in relation to most of the goods. In relation to the limited number of goods for which the element ‘sport’ is allusive, it must be remembered that, in any case, this word would not go unnoticed by the public in the overall impression conveyed by the contested sign.

The absence of likelihood of confusion is even more pronounced in the case of the English-speaking part of the public, as these consumers will perceive not only the visual and aural differences between the signs, but also the differences in the meanings of ‘speed’ and ‘sport’. Moreover, the coinciding word ‘LINK’ will be perceived as meaning ‘a code or instruction which connects one part of a program or an element in a list to another’, and will therefore be non-distinctive for the computing-related goods, or as ‘Something that enables communication between people’, and will therefore be non-distinctive for all the goods that are used for or in relation to ‘communication’ (information extracted from Oxford English Dictionary on 17/10/2018 at https://en.oxforddictionaries.com/definition/link).

For all the reasons given above, the opposition is not well founded under Article 8(1)(b) EUTMR.

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

European Union trade mark registration No 14 091 292 for the figurative mark .

Since this mark is even more dissimilar than the mark compared above, given its figurative elements, the outcome cannot be different with respect to goods for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods.

Therefore, 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

María Belén IBARRA DE DIEGO

Paloma PERTUSA MARTÍNEZ

Birgit FILTENBORG

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.