OPPOSITION No B 3 027 037

Kin Cosmetics, S.A., Polígono Industrial Bujonis, par. 8 y 9, 17220 Sant Feliu de Guixols (Gerona), Spain (opponent), represented by Herrero & Asociados, Cedaceros, 1, 28014 Madrid, Spain (professional representative)

a g a i n s t

Kinaesthetics-movement-learning-health, Sonnenweg 3, 72181 Starzach, Germany (applicant), represented by Christoph Najberg, Degnerstraße 9, 13053 Berlin, Germany (professional representative).

On 27/02/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 027 037 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against part of the goods and services of European Union trade mark application No 17 264 921 for the word mark ‘QUINT’, namely against all the goods in Class 3. The opposition is based on International trade mark registration No 1 039 237 designating the European Union and Spanish trade mark registrations No 2 889 463 and No 141 446, all for the word mark ‘KIN’. 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.

1. The goods and services

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

International trade mark registration No 1 039 237 designating the European Union (hereinafter EM1)

Class 3: Perfumery; fragrances, perfumes, toilet water, eau de Cologne, colognes and aftershave preparations; cosmetics; toiletries; hair tints and bleaches, hair lotions, hair lacquers and fixing preparations, hair waving and curling preparations, hair masks and creams (non-therapeutic), shampoos; preparations for skin care; skin and body creams; essential oils; articles for the bath/body; hand soaps and body soap; beauty preparations.

Class 35: Retail and/or wholesale sale services, in stores and via global computer networks, of all kinds of perfumery articles, fragrances, perfumes, toilet water, eau de Cologne, colognes and aftershave preparations, cosmetics, toiletries, hair tints and bleaches, hair lotions, hair lacquers and fixing preparations, hair waving and curling preparations, hair masks and creams (non-therapeutic), shampoos, preparations for skin care, skin and body creams, essential oils, articles for the bath/body, hand soaps and body soap, articles for the care of the body and physical beauty; import and export services; business management.

Spanish trade mark registration No 2 889 463 (hereinafter EM2)

Class 3: Perfumery; fragrances, perfumes, toilet water, eau de cologne, colognes and aftershave preparations; cosmetics; toiletries; hair tints and bleaches, hair lotions, hair lacquers and fixing preparations, hair waving and curling preparations, hair masks and creams (non-therapeutic), shampoos; preparations for skin care; skin and body creams; essential oils; articles for the bath/body; hand soaps and body soap; beauty preparations.

Class 35: Retail and/or wholesale sales services, in stores and via global computer networks, of all kinds of perfumery articles, fragrances, perfumes, toilet water, eau de cologne, colognes and aftershave preparations; cosmetics; toiletries; hair tints and bleaches, hair lotions, hair lacquers and fixing preparations, hair waving and curling preparations, hair masks and creams (non-therapeutic), shampoos; preparations for skin care; skin and body creams; essential oils; articles for the bath/body; hand soaps and body soap, articles for the care of the body and physical beauty; import and export services; business management.

Spanish trade mark registration No 141 446 (hereinafter EM3)

Class 3: Perfumes, essences, and all kinds of perfumery, toilet, beauty and hygienic products.

Class 5: Hygiene products (medicinal).

The contested goods are the following:

Class 3: Cosmetics in the form of oils; toiletries; essential oils and aromatic extracts; cleaning and fragrancing preparations.

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 and services 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 or services in question.

The goods assumed to be identical target the public at large.

The degree of attention is average.

3. The signs and distinctiveness of the earlier marks

KIN	QUINT
Earlier trade marks	Contested sign

The relevant territory is the European Union in relation to EM1 and Spain in relation to EM2 and EM3.

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 signs at issue are word marks, the earlier mark being ‘KIN’, the contested mark being ‘QUINT’.

‘KIN’ is meaningless for the relevant public.

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 marks are particularly distinctive by virtue of intensive use or reputation. Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. The distinctiveness of the earlier marks must be seen as normal as they have no meaning in relation to the goods and services at issue.

For part of the public, ‘QUINT’ is meaningless, whereas some consumers might grasp it as a reference to number ‘five’ (from Latin ‘quintus’), in particular French-, Italian- and Spanish-speaking consumers.

As pointed out by the opponent, the signs might be aurally identical for the same part of the public, for instance the French-speaking part of the public, where the letter ‘T’ is sometimes mute when it is at the end of a word. The Opposition Division will focus its assessment on this part of the public because it creates an aural identity between the signs.

Visually, the signs coincide in the string of letters ‘IN’. They differ in their respective beginnings, namely ‘K’ in the earlier marks and ‘QU’ in the contested sign as well as in the ultimate letter of the contested sign. Since the alphabet is made up of a limited number of letters, which, moreover, are not all used with the same frequency, it is inevitable that many words share some of them, but they cannot, for that reason alone, be regarded as visually similar.

Given the foregoing, and taking into account that the marks are of a different length, the contested sign being almost twice longer than the earlier marks, the Opposition Division finds that the signs are visually similar to a low degree.

Aurally, the signs are identical.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. For the part of the public perceiving a reference to the number five, the signs are conceptually not similar, whereas in the scenario where both marks are meaningless, the conceptual comparison has no influence.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. Global assessment, other arguments and conclusion

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

The signs are visually similar to a low degree and aurally identical. Conceptually, depending on the perception of the public, the signs will be conceptually not similar or the conceptual comparison has no impact in the present assessment.

The goods have been assumed to be identical.

The earlier marks have an average degree of distinctiveness and target the general public displaying an average degree of attention.

The similarity between the marks comes almost exclusively from the aural identity between the signs. Generally in perfumeries customers can themselves either choose the products they wish to buy or be assisted by the sales staff. Whilst oral communication in respect of the product and the trade mark is not excluded, the choice of the item of perfume or cosmetics is generally made visually. Therefore, the visual perception of the marks in question will generally take place prior to purchase. Accordingly the visual aspect plays a greater role in the global assessment of the likelihood of confusion (14/10/2003, T‑292/01, Bass, EU:T:2003:264; 28/06/2005, T‑301/03, Canal Jean, EU:T:2005:254; 23/02/2016, R 2911/2014‑5, MASTER PRECISE/MASTERS COLORS PARIS (fig.), § 53; 03/03/2004, T‑355/02, Zirh, EU:T:2004:62, § 51-54; 23/02/2006, T‑194/03, Bainbridge, EU:T:2006:65, § 116-117). Therefore, the considerable visual differences between the signs caused by the signs’ different beginnings and lengths are particularly relevant when assessing the likelihood of confusion between them.

Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public.

This absence of a likelihood of confusion applies equally to the part of the public for which ‘QUINT’ is meaningful (or at least, the part of the public who will associate ‘QUINT’ to a concept), given, as already explained, that conceptual dissimilarities may counteract visual and aural similarities. The same reasoning applies, furthermore, in the scenario where ‘QUINT’ and ‘KIN’ have different pronunciation, for instance for the English-speaking part of the public.

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

Claudia ATTINÀ

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.