OPPOSITION No B 3 014 191

Tyco Electronics Services GmbH, Rheinstr. 20, 8200 Schaffhausen, Switzerland (opponent), represented by Gilbey Legal, 43, Boulevard Haussmann, 75009 Paris, France (professional representative)

a g a i n s t

Beijing Chehejia Information Technology Co. Ltd., Room 312707, Building 5, No.1 Futong East Avenue, Chaoyang Beijing, People’s Republic of China (applicant), represented by Gevers, Brussels Airport Business Park, Holidaystraat 5, 1831 Diegem, Belgium (professional representative).

On 28/02/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 014 191 is partially upheld, namely for the following contested goods:

Class 12: Locomotives; Motor buses; Motor coaches; Trucks; Golf carts [vehicles]; Tractors; Electric vehicles; Vans [vehicles]; Refrigerated vehicles; Motorcycles; Sports cars; Vehicles for locomotion by land, air, water or rail; Cars; Automobiles; Ambulances; camping cars; Motor homes; Snowmobiles; Remote control vehicles, other than toys; Driverless cars [autonomous cars]; Scooters; Two-wheeled motor vehicles; Vans; Amphibious vehicles; Light trucks; Motorcycles for motocross; Electric locomotives; Minibuses.

2. European Union trade mark application No 17 265 414 is rejected for all the above goods. It may proceed for the remaining goods and services.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 265 414for the figurative sign , namely against some of the goods in Class 12. The opposition is based on international trade mark registration designating the European Union No 1 134 454 for the word mark ‘AMP+’. 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 9: Hybrid and electric vehicle chargers.

The contested goods are the following:

Class 12: Locomotives; Motor buses; Motor coaches; Trucks; Golf carts [vehicles]; Tractors; Waggons; Electric vehicles; Vans [vehicles]; Refrigerated vehicles; Motorcycles; Side cars; Sports cars; Tramcars; Vehicles for locomotion by land, air, water or rail; Cars; Automobiles; Ambulances; camping cars; Motor homes; Snowmobiles; Remote control vehicles, other than toys; Driverless cars [autonomous cars]; Scooters; Motors, electric, for land vehicles; Motors for land vehicles; engines for land vehicles; Driving motors for land vehicles; propulsion mechanisms for land vehicles; Two-wheeled motor vehicles; Engines for automobiles; Vans; Amphibious vehicles; Trolleybuses; Light trucks; Motorcycles for motocross; Electric locomotives; Minibuses.

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 locomotives; motor buses; motor coaches; Trucks; Golf carts [vehicles]; Tractors; Electric vehicles; Vans [vehicles]; Refrigerated vehicles; Motorcycles; Sports cars; Vehicles for locomotion by land, air, water or rail; Cars; Automobiles; Ambulances; camping cars; Motor homes; Snowmobiles; Remote control vehicles, other than toys; Driverless cars [autonomous cars]; Scooters; Two-wheeled motor vehicles; Vans; Amphibious vehicles; Light trucks; Motorcycles for motocross; Electric locomotives; Minibuses are considered similar to the opponent’s hybrid and electric vehicle chargers in Class 9 as these contested goods are or can be powered by electricity. Even if their natures differ, these goods have the same distribution channels and target the same relevant public. Furthermore, they are complementary in the sense that the opponent’s goods are, or can be, indispensable for the use of the contested goods.

The remaining contested goods, namely waggons; side cars; tramcars; motors, electric, for land vehicles; motors for land vehicles; engines for land vehicles; driving motors for land vehicles; propulsion mechanisms for land vehicles; engines for automobiles; trolleybuses are considered dissimilar to the opponent’s goods. The parts of the vehicles are not sold directly to the end users unlike chargers that might be sold for home charging, and vehicles such as Waggons; Side cars; Tramcars; Trolleybuses do not have batteries to charge because they are either charged directly from the electric network or they are pulled by other vehicles. These goods have different natures, purposes and method of use. They are neither complementary nor in competition. They do not originate usually from the same or economically linked undertakings.

The opponent refers to previous national decisions to support its arguments. However, it must be noted that decisions of national courts and national offices regarding conflicts between identical or similar trade marks at national level do not have a binding effect on the Office since the European Union trade mark regime is an autonomous system, which applies independently of any national system (13/09/2010, T‑292/08, Often, EU:T:2010:399).

Even though previous national decisions are not binding, their reasoning and outcome should be duly considered, particularly when the decision has been taken in the Member State that is relevant to the proceedings.

In the present case, the opponent submits evidence to prove that all the goods are similar. It refers to the decisions of the French Trade Mark Office (INPI) between the same goods which found all the goods similar. However, it does not provide any evidence if these decisions are final or if any appeal was filed.

The opponent also refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In the present case, the previous case referred to by the opponent is not relevant to the present proceedings as the goods are not the same.

b) 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.

In the present case, the goods found to be similar are directed at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.

c) The signs

AMP+
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 word mark ‘AMP+’. In case of word marks, it is the words as such that are protected and not their written form; therefore, it is immaterial for the visual comparison whether they are depicted in upper or lower class letters, or in which particular typeface they are presented.

The contested sign is figurative and it is composed of the word ‘Amp’ depicted in title case white characters with a black border and the word ‘GO’, in upper case bold yellow standard characters (except for the fact that the letter ‘O’ is divided into two halves).

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). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The common element ‘AMP’ is meaningful in certain territories, for example in those countries where English is spoken as it stands for ‘ampere’, a unit of electric current. Bearing in mind that the relevant goods are electric vehicles or chargers for such vehicle, the degree of distinctiveness of this coinciding element is lower than average for this part of the public. Consequently, for reasons of procedural economy, the Opposition Division finds it appropriate to focus the comparison of the signs on the non-English speaking part of the public such as the Spanish-speaking part of the public.

The element ‘AMP’ present in both signs has no clear meaning for the public under analysis and is, therefore, distinctive.

Part of the analysed public will understand the meaning of the English word ‘Go’, included in the contested sign, as indicating movement and mobility. Insofar as the goods at issue are different types of vehicles, this element is weak. However, for the remaining part of the public, this element is meaningless and as such distinctive.

The element ‘+’ of the earlier sign is a mathematical symbol that implies a concept of increase, the fact of being greater, a positive feature or aspect; an advantage, a bonus (26/11/2007, R 435/2007-1, PLUS; 16/11/2015, R 2187/2013-2, FILM PLUS / CINE+ et al., § 50; 07/07/2016, R 1685/2015-1, MobiPlus / Plus, §41). Therefore, it has laudatory connotations and as such it will be perceived as a weak element.

Visually and aurally, the signs coincide in letters/sounds ‘AMP’ which are placed at the beginning of both signs and in the contested sign are visually separated from the verbal element ‘GO’ due to their different colours. 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. The signs differ in the weak element ‘+’ of the earlier sign and in the weak or distinctive (depending on its understanding) element ‘GO’ and the graphic depiction of the contested sign.

Therefore, the signs are similar to a high or average degree depending on the distinctiveness of the element ‘GO’.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. The element ‘AMP’ is meaningless for the public under analysis. Regardless of the perception of the word ‘GO’ the signs are conceptually not similar as they either refer to dissimilar concepts (the plus sign and ‘GO’ when understood) or only one of the signs has a concept (the plus sign, when ‘GO’ is not understood). In any event, this conceptual difference has little impact on the comparison of the signs as it resides in weak elements.

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

d) 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, despite the presence of a weak element in the mark, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

In the present case the contested goods are partly similar and partly dissimilar. They target the general public as well as professionals. The degree of attention varies from average to high.

The signs are visually and aurally either similar to a high degree or to an average degree. Conceptually, they are not similar however this difference has little impact on the assessment of the similarity of the signs as explained above.

Consequently, taking into account all the above facts, the Opposition Division considers that the differences between the earlier mark and the contested sign are not sufficient to exclude a likelihood of confusion, as the signs coincide in the element ‘AMP’, which constitutes an independent and distinctive element in both signs, moreover placed at their beginnings.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Spanish-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

It follows from the above that the contested trade mark must be rejected for the goods found to be similar to those of the earlier trade mark.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Helen Louise MOSBACK

Katarzyna ZANIECKA

Anna ZIOŁKOWSKA

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.