OPPOSITION No B 3 026 062

Traxon Technologies Ltd., 208 Wireless Centre, 3 Science Park East Avenue, Hong Kong Science Park, Shatin, Hong Kong (opponent), represented by König Szynka Tilmann von Renesse Patentanwälte, Partnerschaft mbB, Machtlfinger Str. 9, 81379 München, Germany (professional representative)

a g a i n s t

ZTE Corporation, ZTE Plaza, Keji Road South, Hi-Tech Industrial Park, Nanshan District, Shenzhen, People’s Republic of China (applicant), represented by Novagraaf France, Bâtiment O2 – 2, rue Sarah Bernhardt, CS 90017, 92665 Asnières-sur –Seine,

France (professional representative).

On 08/03/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 026 062 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 17 312 406 for the figurative mark . The opposition is based on European Union trade mark registration No 6 692 131 for the word mark ‘TRAXON’. 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: Apparatus and instruments for conducting, switching and transforming electricity, all relating to lighting; apparatus for controlling lighting; dimming apparatus for electronic lighting; light sensors; light switches; remote control apparatus for lighting; connection units relating to lighting; controllers relating to lighting; interface units relating to lighting; interface cables relating to lighting; plugs relating to lighting; sockets relating to lighting; parts and fittings for all the aforesaid goods.

Class 11: Installations, articles and equipment for lighting; lighting apparatus; electric lamps of all kinds, electric bulbs; parts and fittings for all the aforesaid goods.

The contested goods are the following:

Class 9: Smart phones; interactive touch screen terminals; slide projectors; computer software applications, downloadable; downloadable software applications for mobile phones; batteries, electric; chargers for electric batteries; network communication device; smartwatches (data processing); virtual reality headsets; protective films adapted for smartphones; wearable activity trackers; cases for smartphones; none of the aforementioned goods for use with or relating to electrical weapons, video surveillance equipment, digital evidence management systems, record management systems or cameras not physically incorporated as part of a mobile phone, laptop, tablet, or smart watch.

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.

It should also be noted that the limitation at the end of the specification of the contested goods in Class 9 (none of the aforementioned goods for use with or relating to electrical weapons, video surveillance equipment, digital evidence management systems, record management systems or cameras not physically incorporated as part of a mobile phone, laptop, tablet, or smart watch) does not affect their degree of dissimilarity with the opponent’s goods in Classes 9 and 11. Therefore, for the sake of clarity, and considering that it would not alter the result of the comparison, the aforementioned limitation will be taken into account, but will not be mentioned in the comparison that follows.

Contested goods in Class 9

When comparing the contested batteries, electric; chargers for electric batteries, which belong to the category of apparatus and instruments for accumulating and storing electricity, with the opponent’s apparatus and instruments for conducting, switching and transforming electricity, all relating to lighting, these are at least similar to a low degree. These goods can coincide in ultimate purpose, relevant public, producer and distribution channels.

When comparing the remaining contested goods, which belong, broadly speaking, to the broad category of information technology and audio-visual, multimedia and photographic devices and their accessories (smart phones; interactive touch screen terminals; slide projectors; network communication device; protective films adapted for smartphones; cases for smartphones); to the broad category of data processing equipment and accessories (smartwatches (data processing); virtual reality headsets; to the broad category of application software (computer software applications, downloadable; downloadable software applications for mobile phones) and to the broad category of navigation, guidance, tracking, targeting and map making devices (wearable activity trackers), with the opponent’s goods in Classes 9 and 11, which are all kinds of goods relating to the field of lighting, the Opposition Division finds them dissimilar. These goods have a different nature and purpose. They are not complementary neither are they in competition. They have different distribution channels, target a different public and are normally produced by different companies.

Regarding the applicant’s argument that some of the contested goods, for example smart phones, can be used as a light source and for controlling lighting equipment, the Opposition Division points out that nowadays a smart phone has taken over many functions, but this is not the main purpose of a smart phone. Therefore, the applicant’s arguments in this regard have to be set aside and all these goods have to be considered dissimilar.

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 to, at least, a low degree, are both directed at the public at large and at business customers with specific professional knowledge or expertise, for example in the electrical field, such as electricians.

The level of attention varies from average to above average, depending on the price, frequency of purchase, (specialised) nature and conditions of the purchased goods.

c) The signs

TRAXON
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 consisting of the word ‘TRAXON’. The contested sign is a figurative mark composed of the word and letter ‘AXON M’, written in a slightly fancy bold typeface of which the first letter ‘A’ is more fancy than the remaining letters.

The word ‘TRAXON’ of the earlier mark will be perceived as a meaningless term for the relevant public and is, therefore, normally distinctive. The same is applicable for the word ‘AXON’ of the contested sign, which is meaningless for the relevant public and, consequently, also distinctive. The letter ‘M’ refers to this letter in the alphabet and is perceived as such. As it has no particular relationship with the relevant goods, it is also distinctive. Regarding this letter ‘M’, the Opposition Division does not agree with the opponent, in its observations, where it points out that the letter ‘M’ is perceived as referring to ‘medium’, since in this combination of the word ‘AXON’ and ‘M’ and taking into account the relevant goods, (not clothing and the like), the consumer will not perceive it as having that meaning.

Visually and aurally, the signs coincide in the letters ‘*-*-A-X-O-N-*’. However, they differ in the first two letters ‘TR’ of the earlier mark and the letter ‘M’, forming the second part of the contested sign, and in its different typeface. Even though this typeface is only slightly fancy, there is still a striking difference in the use of, in particular the first letter ‘A’, which is quite more fancy.

It is important to point out that 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 or from top to bottom, which makes the part placed at the left or on top of the sign (the initial part) the one that first catches the attention of the reader. In the present case, the fact that the first two letters of the earlier mark are entirely different, is relevant for the comparison.

The letters that the signs have in common do not constitute independent elements in the signs, consumers will not artificially dissect the earlier mark in order to extract ‘AXON’ and the differing letters will clearly be noticed by the relevant consumers. Although the signs have some sounds in common, they have different letters, in particular at the beginning that introduce rather striking differences, and are not shared at all by the contested sign and vice versa. Furthermore, the letter ‘T’, which is a voiceless alveolar stop, the letter ‘R’, which is an alveolar semivowel, of the earlier mark, give a totally different sound at the beginning, where the consumer focuses first. Furthermore, the contested sign is pronounced at the end with the letter ‘M’, which is a ‘bilabial nasal’. The earlier mark is pronounced as /TRA-XON/ (two syllables) and the contested sign as /A-XON/ /M/ (three syllables).

Therefore, the signs are visually and aurally similar to a very low degree.

Conceptually, the earlier mark has no meaning, while the public will perceive the meaning of the letter ‘M’, as the single letter ‘M’, in the contested sign as explained above. As one of the signs will not be associated with any meaning, the signs are not conceptually similar.

As the signs have been found similar to a very low degree 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.

e) Global assessment, other arguments and conclusion

A likelihood of confusion (including a likelihood of association) 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.

The contested goods have been found to be partly similar to, at least, a low degree and partly dissimilar, they are directed at both the public at large and a more specialised public whose level of attention varies from average to above average. The earlier mark, as a whole, has a normal degree of distinctiveness.

The marks are visually and phonetically only similar to a very low degree and conceptually they are not similar. Although the signs coincide in some letters/sounds, comparing the marks in overall terms, the Opposition Division finds that there are sufficient differences in the additional letters and sounds, as well as in the fact that some of the differentiating letters/sounds are at the beginning and a different typeface is used in the contested sign, to outweigh the few similarities between the signs.

The Opposition Division is of the opinion that the dissimilarities are sufficient to safely exclude a likelihood of confusion including a likelihood of association. It can reasonably be concluded that consumers will clearly be able to distinguish the marks in dispute and will perceive them as coming from different undertakings.

Considering all the above, even taking into account that the goods are similar, at least, to a low degree, there is no likelihood of confusion on the 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

Saida CRABBE

Chantal VAN RIEL

Richard BIANCHI

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.