OPPOSITION No B 3 029 488

Briloner Leuchten GmbH, Im Kissen 2, 59929 Brilon, Germany (opponent), represented by Fritz Patent- Und Rechtsanwälte Partnerschaft MBB, Apothekerstr. 55, 59755 Arnsberg, Germany (professional representative)

a g a i n s t

Shenzhen Ailead Electronic Technology Co. Ltd, Baoyuan Road, Xixiang Street, Bao'an District, Shenzhen, Guangdong, People's Republic of China (applicant), represented by José Izquierdo Faces, Iparraguirre 42 - 3º izda, 48012 Bilbao (Vizcaya), Spain (professional representative).

On 24/01/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 029 488 is upheld for all the contested goods, namely

Class 11: Lamps; light-emitting diodes [LED] lighting apparatus; fluorescent lamp tubes; lighting apparatus for vehicles; lighting apparatus.

2. European Union trade mark application No 17 375 312 is rejected for all the contested goods. It may proceed for the remaining goods.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 17 375 312 for the word mark ‘ailead’, namely some of the goods in Class 11. The opposition is based on European Union trade mark registration No 14 316 913 for the word mark ‘Agiled’. 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 and services

The goods on which the opposition is based are, inter alia, the following:

Class 11: Lighting apparatus; luminaires; lighting transformers; electric lamps; lamps; parts and accessories for all the aforesaid goods, included in this class; all the aforesaid goods for indoor lighting of private rooms, offices, law firms and medical practices.

The contested goods are the following:

Class 11: Lamps; light-emitting diodes [LED] lighting apparatus; fluorescent lamp tubes; lighting apparatus for vehicles; lighting apparatus.

Contested goods in Class 11

The contested lighting apparatus; light-emitting diodes [LED] lighting apparatus include, as a broader category, the opponent’s lighting apparatus for indoor lighting of private rooms, offices, law firms and medical practices. Therefore, these goods are considered identical.

The contested lamps include, as a broader category, the opponent’s lamps for indoor lighting of private rooms, offices, law firms and medical practices. Therefore, these goods are considered identical.

The contested fluorescent lamp tubes overlap with the opponent´s parts and accessories for lighting apparatus; all the aforesaid goods for indoor lighting of private rooms, offices, law firms and medical practices. Therefore, these goods are identical.

The contested lighting apparatus for vehicles are similar to the opponent’s lighting apparatus for indoor lighting of private rooms, offices, law firms and medical practices. These goods are lighting devices whose main purpose is producing light even though the contested goods are also aimed to increase the visibility of vehicles. Therefore, they have the same nature and purpose. Furthermore, they are directed to the same public.

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 identical are directed at the public at large.

The degree of attention is considered average.

c) The signs

Agiled	ailead
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.

Both the earlier mark and the contested sign are word marks consisting of one verbal element: ‘Agiled’ and ‘ailead’, respectively.

The possibility that part of the public will perceive the meaning of the elements ‘led’ as a English abbreviation standing for ‘Light Emitting Diode’ cannot be excluded.

However, neither mark has a meaning as a whole for at least part of the relevant public, such as the Bulgarian-speaking part of the public. Therefore, they are distinctive for the goods at issue.

The Opposition Division finds it appropriate to focus the comparison of the signs on the part of the public which will not associate any meaning to the signs, such as the Bulgarian-speaking part of the public.

Visually and aurally, the signs coincide in the letter sequence ‘A*ile*d’. However, the signs differ in the second letter of the earlier mark ‘g’, which does not have a counterpart in the contested sign, and in the penultimate letter ‘a’ of the contested sign. Both signs are composed of six letters and they share five of them. Furthermore, the pronunciation of the signs coincides in the sound of the letters ‘A*ile*d’, present identically in both signs, irrespective of the different pronunciation rules in different parts of the relevant territory. The pronunciation differs in the sound of the second letter ‛g’ of the earlier mark and of the penultimate letter ‛a’ of the contested sign.

Therefore, the signs are visually and aurally similar to an average degree.

Conceptually, neither of the signs has a meaning for the relevant public. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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 as a whole 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 relevant public. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, and the degree of similarity between the marks and between the goods or services identified. It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

In the present case, the contested goods in Class 11 are identical or similar to the opponent’s goods and are intended for the public at large, whose degree of attention is average.

The earlier mark has a normal degree of distinctiveness for all the relevant goods and services.

The signs are visually and aurally similar to an average degree while a conceptual comparison is not possible because neither the earlier mark nor the contested trade mark has a meaning for the relevant public.

The signs are similar to the extent that they coincide in ‘A*ile*d’. The earlier sign consists of six letters and five of them are reproduced in the same sequence in the contested sign, which also has six letters. Furthermore, the signs coincide in their first letter, which is the part of the signs that will be noticed first by the relevant public. They also coincide in their last letter and in most of their remaining letters, except for the second letter of the earlier mark and the penultimate letter in the contested sign.

Finally, account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Therefore, it is considered that the differences between the signs are insufficient to make the marks distinguishable from one another, particularly as the words are meaningless and there is no concept attached to the signs that could help consumers to differentiate one sign from the other.

Considering all the above, there is a likelihood of confusion on the part of the relevant public.

Therefore, the opposition is well founded on the basis of European Union trade mark registration No 14 316 913. It follows that the contested trade mark must be rejected for all the contested goods.

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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), the costs to be paid to the opponent are the opposition fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Andrea VALISA

Birgit FILTENBORG

Michele M. BENEDETTI ALOISI

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.