OPPOSITION Nо B 3 050 677

Latiberia Motors, SIA, Hanzas iela 7/2, 1045 Rīga, Latvia (opponent), represented by Patent Agency KDK, Dzerbenes iela 27, 1006 Riga, Latvia (professional representative)

a g a i n s t

Nolo GmbH, Blaufärberstraße 46, 48268 Greven, Germany (applicant), represented by Alexander Prinz, Splieterstr. 70a, 48231 Warendorf, Germany (professional representative).

On 01/03/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 050 677 is partially upheld, namely for the following contested goods:

Class 14: Ornaments [jewellery, jewelry (Am)]; knobs of precious metals and their alloys; key rings [split rings with trinket or decorative fob]; belt clips of precious metals and their alloys; buckles for watchstraps; badges of precious metal; amulets [jewellery, jewelry (Am)]; pendants; pins being jewelry; bracelets; wristwatches; bracelets; hoop earrings; ingots of precious metals; clothing ornaments of precious metals; brooches [jewellery]; clips of silver [jewellery]; hoop earrings; decorative pins [jewellery]; decorative articles [trinkets or jewellery] for personal use; decorative cuff link covers; metal badges for wear [precious metal]; tie clips of precious metal; key fobs of precious metals; wedding rings; enamelled jewellery; commemorative shields of precious metal; commemorative shields; eternity rings; figurines of precious metal; rings [jewellery, jewelry (Am)]; flexible wire bands for wear as a bracelet; friendship bracelets; friendship rings; ankle bracelets; prayer beads; commemorative medals; commemorative statuary cups made of precious metal; jewels; facial jewellery; prize cups of precious metals; semi-precious articles of bijouterie; semi-finished articles of precious metals for use in the manufacture of jewellery; necklaces [jewellery]; necklace charms; jade [jewellery]; jewellery fashioned from non-precious metals; jewellery items; clocks; watches; jewellery being articles of precious metals; jewels; chains [jewelry]; children’s jewelry; jewelry findings; cuff links; tie bars; tie pins; works of art of precious metal; cuff links; medals; medallions; lockets [jewellery]; body costume jewellery; paste jewellery [costume jewelry (Am)]; coins; ornamental pins; identity plates of precious metal; drop earrings; earrings; pierced earrings; lapel pins of precious metals [jewellery]; lapel pins [jewellery]; rings [jewellery, jewelry (Am)]; key chains; key rings and key chains, and charms therefor; jewellery charms; jewel cases; ornamental pins; jewellery made of precious metals; shoe jewellery; signet rings; trophies made of precious metals; stands for clocks; ornaments [statues] made of precious metal.

Class 25: Clothing; waist belts; belt clips (fashion accessories); headgear; footwear; evening wear; ball gowns; clothing for horse-riding [other than riding hats]; blazers; brassieres; capes; chaps (clothing); evening wear; ladies’ clothing; footwear for women; ladies’ underwear; pocket squares; flat shoes; fleeces; bowties; golf pants, shirts and skirts; golf caps; neckbands; neckwear; scarves; wrist warmers; gloves [clothing]; shirts; shirt fronts; menswear; hooded pullovers; suspenders; knee-high stockings; girdles; hats; jackets [clothing]; jodhpurs; gowns; collars; neckties; short-sleeved or long-sleeved t-shirts; caps [headwear]; outerclothing; dress shirts; ascots (ties); polo shirts; sweaters; slipovers; riding gloves; jodhpurs; riding shoes; shoe straps; shawls and stoles; pullstraps for shoes and boots; fittings of metal for footwear; sweatbands; silk ties; silk scarves; dinner suits; socks; boots; stockings; tennis wear; fabric belts [clothing]; kerchiefs [clothing]; cloaks.

Class 26: Clips (fashion accessories); tufts; buckles being clothing accessories; clothing ornaments, not of precious metal; accessories for apparel, decorative textile articles; charms, other than for jewellery; badges [buttons] (ornamental novelty -); appliqués [haberdashery]; brassards; patches for clothing; ribbons of textile materials; borders for hemming clothing; brooches [clothing accessories]; woggles; snap buttons for clothing; embroidered emblems; embroidered patches; embroidered emblems; glass beads, other than for making jewelry; gold embroidery; webbing tapes; belt clasps; belt buckles; shirt buttons; hat pins for securing hats; hat ornaments; snap hooks [fasteners] for clothing; edgings for clothing; clothing hooks [fasteners]; eyelets for clothing; dress fastenings; clasps for clothing; buttons; eyelets of metal for clothing; metal fasteners for footwear; novelty buttons [badges] for wear; sequins; zipper pulls; scarf clips not being jewelry; ribbons; buckles [clothing accessories]; embroidery; appliqués [haberdashery]; decorative charms for eyewear; decorative ribbons.

2. European Union trade mark application No 17 504 804 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 17 504 804 for the figurative mark , namely against all the goods in Classes 14 and 25 and some of the goods in Class 26. The opposition is based on international trade mark registration designating Estonia No 1 138 504 for the figurative mark . The opponent invoked Article 8(1)(b) EUTMR.

PRELIMINARY REMARK

The opponent initially also based its opposition on earlier Latvian trade mark registration No 64 477 for the figurative mark . However, following a request for proof of use filed by the applicant, the opponent withdrew this earlier mark.

PROOF OF USE

The applicant requested that the opponent submit proof of use of the trade mark on which the opposition is based.

In the present case, the date of filing of the contested trade mark is 21/11/2017.

Earlier trade mark No 1 138 504 is an international registration designating the individual Member State of Estonia. Each Member State has either a 12- or 18-month deadline to issue a provisional refusal under the Madrid Protocol. Where a provisional refusal is issued within this deadline, the date that will be decisive in determining whether the mark is subject to the proof of use obligation is the date when the proceedings leading to the provisional refusal are concluded, namely when the Statement of Grant of Protection is issued. Additionally, where a provisional refusal has not been issued, but a Statement of Grant of Protection is issued prior to the expiry of the 12- or 18-month deadline, this will be the decisive date.

For the designation of Estonia, the Statement of Grant of Protection was published by WIPO on 01/05/2014. It can be inferred from this date that the earlier mark had not been protected for at least five years on the relevant date. Therefore, the request for proof of use is inadmissible.

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 14: Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewelry, precious stones; horological and chronometric instruments.

Class 18: Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and traveling bags; umbrellas and parasols; walking sticks.

Class 25: Clothing, footwear, headgear, accessories of the aforementioned goods (included in this class); socks, stockings, tights, underclothing.

The contested goods, after the limitation by the applicant, are the following:

Class 14: Ornaments [jewellery, jewelry (Am)]; knobs of precious metals and their alloys; key rings [split rings with trinket or decorative fob]; belt clips of precious metals and their alloys; buckles for watchstraps; badges of precious metal; amulets [jewellery, jewelry (Am)]; pendants; pins being jewelry; bracelets; wristwatches; bracelets; hoop earrings; ingots of precious metals; clothing ornaments of precious metals; brooches [jewellery]; clips of silver [jewellery]; hoop earrings; decorative pins [jewellery]; decorative articles [trinkets or jewellery] for personal use; decorative cuff link covers; metal badges for wear [precious metal]; tie clips of precious metal; key fobs of precious metals; wedding rings; enamelled jewellery; commemorative shields of precious metal; commemorative shields; eternity rings; figurines of precious metal; rings [jewellery, jewelry (Am)]; flexible wire bands for wear as a bracelet; friendship bracelets; friendship rings; ankle bracelets; prayer beads; commemorative medals; commemorative statuary cups made of precious metal; jewels; facial jewellery; prize cups of precious metals; semi-precious articles of bijouterie; semi-finished articles of precious metals for use in the manufacture of jewellery; necklaces [jewellery]; necklace charms; jade [jewellery]; jewellery fashioned from non-precious metals; jewellery items; clocks; watches; jewellery being articles of precious metals; jewels; chains [jewelry]; children’s jewelry; jewelry findings; cuff links; tie bars; tie pins; works of art of precious metal; cuff links; medals; medallions; lockets [jewellery]; body costume jewellery; paste jewellery [costume jewelry (Am)]; coins; ornamental pins; identity plates of precious metal; drop earrings; earrings; pierced earrings; lapel pins of precious metals [jewellery]; lapel pins [jewellery]; rings [jewellery, jewelry (Am)]; key chains; key rings and key chains, and charms therefor; jewellery charms; jewel cases; ornamental pins; jewellery made of precious metals; shoe jewellery; signet rings; trophies made of precious metals; stands for clocks; ornaments [statues] made of precious metal.

Class 25: Clothing; waist belts; belt clips (fashion accessories); headgear; footwear; evening wear; ball gowns; clothing for horse-riding [other than riding hats]; blazers; brassieres; capes; chaps (clothing); evening wear; ladies’ clothing; footwear for women; ladies’ underwear; pocket squares; flat shoes; fleeces; bowties; golf pants, shirts and skirts; golf caps; neckbands; neckwear; scarves; wrist warmers; gloves [clothing]; shirts; shirt fronts; menswear; hooded pullovers; suspenders; knee-high stockings; girdles; hats; jackets [clothing]; jodhpurs; gowns; collars; neckties; short-sleeved or long-sleeved t-shirts; caps [headwear]; outerclothing; dress shirts; ascots (ties); polo shirts; sweaters; slipovers; riding gloves; jodhpurs; riding shoes; shoe straps; shawls and stoles; pullstraps for shoes and boots; fittings of metal for footwear; sweatbands; silk ties; silk scarves; dinner suits; socks; boots; stockings; tennis wear; fabric belts [clothing]; kerchiefs [clothing]; cloaks.

Class 26: Clips (fashion accessories); tufts; buckles being clothing accessories; clothing ornaments, not of precious metal; accessories for apparel, sewing articles and decorative textile articles; charms, other than for jewellery; badges [buttons] (ornamental novelty -); appliqués [haberdashery]; brassards; patches for clothing; ribbons of textile materials; borders for hemming clothing; brooches [clothing accessories]; woggles; snap buttons for clothing; embroidered emblems; embroidered patches; embroidered emblems; glass beads, other than for making jewelry; gold embroidery; webbing tapes; belt clasps; belt buckles; hair bands; hair fasteners; barrettes; bobby pins; hair pins; bows for the hair; decorative articles for the hair; hair ornaments, hair rollers, hair fastening articles, and false hair; shirt buttons; hat pins for securing hats; hat ornaments; snap hooks [fasteners] for clothing; edgings for clothing; clothing hooks [fasteners]; eyelets for clothing; dress fastenings; clasps for clothing; buttons; eyelets of metal for clothing; metal fasteners for footwear; novelty buttons [badges] for wear; sequins; ponytail holders; zipper pulls; scarf clips not being jewelry; ribbons; decorative articles for the hair; buckles [clothing accessories]; sticks for use in decorating the hair; embroidery; appliqués [haberdashery]; decorative charms for eyewear; decorative ribbons.

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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.

Contested goods in Class 14

The contested ornaments [jewellery, jewelry (Am)]; amulets [jewellery, jewelry (Am)]; pendants; pins being jewelry; bracelets; bracelets; hoop earrings; brooches [jewellery]; clips of silver [jewellery]; hoop earrings; decorative pins [jewellery]; decorative articles [trinkets or jewellery] for personal use; tie clips of precious metal; wedding rings; enamelled jewellery; eternity rings; rings [jewellery, jewelry (Am)]; flexible wire bands for wear as a bracelet; friendship bracelets; friendship rings; ankle bracelets; facial jewellery; semi-precious articles of bijouterie; necklaces [jewellery]; necklace charms; jade [jewellery]; jewellery fashioned from non-precious metals; jewellery items; jewellery being articles of precious metals; chains [jewelry]; children’s jewelry; cuff links; tie bars; tie pins; cuff links; medallions; lockets [jewellery]; body costume jewellery; paste jewellery [costume jewelry (Am)]; ornamental pins; drop earrings; earrings; pierced earrings; lapel pins of precious metals [jewellery]; lapel pins [jewellery]; rings [jewellery, jewelry (Am)]; jewellery charms; ornamental pins; jewellery made of precious metals; shoe jewellery; signet rings are included in the broad category of, or overlap with, the opponent’s jewelry. Therefore, they are identical.

The contested jewels (listed twice) are synonymous with the opponent’s precious stones. Therefore, they are identical.

The contested wristwatches; clocks; watches are included in the broad category of the opponent’s horological and chronometric instruments. Therefore, they are identical.

The contested jewel cases are similar to the opponent’s jewelry, as they usually coincide in their producer and relevant public. Furthermore, they are complementary.

The contested stands for clocks are similar to the opponent’s horological and chronometric instruments, as they usually coincide in their producer and relevant public. Furthermore, they are complementary.

Finally, without further examples or any express limitation by the opponent clarifying the terms goods in precious metals or coated therewith, not included in other classes, it cannot be assumed that the contested knobs of precious metals and their alloys; key rings [split rings with trinket or decorative fob]; belt clips of precious metals and their alloys; buckles for watchstraps; badges of precious metal; ingots of precious metals; clothing ornaments of precious metals; decorative cuff link covers; metal badges for wear [precious metal]; key fobs of precious metals; commemorative shields of precious metal; commemorative shields; figurines of precious metal; prayer beads; commemorative medals; commemorative statuary cups made of precious metal; prize cups of precious metals; semi-finished articles of precious metals for use in the manufacture of jewellery; jewelry findings; works of art of precious metal; medals; coins; identity plates of precious metal; key chains; key rings and key chains, and charms therefor; trophies made of precious metals; ornaments [statues] made of precious metal have the same purpose or methods of use, or share the same distribution channels, as the opponent’s vague category of goods in precious metals or coated therewith, not included in other classes. Nor can it be determined whether they are in competition or complementary. However, they can be considered to have the same nature, insofar as they are goods which may be made of or coated with precious metals. Furthermore, it is reasonable to assume that the goods may be produced by the same companies, given that the required know-how and machinery (to work precious metals) may also be the same. Therefore, these goods can only be found similar to a low degree.

Contested goods in Class 25

Clothing; headgear; footwear; socks; stockings are identically contained in both lists of goods.

The contested waist belts; evening wear; ball gowns; clothing for horse-riding [other than riding hats]; blazers; brassieres; capes; chaps (clothing); evening wear; ladies’ clothing; ladies’ underwear; pocket squares; fleeces; bowties; golf pants, shirts and skirts; neckbands; neckwear; scarves; wrist warmers; gloves [clothing]; shirts; menswear; hooded pullovers; suspenders; knee-high stockings; girdles; jackets [clothing]; jodhpurs; gowns; collars; neckties; short-sleeved or long-sleeved t-shirts; outerclothing; dress shirts; ascots (ties); polo shirts; sweaters; slipovers; riding gloves; jodhpurs; shawls and stoles; sweatbands; silk ties; silk scarves; dinner suits; stockings; tennis wear; fabric belts [clothing]; kerchiefs [clothing]; cloaks are included in the broad category of, or overlap with, the opponent’s clothing. Therefore, they are identical.

The contested golf caps; hats; caps [headwear] are included in the broad category of the opponent’s headgear. Therefore, they are identical.

The contested footwear for women; flat shoes; riding shoes; boots are included in the broad category of the opponent’s footwear. Therefore, they are identical.

The contested belt clips (fashion accessories) are included in the broad category of the opponent’s accessories of the aforementioned goods [clothing; footwear] (included in this class). Therefore, they are identical.

The contested shoe straps; pullstraps for shoes and boots; fittings of metal for footwear are similar to the opponent’s footwear since these contested goods, often detachable, are sold separately and used with footwear. Therefore, they may coincide in their customers, manufacturers and distribution channels, and they are also complementary.

The contested shirt fronts are similar to a low degree to the opponent’s accessories of the aforementioned goods [clothing] (included in this class), as these are used for the same purpose (either in the making of clothing or in the making of clothing embellishments), are usually found in the same outlets (haberdashers) and target the same public.

Contested goods in Class 26

The contested clips (fashion accessories); tufts; buckles being clothing accessories; clothing ornaments, not of precious metal; accessories for apparel, decorative textile articles; charms, other than for jewellery; badges [buttons] (ornamental novelty -); appliqués [haberdashery]; brassards; patches for clothing; ribbons of textile materials; borders for hemming clothing; brooches [clothing accessories]; woggles; snap buttons for clothing; embroidered emblems; embroidered patches; embroidered emblems; glass beads, other than for making jewelry; gold embroidery; webbing tapes; belt clasps; belt buckles; shirt buttons; hat pins for securing hats; hat ornaments; snap hooks [fasteners] for clothing; edgings for clothing; clothing hooks [fasteners]; eyelets for clothing; dress fastenings; clasps for clothing; buttons; eyelets of metal for clothing; metal fasteners for footwear; novelty buttons [badges] for wear; sequins; zipper pulls; scarf clips not being jewelry; ribbons; buckles [clothing accessories]; embroidery; appliqués [haberdashery]; decorative ribbons are similar at least to a low degree to the opponent’s accessories of the aforementioned goods [clothing; footwear; headgear] (included in this class) in Class 25. These goods are used for the same purpose (either in the making of clothing, footwear or headgear or in the making of clothing, footwear or headgear embellishments) and are usually found in the same outlets (haberdashers), in which embellishments and accessories for clothing, footwear or headgear are sold. These goods of the opponent and some of the contested goods, such as belt clasps; snap hooks [fasteners]; buttons; buckles [clothing accessories] have mainly functional purposes, while other goods, such as decorative textile articles; charms, other than for jewellery, are articles used to decorate an outfit. The goods at issue target the same public and have similar methods of use, as they are typically sewn onto clothing, footwear or headgear.

The contested decorative charms for eyewear and the opponent’s accessories of the aforementioned goods [clothing] (included in this class) in Class 25 are often found in the same retail outlets, namely haberdashers, and target the same public. Consumers looking for clothing accessories will expect to find the contested goods in the same shops, and vice versa. Moreover, many manufacturers and designers will design and produce accessories for both clothing and eyewear. Therefore, the goods are similar to a low degree.

The contested sewing articles serve a different purpose and have a different nature and method of use from those of the opponent’s goods in Classes 14, 18 and 25. Although these contested goods can be used in the manufacturing process of the opponent’s goods, this is – as a single factor – not sufficient for a finding of similarity between these goods. The goods are neither complementary, nor in competition. They do not usually have the same commercial origin, and they target different end users. Therefore, they are considered dissimilar.

The contested hair bands; hair fasteners; barrettes; bobby pins; hair pins; bows for the hair; decorative articles for the hair; hair ornaments, hair rollers, hair fastening articles, and false hair; ponytail holders; decorative articles for the hair; sticks for use in decorating the hair are all types of accessories worn in the hair with the purpose of keeping hair in place or holding hair away from the face or eyes. These goods are different in nature from all the opponent’s goods in Classes 14, 18 and 25: they serve different purposes; the method of use of these goods is different; and they are not complementary to or in competition with the opponent’s goods. They are offered for sale in different outlets and are not usually produced by the same undertakings. Therefore, contrary to the opponent’s arguments, they are dissimilar.

The opponent submitted a printout from an online shop selling hair accessories to support its claim that these goods target the same public and have the same distribution channels as its clothing accessories. However, this online shop offers only hair accessories, such as scrunchies, bow hair clips and Alice bands. In addition, even if this online shop sold clothing accessories, a single online shop would not be sufficient to prove that the market reality is as the opponent claims. Therefore, the opponent’s claim must be set aside.

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 or similar to varying degrees 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 frequency of purchase of the goods and their price.

c) The signs

Earlier trade mark	Contested sign

The relevant territory is Estonia.

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 are meaningless for the relevant public and are, therefore, distinctive.

Visually, the signs coincide in all their letters, ‘NOLO’. However, they differ in their structures, as the earlier mark’s letters are positioned on one line, whereas the contested sign’s letters are on two lines.

Furthermore, the signs differ in their slightly stylised typefaces, the earlier mark’s accents on both letters ‘o’ and the contested sign’s colours (grey and red). However, these differentiating components have less impact, because when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37).

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

Aurally, the signs will be pronounced identically.

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

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.

e) 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).

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods covered are from the same or economically linked undertakings.

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). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

As established above in section a) of this decision, the goods are partly dissimilar, partly identical and partly similar to varying degrees. As identity or similarity of goods and services is a necessary condition for the application of Article 8(1)(b) EUTMR, the opposition based on this Article and directed at the dissimilar goods cannot be successful.

The goods found to be identical or similar to varying degrees are directed at the general and professional public, whose degree of attention may vary from average to high.

The signs are visually similar to an average degree and aurally identical, as they are composed of the same letters. The visual differences in the figurative aspects and structure of the signs are not striking and will have less impact, since, as stated above, the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal elements than by describing their figurative elements. Therefore, the overall differences between the signs are not sufficient to outweigh their similarity, and to enable the relevant public to safely distinguish between them.

The distinctiveness of the earlier mark is normal, and neither of the signs has a meaning that could help the relevant public to more easily differentiate them.

Therefore, and bearing in mind the abovementioned interdependence principle, it is highly conceivable that the relevant public, even those who will pay a high degree of attention (and who will also have to rely on their imperfect recollection of the signs), could confuse the signs or believe that the identical or similar goods originate from the same or economically linked undertakings, even in relation to the goods found to be similar to only a low degree.

It is highly conceivable that the relevant public would perceive the contested sign as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

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

Therefore, the opposition is partly well founded on the basis of the opponent’s international trade mark registration designating Estonia No 1 138 504. It follows that the contested trade mark must be rejected for the goods found to be identical or similar to varying degrees to those of the earlier trade mark.

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

Beatrix STELTER

Lidiya NIKOLOVA

Christian STEUDTNER

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.