OPPOSITION No B 3 047 383

Anker Innovations Limited, RM 1318‑19, 13 F Hollywood Plaza, 610 Nathan Road, Mongkok, Kowloon, Hong Kong (opponent), represented by Boehmert & Boehmert Anwaltspartnerschaft mbB-Patentanwälte Rechtsanwälte, Kurfürstendamm 185, 10707 Berlin, Germany (professional representative)

a g a i n s t

Shenzhen Qixinrong Trading Co. Ltd., 1001 Shangyou Mansion, Shangyousong Village, Longhua dist, 518000 Shenzhen, People’s Republic of China (applicant), represented by Karel Mul, Jan Van Rijswijcklaan 194A, box 6, 2020 Antwerp, Belgium (professional representative).

On 25/02/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 047 383 is upheld for all the contested goods.

2. European Union trade mark application No 17 537 622 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 537 622, Anwer (word mark), namely against all the goods in Class 9. The opposition is based on, inter alia, European Union trade mark registration No 10 358 406, ANKER (word mark). 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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 10 358 406.

a) The goods

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

Class 9: Apparatus, equipment and instruments for recording and/or reproducing data, sound, images, text and pictures; apparatus, equipment and instruments for the storage of data, sound, images, text and pictures; power supply apparatus and equipment for consumer electronic products; laptop adaptors; cell phone batteries; electronic charging apparatus and equipment; batteries for computers; batteries for laptops; batteries for mobile phones; batteries for cameras; batteries for digital cameras; batteries for camcorders; batteries for digital camcorders; batteries for household appliances; batteries for power tools; accessories for computers, laptop computers, tablet computers, mobile telephones, cameras, digital cameras, camcorders; computers and accessories therefor; desktop computers; personal computers; laptop computers; tablet computers; computer peripherals; monitors; keyboards; mice; mouse mats; cameras for use with computers; speakers; wireless speakers; microphones; cases adapted for computers, laptop computers, tablet computers, mobile telephones, cameras, digital cameras, camcorders; cases adapted for computers; chargers for personal computers; chargers for tablet computers; stands incorporating chargers; stands incorporating chargers for tablet computers; docking stations for personal computers; docking stations for tablet computers; docking stations for laptop computers; docking stations for tablet computers; data storage devices; memory sticks; CD-ROMS; telephonic apparatus and equipment; telephones; mobile telephone apparatus and equipment; hands free kits for phones; stands for mobile phones; chargers for mobile phones; stands incorporating chargers for mobile phones; accessories for telephones and mobile telephones; parts and fittings for all of the aforesaid goods.

The contested goods are the following:

Class 9: Cellular phones; Covers for smartphones; Earphones; Cases for smartphones; Protective films adapted for smartphones; Smartphones; Battery charge devices; Cell phone battery chargers; Data cables; Protective films adapted for computer screens; Cell phone battery chargers for use in vehicles; Wireless headsets for smartphones; Batteries, electric; Chargers for electric batteries; Headphones; Smart watches; Cell phone straps; Electric navigational instruments; Computer peripheral devices; Bags adapted for laptops; Sleeves for laptops; Touchscreen monitors; Wireless chargers.

Cellular phones; computer peripheral devices are identically contained in both lists of goods (including synonyms).

The contested smartphones are included in the broad category of the opponent’s telephones. Therefore, they are identical.

The contested battery charge devices; cell phone battery chargers; cell phone battery chargers for use in vehicles; chargers for electric batteries; wireless chargers are included in the broad category of, or overlap with, the opponent’s electronic charging apparatus and equipment. Therefore, they are identical.

The contested batteries, electric overlap with the opponent’s cell phone batteries. Therefore, they are identical.

The contested covers for smartphones; earphones; cases for smartphones; protective films adapted for smartphones; data cables; protective films adapted for computer screens; wireless headsets for smartphones; headphones; cell phone straps; bags adapted for laptops; sleeves for laptops are included in the broad category of the opponent’s accessories for computers, laptop computers, tablet computers, mobile telephones. Therefore, they are identical.

The contested touchscreen monitors are included in the broad category of the opponent’s monitors. Therefore, they are identical.

The contested smart watches; electric navigational instruments are included in the broad category of the opponent’s apparatus, equipment and instruments for recording and/or reproducing data, sound, images, text and pictures; apparatus, equipment and instruments for the storage of data, sound, images, text and pictures. Therefore, they are identical.

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 and at business customers with specific professional knowledge or expertise.

The degree of attention will vary depending on the goods from average (e.g. covers for smartphones) to high (e.g. smart watches, which can be expensive items).

c) The signs

ANKER	Anwer
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.

The earlier mark, ‘ANKER’ has a meaning in several languages in the relevant territory, for example in those countries where German, English, or Dutch is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the public of the part of the relevant territory where it is not meaningful, such as Spanish-speaking public.

Both signs are word marks. The earlier mark’s single element ‘ANKER’ is meaningless in Spanish, and therefore it is distinctive.

The contested sign is a word mark, ‘Anwer’, it has no meaning for the relevant Spanish public and therefore it is distinctive.

Visually, the signs coincide in four out of the five letters of the signs, ‘An*er’ However, they differ in their middle letter, ‘K’ of the earlier mark and ‘w’ of the contested sign.

Therefore, the signs are visually highly similar.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛An*er’, present identically in both signs. The pronunciation differs in the sound of the letters ‛K’ of the earlier mark and ‘w’ of the contested sign, placed on the middle of both signs. The beginning and the last part of the signs are identical.

Therefore, the signs are aurally highly similar.

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

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 (recital 11 of the EUTMR). 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 earlier mark has an average degree of distinctiveness for the Spanish-speaking part of the public.

The goods are identical.

The signs are visually and aurally similar to a high degree. The signs are word marks which coincide in four out of five letters of the signs, in the same order. Moreover, a conceptual comparison is not possible. The difference between the earlier mark and the contested sign, resulting from their middle letter, is not sufficient to counteract the high similarities between them. In word signs or in signs containing a verbal element, the first part is generally the one that primarily catches the consumer’s attention and, therefore, will be remembered more clearly than the rest of the sign. This means that in general the beginning of a sign has a significant influence on the general impression made by the mark (15/12/2009, T‑412/08, Trubion, EU:T:2009:507, § 40; 25/03/2009 T‑109/07, Spa Therapy, EU:T:2009:81, § 30). In this case, both the beginning and the last letters of the signs are identical.

Account must be 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). Indeed, 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).

Considering all the above, there is a likelihood of confusion on the part of the Spanish-speaking part of the public, even for the goods for which the public will have a high degree of attention.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 10 358 406.

As the earlier right European Union trade mark registration No 10 358 406 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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(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

Volker MENSING

Patricia LOPEZ FERNANDEZ DE CORRES

Dorothée SCHLIEPHAKE

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.