OPPOSITION No B 3 047 668

Coviran, S.C.A., Ctra. Nacional 432 Km. 431, 18230 Atarfe (Granada), Spain (opponent), represented by Javier Ungría López, Avda. Ramón y Cajal, 78, 28043, Madrid, Spain (professional representative)

a g a i n s t

Tinyyo Limited, 314 Main Road, Parson Drove PE13 4LF, Wisbech, United Kingdom (applicant), represented by Kelly-Ann Fransz, 34 Laurel Grove, Kingswood ME173PS, United Kingdom (professional representative).

On 20/12/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 047 668 is upheld for all the contested goods.

2. European Union trade mark application No 17 537 721 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 17 537 721 ‘KOVIRA’. The opposition is based on, inter alia, European Union trade mark registration No 8 958 381 . 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 8 958 381.

a) The goods

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

Class 3: Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices.

Class 8: Hand tools and implements (hand operated); cutlery; side arms; razors.

Class 21: Household or kitchen utensils and containers (not of precious metal or coated therewith); combs and sponges; brushes (except paint brushes); brush-making materials; materials for cleaning purposes; steelwool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes.

The contested goods are the following:

Class 3: Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; non-medicated soaps; perfumery, essential oils, non-medicated cosmetics, non-medicated hair lotions; non-medicated dentifrices; body cleaning and beauty care preparations; make-up for the face and body; soaps for body care; bath preparations; deodorants for body care; skin, eye care and nail preparations; hair removal and shaving preparations; hair preparations and treatments.

Class 8: Hand tools and implements; manicure and pedicure tools; nail clippers; nail scissors; nail files; nail buffers; hairdressing scissors; hair styling appliances; hair clippers for personal use; hair removing tweezers.

Class 21: Cosmetic brushes; cosmetic sponges; cosmetic utensils; cosmetic applicators; cosmetic powder compacts; holders for cosmetics; make-up removing appliances.

Contested goods in Class 3

The contested bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; non-medicated soaps; perfumery, essential oils, non-medicated cosmetics, non-medicated hair lotions; non-medicated dentifrices; body cleaning and beauty care preparations; make-up for the face and body; soaps for body care; bath preparations; deodorants for body care; skin, eye care and nail preparations; hair removal and shaving preparations; hair preparations and treatments are identical to the opponent’s bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices, either because they are identically contained in both lists (including synonyms) or because the opponent’s goods include, are included in, or overlap with the contested goods.

Contested goods in Class 8

The contested hand tools and implements; manicure and pedicure tools; nail clippers; nail scissors; nail files; nail buffers; hairdressing scissors; hair styling appliances; hair clippers for personal use; hair removing tweezers are identical to the opponent’s hand tools and implements (hand operated); cutlery; razors, either because they are identically contained in both lists (including synonyms) or because the opponent’s goods include, are included in, or overlap with the contested goods.

Contested goods in Class 21

The contested cosmetic brushes; cosmetic sponges; cosmetic utensils; cosmetic applicators; cosmetic powder compacts; holders for cosmetics; make-up removing appliances are identical to the opponent’s household or kitchen utensils and containers (not of precious metal or coated therewith); combs and sponges; brushes (except paint brushes); brush-making materials; materials for cleaning purposes, either because they are identically contained in both lists (including synonyms) or because the opponent’s goods include, are included in, or overlap with the contested goods.

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 average.

c) The signs

	KOVIRA
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 figurative mark, containing slightly stylised letters ‘C COVIRAN’ in green and red and a dot. None of the elements of this mark have a meaning for the relevant public and are, therefore, distinctive. It has no element that could be considered clearly more dominant than other elements.

The contested mark is a word mark. It does not have any meaning as a whole and has no identifiable component and is therefore distinctive in relation to the goods in question.

When signs consist of both verbal and figurative components, such as the earlier sign, then 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).

Visually, the signs coincide in letter sequence ‘OVIRA’. The marks differ in the first letters ‘C C’, and in the last letter ‘N’ and the stylisation elements of the earlier mark compared to the contested sign and the latter’s first letter K. However, it is noted, that in the case of the word marks it is the word that is protected and not its written form.

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

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‘OVIRA’. Even though the initial letter ‘C’ of the earlier sign, by virtue of its size, will not be overlooked, the relevant public will perceive it only as a graphical representation of the first letter of the word ‘COVIRAN’, and will probably refer to the sign as ‘COVIRAN’ rather than ‘C COVIRAN’. Consequently, the difference for this part of the relevant public lies only in ‘N’ of the earlier sign. For part of the public, the signs further differ in the sound of the initial letters ‘CC’/ ‘K’.

Therefore, the signs are aurally similar to at least, an average degree.

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 goods have been found to be identical.

The earlier mark and the contested sign have been found to be similar to the extent that they have the letters ‘OVIRA’ in common. The visual differences lie in the letters ‘C C’ and ‘N’, together with their stylisation, of the earlier sign, having no counterpart in the contested mark, and in letter ‘K’ of the contested sign.

The consideration that the consumers pay more attention to the beginning of the mark also cannot prevail in all cases and cannot, in any event, undermine the principle that an examination of the similarity of the signs must take account of the overall impression produced by those signs, since the average consumer normally perceives a sign as a whole and does not examine its individual details (27/06/2012, T‑344/09, Cosmobelleza, EU:T:2013:40, § 52).

However, these differences can be easily overlooked, and, in any event cannot outweigh the prevailing coinciding letters perceived by the public. Aurally, for part of the public, the signs coincide in the first letters ‘C’/‘K’, rendering them different only in respect of the last letter ‘N’, while for part of the public the signs also differ in the sound of the initial letters ‘CC’/ ‘K’.

The similarities between the signs are sufficient in the present case to cause at least part of the public to believe that the conflicting identical goods come from the same or economically linked undertakings.

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).

Account is taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks and the consumers may be easily confused because they will have to rely on the imperfect picture of the marks that they have kept in their mind (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

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

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 8 958 381. It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier right, EUTM No 8 958 381 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.

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

Marine DARTEYRE

Erkki MÜNTER

Anna BAKALARZ

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.