OPPOSITION No B 3 050 011

Hippoland AD, Region Pancharevo, Kazitchene, Industrialna zona, 5, “3-ti mart” str., null, Sofia, Bulgaria (opponent), represented by IP Consulting Ltd., 6-8, Mitropolit Kiril Vidinski Str., entr. 8, floor 2, office 2, 1164, Sofia, Bulgaria (professional representative)

a g a i n s t

The Ida P Company AB, Skeppargatan 8, 5 tr 114 52, Stockholm, Sweden (applicant), represented by Ramberg Advokater KB, P.O. Box 3137 Jakobsbergsgatan 13, 6 tr

103 62 Stockholm, Sweden (professional representative).

On 14/06/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 050 011 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 563 222, ‘Happyland’, namely against all the goods and services in Classes 16, 25, 28 and 41. The opposition is based on European Union trade trade mark registration No 14 709 711, ‘hippoland.net’, European Union trade trade mark registration No 11 639 879, ‘Hippoland’, and European Union trade trade mark registration No 11 319 159 . 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 11 639 879, ‘Hippoland’.

a) The goods and services

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

Class 28: Games and playthings; Gymnastic and sporting articles not included in other classes; Decorations for Christmas trees; Climbers' harness; Tennis ball throwing apparatus; Conjuring apparatus; Clay pigeon traps; Arcade video game machines; Scent lures for hunting or fishing; Play balloons; Trampolines; Baseball gloves; Dolls' feeding bottles; Billiard markers; Billiard tables; Coin-operated billiard tables; Billiard balls; Billiard cues; Bob-sleighs; Body boards; Punching bags; Boxing gloves; Bowling apparatus and machinery; Rackets; Wax for skis; Gut for rackets; Gut for fishing; Waterskis; Creels [fishing traps]; Rods for fishing; Air pistols [toys]; Fairground ride apparatus; Billiard cue tips; Appliances for gymnastics; Machines for physical exercises; Exercisers [expanders]; Bar-bells; Clay pigeons [targets]; Checkers [games]; Darts; Hang gliders; Detonating caps [toys]; Rocking horses; Controllers for game consoles; Discuses for sports; Radio-controlled toy vehicles; Dominoes; Rattles [playthings]; Checkerboards; Electronic targets; Counters [discs] for games; Dice; Ninepins; Amusement machines, automatic and coin-operated; Gaming machines for gambling; Toys; Toys for domestic pets; Toy masks; Games; Board games; Apparatus for games; Horseshoe games; Divot repair tools [golf accessories]; Kaleidoscopes; Bags especially designed for skis and surfboards; Sole coverings for skis; Bells for Christmas trees; Caps for pistols [toys]; Playing cards; Skittles; Shin guards [sports articles]; Weight lifting belts [sports articles]; Christmas trees of synthetic material; Roulette wheels; Rollers for stationary exercise bicycles; Toy vehicles; Rosin used by athletes; Confetti; Lines for fishing; Strings for rackets; Dolls; Ice skates; Dolls' houses; Dolls' beds; Flying discs [toys]; Bows for archery; Swings; Mah-jong; Reels for fishing; Kite reels; Teddy bears; Puppets; Tables for table tennis; Tables for indoor football; Camouflage screens [sports articles]; Masts for sailboards; Video game machines; Stuffed toys; Targets; Butterfly nets; Nets for sports; Tennis nets; Paintballs [ammunition for paintball guns] [sports apparatus]; Water wings; Knee guards [sports articles]; Elbow guards [sports articles]; Edges of skis; Dolls' clothes; Quoits; Ring games; Skating boots with skates attached; Paragliders; Pachinkos; Piñatas; Paintball guns [sports apparatus]; Toy pistols; Floats for fishing; Flippers for swimming; Bladders of balls for games; Bite indicators [fishing tackle]; Swimming pools [play articles]; Swimming jackets; Plush toys; Mobiles [toys]; Swimming kick boards; Swimming belts; Sling shots [sports articles]; Protective paddings [parts of sports suits]; Portable games with liquid crystal displays; Hunting game calls; Archery implements; Poles for pole vaulting; Spinning tops [toys]; Jigsaw puzzles; Slides [playthings]; Surfboard leashes; Ski bindings; Harness for sailboards; Fish hooks; Landing nets for anglers; Fishing tackle; In-line roller skates; Roller skates; Batting gloves [accessories for games]; Golf gloves; Gloves for games; Parlor games; Ascenders [mountaineering equipment]; Soap bubbles [toys]; Candle holders for Christmas trees; Scale model kits [toys]; Skateboards; Skis; Scratch cards for playing lottery games; Slot machines [gaming machines]; Snowshoes; Snowboards; Artificial snow for Christmas trees; Dolls' rooms; Starting blocks for sports; Stationary exercise bicycles; Golf clubs; Christmas tree stands; Building games; Building blocks [toys]; Lures for hunting or fishing; Artificial fishing bait; Scrapers for skis; Men's athletic supporters [sports articles]; Sailboards; Surf boards; Surf skis; Backgammon games; Bingo cards; Theatrical masks; Chalk for billiard cues; Shuttlecocks; Playing balls; Balls for games; Snow globes; Marbles for games; Spring boards [sports articles]; Scooters [toys]; Seal skins [coverings for skis]; Novelties for parties, dances [party favors, favours]; Ornaments for Christmas trees, except illumination articles and confectionery; Scale model vehicles; Billiard table cushions; Body-building apparatus; Fencing masks; Fencing weapons; Fencing gloves; Cosaques [toy fireworks]; Harpoon guns [sports articles]; Paper party hats; Kites; Hockey sticks; Golf bags, with or without wheels; Cricket bags; Cups for dice; Chips for gambling; Bite sensors [fishing tackle]; Chessboards; Chess games; Practical jokes [novelties]; Sleighs [sports articles]; Twirling batons.

The contested goods and services are the following:

Class 16: Printed matter; Newspapers; Periodicals; Magazines [periodicals]; Daily newspaper; Periodicals; Printed publications; Promotional publications; Prospectuses; Pamphlets; Comic books; Books; Manuals [handbooks]; Directories; Photographs; Posters; Prints; Paintings; Vehicle bumper stickers; Art pictures; Picture books; Book covers; Brochures; Paperboard; Graphic reproductions; Graphic representations; Bags [envelopes, pouches] of paper or plastics, for packaging; Calendars; Stationery; Writing instruments; Pens; Pencils; Greeting cards; Writing materials; Memorandum books; Boxes of cardboard or paper; Teaching materials [except apparatus]; Educational equipment; Paper; Paper banners; Party stationery; Paper bags; Stickers [stationery]; Rub down transfers; Stickers [stationery]; Cardboard badges; Transparencies [stationery]; Envelopes [stationery]; Paper party bags; Paper bags and sacks; Artists' materials; Plastic envelopes; Folders [stationery]; Tear-off calendars; Folders for papers; Elastic bands for offices; Scrapbooks; Files [office requisites]; Self-adhesive tapes for stationery use; Adhesives for stationery; Paper tapes; Blank paper computer tapes for recording programs; Pencil holders; Pencil leads; Pads [stationery]; Paperweights; Desk trays; Writing paper; Bookends; Office requisites; Writing or drawing books; Stapling presses [office requisites]; File cards; Bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; Adhesives for stationery; Catalogues; Hygienic paper; Wrapping paper; Postcards; Erasing shields; Scrapers [erasers] for offices; Writing instruments; Rubber erasers; Pen boxes; Inkstones; Pencil lead holders; Writing books; Writing cases [sets]; Writing tablets; School supplies [stationery]; Pencil sharpeners; Pencil sharpeners, electric or non-electric; Stamps; Ink pads; Ink; Drawing materials; Sketch pads; Printed advertisements; Temporary tattoos; Iron-on transfers; Adhesive transfers.

Class 25: Clothing; Shoes; Caps [headwear]; Hats; Sandals and beach shoes; Half-boots; Athletics shoes; Baseball caps; Visors [headwear]; Shawls [from tricot only]; Shawls and stoles; Shawls and headscarves; Neck scarves [mufflers]; Boots; Neckties; Bowties; Neck scarves; Scarves; Parkas; Suits; Swimming costumes; Baby clothes; Children's wear; Ladies' clothing; Swimming trunks; Robes; Swimming caps; Bath sandals; Mountaineering boots; Outerclothing; Waterproof outerclothing; Weather resistant outer clothing; Walking breeches; Walking shoes; Walking shoes; Climbing boots [mountaineering boots]; Wind pants; Wind suits; Windshirts; Balaclavas; Wind vests; Windproof clothing; Wet suits for windsurfing; Cagoules; Unitards; Tights; Body stockings; Brassieres; Coats; Mittens; Leisurewear; Belts [clothing]; Snowboard shoes; Walking shoes; Hunting boots; Gloves [clothing]; Slippers; Jumpers; Shirts; Briefs; Suspenders; Hats; Jackets [clothing]; Denim jeans; Stuff jackets [clothing]; Skull caps (headgear); Hoods [clothing]; Sweaters; Gowns; Ready-to-wear clothing; Combinations [clothing]; Corsets, collars; Costumes; Lingerie; Leg warmers; Corsets; Bathing wraps; Cap peaks; Muffs [clothing]; Overalls; Outdoor clothing; Petticoats; Turtleneck shirts; Pyjamas; Cyclists' clothing; Rainwear; Skirts; Sandals; Breeches; Low shoes; Ski boots; Ski trousers; Clothing for skiing; Ski anoraks; Ski shirts; ski overalls; Socks; Casual shirts; Athletic shoes; Sportswear; Lace boots; Esparto shoes; Beachwear; Beach shoes; Sweat-absorbent stockings; Tights; Pockets for clothing; Knitwear [clothing]; Singlets; Tee-shirts; Topcoats; Uniforms; Sweat-absorbent underwear; Vests, waistcoats; Underwear; Hosiery.

Class 28: Games; Toys; Gymnastic and sporting articles; Decorations for Christmas trees; Trampolines; Water toys; Bags specially adapted for sports equipment; Electronic games; Hand-held units for playing electronic games; Computer game apparatus; Fairground and playground apparatus; Mechanical games; Counters for games; Toy action figurines; Practical jokes [novelties]; Games (Apparatus for -); Electric action toys; Video game apparatus; Stuffed toy animals; Balloons; Ride-on toys; Dolls; Electronic hand-held game units; Free-standing video games apparatus; Puzzles; Soccer balls; Baseball balls; Basketballs; Swimming floats for recreational use; Flippers for swimming; Decorations for Christmas trees; Arcade video game machines; Amusement game machines; Dice; Controllers for game consoles; Bags specially adapted for handheld video games; Hand-held electronic video games; Battery-powered computer game with LCD screen.

Class 41 Fan club services; Amusement and theme park services; Entertainment in the nature of an amusement park ride; Amusement park services; Provision of on-line computer games; Production of plays; Production of music; Publishing services; Sporting and cultural activities; Entertainment; Providing of training; Education; Provision of entertainment facilities; Providing electronic publications; Production of cinematographic films; Cinema presentations; Provision of multimedia entertainment programs by television, broadband, wireless and on-line services; Laser show services [entertainment]; Fan club services (entertainment); Provision of on-line entertainment; Conducting of entertainment activities; Online interactive entertainment; Provision of entertainment information via television, broadband, wireless and on-line services; Providing interactive multi-player computer games via the internet and electronic communication networks; Information relating to computer gaming entertainment provided online from a computer database or a global communication network; Game services provided by means of communications by computer terminals or mobile telephone; Multimedia publishing of electronic publications; Organization of electronic game competitions; Internet games (non-downloadable); Providing on-line electronic publications, not downloadable; Publication of texts and images, including in electronic form, except for advertising purposes; Arranging, conducting and organisation of concerts; Arranging of visual and musical entertainment; Education, entertainment and sports; Publishing of stories; Publication of printed matter; Publication of texts; Publishing of electronic publications; Publication of electronic books and journals on-line; Music publishing and music recording services; Publishing services for books and magazines; Publication of electronic books and journals on-line; Publication of electronic books and journals on-line; Live band performances; Arranging of visual entertainment; Musical entertainment; Provision of recreational events; Providing recreational areas in the nature of play areas for children; Entertainment services in the nature of an amusement park show; Amusement centers; Production of shows; Video entertainment services; Computer and video game amusement services; Providing on-line information in the field of computer gaming entertainment; Theme park services; Theatre entertainment; Theater production; Adventure playground services; Provision of games by means of a computer based system; Providing games; Performing of music and singing; Children's adventure playground services; Electronic game services provided by means of the internet; Electronic game services and competitions provided by means of the internet; Amusement park services; Entertainment services; Amusement park and theme park services; Electronic games services provided from a computer database or by means of the internet; Electronic games services, including provision of computer games on-line or by means of a global computer network; Entertainment services in the form of television programmes; Entertainment services in the form of motion pictures; Entertainment services in the form of cinema performances; Provision of entertainment services through the media of television; Electronic online publication of periodicals and books; Organisation of games and competitions; Arrangement of conferences for educational purposes; Arrangement of conferences for recreational purposes; Exhibition services for entertainment purposes; Conducting of exhibitions for entertainment purposes; Entertainment services relating to competitions; Organization of competitions; Arranging of contests; Organising of entertainment competitions; Musical education services; Music publishing services; Music publishing services; Music performances; Recording of music; Live band performances; Arranging of music performances; Presentation of musical concerts; Arranging of musical events; Music recording studio services; Sports and fitness; Education services relating to computer systems; Training in the operation of computerised systems; Sporting and recreational activities; Services for the production of entertainment in the form of film; Animation production services; Creating animated cartoons; Production of animated programmes for use on television and cable; Audio, film, video and television recording services.

Some of the contested goods are identical or similar to goods on which the opposition is based, for example trampolines and dolls are identically contained in both lists (Class 28). For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above. The examination of the opposition will proceed as if all the contested goods and services were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 deemed to be identical are directed at the public at large.

The degree of attention is considered to be average.

c) The signs

Hippoland	Happyland
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).

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

According to established case-law, consumers, when perceiving a verbal sign, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58).

The contested sign begins with the word ‘HAPPY’. This word is considered to be a part of basic English vocabulary (15/07/2015, T‑352/14, HAPPY TIME / HAPPY HOURS, EU:T:2015:491, § 39). Therefore, it is likely to be recognised as an English word and understood by the relevant consumer throughout the relevant territory in accordance with its English definition. This word is somewhat laudatory by nature as it suggests satisfaction (given by the goods); its distinctiveness is diminished accordingly. The remaining element, ‘land’, is meaningless and distinctive to a normal degree for part of the public, and non-distinctive for that part of the public who understand the English word according to its definition as an area used for a particular purpose or a region, as it will simply be perceived as the place or space where the marketed goods are sold.

The element ‘HIPPO’ of the earlier mark is the short form of the word for a hippopotamus (wild animal) and will be understood as such by a significant part of the public. It has no direct meaning in relation to the goods deemed to be identical and is, therefore, distinctive. The same public will understand the remaining letters as the meaningful English word ‘land’ and will see this element as non-distinctive for the same reason as indicated above. For the rest of the public, who will not perceive any meaningful elements capable of being dissected, the earlier mark ‘hippoland’ is a meaningless word and therefore distinctive.

Being word marks, there are no dominant elements. However, as correctly noted by the applicant, 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, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Visually and aurally, the signs coincide in ‘land’ which, for part of the public, is a non-distinctive word, located toward the end of the marks. The remaining public will perceive it as a distinctive element placed after a weak element in the contested sign. However, this same public will not recognise this letter string as being a unit in the earlier mark, but instead will see and pronounce the letters as part of a longer, meaningless word.

As the signs only coincide in irrelevant aspects, whereby either the coinciding letters are not perceptible as a separate element but hidden in one of the signs, or the signs only coincide in a non-distinctive element, it is concluded that the signs are not visually or aurally similar.

Conceptually, the signs are not similar. Although the coinciding letter string ‘land’ will evoke a concept for that part of the public that sees it as a meaningful element in both signs, it is not sufficient to establish any conceptual similarity, as this element is non-distinctive and cannot indicate the commercial origin. The attention of the relevant public will be attracted by the additional verbal elements, one of which (‘HAPPY’) has a meaning. Therefore, the signs are not similar conceptually.

As the signs merely coincide in irrelevant aspects, they are dissimilar.

d) Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the signs is a condition for a finding of likelihood of confusion. Since the signs are dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

The remaining signs, European Union trade mark registration No 14 709 711, ‘hippoland.net’, which has an added (albeit non-distinctive) element, and European Union trade mark registration No 11 319 159, , a figurative mark which features highly stylised Cyrillic letters (meaning hippo) and a green hippopotamus standing on its hind legs, have even less in common with the contested sign. Therefore, the outcome cannot be any different, no likelihood of confusion exists with respect to those earlier marks.

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

Riccardo RAPONI

Keeva DOHERTY

Justyna GBYL

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.