DECISION

of the Fifth Board of Appeal

of 19 November 2019

In case R 885/2019-5

HAUZ 1929
Unit 103 Westbourne Studios 242 Acklam Road London W10 5JJ United Kingdom	Applicant / Appellant

represented by LYBERIS, Strovolou Ave. 201, The Future Business Centre, 3rd floor, Office 301, 2049 Strovolos, Nicosia, Cyprus

v

Houzz, Inc.
285 Hamilton Ave., 4th Floor Palo Alto, California 94301 United States of America	Opponent / Defendant

represented by COOLEY (UK) LLP, Dashwood, 69 Old Broad Street, London EC2M 1QS, United Kingdom

APPEAL relating to Opposition Proceedings No B 3 050 140 (European Union trade mark application No 17 636 119)

The Fifth Board of Appeal

composed of G. Humphreys (Chairperson and Rapporteur), C. Govers (Member) and A. Pohlmann (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 22 December 2017, HAUZ 1929 (‘the applicant’) sought to register the figurative mark

for the following list of goods:

Class 20 - Furniture and furnishings; Beds, bedding, mattresses, pillows and cushions;

Class 24 - Textile goods, and substitutes for textile goods; Fabrics;

Class 27 - Carpets, rugs and mats; Floor coverings and artificial ground coverings.

2. The application was published on 18 January 2018.

3. On 17 April 2018, Houzz, Inc. (‘the opponent’) filed an opposition against the registration of the published trade mark application for all the above goods.

4. The grounds of opposition were those laid down in Article 8(1)(b) EUTMR.

5. The opposition was based on the following earlier rights:

1. EUTM registration No 15 938 434 for the word mark

HOUZZ

filed on 18 October 2016 and registered on 19 April 2017 for the following goods:

Class 11 - Lighting, lighting apparatus and fixtures, decorative lighting, lanterns, lamps, lamp stands and shades, all of the aforesaid made of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials;

Class 20 - Furniture; wooden furniture; bespoke furniture; household furniture; bedroom furniture; fitted furniture; upholstered furniture; furniture for use in bars, clubs and restaurants; office furniture; tables; chairs; cabinets; sofas; armchairs; coffee tables; footstools; chests; drawers; shelving; beds; bedside tables; wardrobes; kitchen units; kitchen furniture; dressers; cupboards; stools; racks; worktops; trays, not made of metal; boxes made of wood; dining tables; dining chairs; benches; dining cabinets; dining drawers; mirrors; picture frames; mattresses; box springs; pillows; slatted bed bases; mattress bases; divans; bedding; bolsters and cushions; goods of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother of pearl, meerschaum and substitutes for all these materials or of plastics, namely statues, figurines and works of art, ornaments and decorations, furniture and furnishings including beds, frames, mirrors, coat hangers, coat hooks and coat stands, baskets, barrels, casks, chairs, sofas, displays, stands and signage; parts and fittings for all the aforementioned goods.

2. UK trade mark registration No 3 191 907 for the word mark

HOUZZ

filed on 18 October 2016 and registered on 31 March 2017 for the following goods and services:

Class 20 - Furniture; wooden furniture; household furniture; bedroom furniture; fitted furniture; upholstered furniture; furniture for use in bars, clubs and restaurants; office furniture; tables; chairs; cabinets; sofas; armchairs; coffee tables; footstools; chests; drawers; shelving; beds; bedside tables; wardrobes; kitchen units; kitchen furniture; dressers; cupboards; stools; racks; worktops; trays; boxes made of wood; dining tables; dining chairs; benches; dining cabinets; dining drawers; mirrors; picture frames; mattresses; box springs; pillows; slatted bed bases; mattress bases; divans; bedding; bolsters and cushions; goods of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother of pearl, meerschaum and substitutes for all these materials or of plastics; parts and fittings for all the aforementioned goods;

Class 35 - Retail services connected with the sale of furniture, home furnishings, homewares, soft furnishings, textile goods, mirrors, picture frames, bed and table covers; operating an online marketplace for sellers and purchasers of consumer goods including home interior and exterior furnishings, products and accessories; promoting home design and decorating products of others by providing hypertext links to the web sites of others; promoting home design, decorating, and remodeling services of others by providing contact information and hypertext links to service provider's websites;

Class 40 - Bespoke furniture.

6. By decision of 26 February 2019 (‘the contested decision’), the Opposition Division allowed the opposition and refused the contested mark for all the contested goods on the grounds that there was likelihood of confusion. It gave, in particular, the following grounds for its decision:

• As the opposition is based on more than one earlier mark, the opposition will first be examined in relation to European Union trade mark registration No 15 938 434.

• The conflicting goods in Class 20 are identical;

• The contested ‘textile goods’ in Class 24 are similar to the earlier mark’s ‘bedding’ in Class 20 as they may have the same purpose and coincide in public and distribution channels. The contested substitutes for textile goods consist of goods made of non-textile materials, for example, from recycled plastic, used nowadays for manufacturing ‘eco/bio bedding’. Therefore, although they have a different nature they can have the same purpose and method of use. These goods are therefore similar to a low degree to the opponent’s ‘bedding’ in Class 20. Furthermore, they may coincide in relevant public and distribution channels. The contested ‘fabrics’ include textile fabrics that are materials used for the manufacture of finished textile goods for household purposes. They are considered similar to a low degree to the opponent’s bedding as they usually coincide in the relevant public and distribution channels;

• The contested ‘floor coverings and artificial ground coverings; carpets, rugs and mats’ in Class 27 are similar to the opponent’s ‘furniture’ as they share the same purpose as they are used to make a room or a building suitable for living, for working or to decorate it. They also target the same public through the same distribution channels;

• The goods are directed at the public at large and also at the professional public, such as manufacturers of textile goods. Their degree of attention is average;

• Visually, the signs coincide in the letters ‘H’, ‘U’ and ‘Z’ and their positions within the marks. However, they differ in the second ‘Z’, present only in the earlier mark, as well as the letters in second position, ‘O’ in the earlier mark replaced by an ‘A’ in the contested sign, and the element ‘EST 1929’ only present in the contested sign, The marks also differ in the stylisation of the contested sign, which is, however, purely decorative and of secondary importance. The signs are visually similar to an average degree;

• The earlier mark will be pronounced as /houz/ whereas the dominant element of the contested sign will be pronounced as /hauz/. The pronunciation thus differs in the sound of the letters ‘O’ and ‘A’ and the non-dominant elements ‛EST 1929’ of the contested mark, which has no counterpart in the earlier sign. Contrary to the applicant’s submissions, the last two letters of the earlier mark ‘zz’, will not allude to any onomatopoeic words such as ‘buzz’, ‘fizz’, etc. and they will be pronounced as a single letter ‘z’ by the relevant public. The signs are aurally similar to a high degree;

• Conceptually, the verbal elements ‘HOUZZ’ and ‘HAUZ’ may be perceived by a part of the relevant public as allusion to ‘house’ in English or Haus in German and, consequently may have some relationship with the relevant goods, which are mainly goods used for household purposes. The element ‘EST 1929’ of the contested sign may be understood by part of the public as the year of incorporation of the applicant, however the impact is rather limited taking into account that this is the non-dominant and less distinctive element in the contested sign. As the other sign has no meaning in the relevant territory, the signs are not conceptually similar;

• The distinctiveness of the earlier mark is normal;

• The goods of the contested sign have been found partly identical and partly similar to varying degrees to those of the earlier mark. They are directed at the public at large and at professionals, whose degree of attention is average. ‘HAUZ’ is the dominant element of the contested sign and the overall impressions of the marks give rise to an average degree of similarity and a high phonetic similarity. The additional elements ‘EST 1929’ of the contested sign play a secondary role due to their size and position within the sign;

• Considering all the above, there is a likelihood of confusion on the part of the Polish- and Bulgarian-speaking part of the public and the opposition is well founded. As European Union trade mark registration No 15 938 434 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 right invoked by the opponent.

7. On 22 April 2019, the applicant filed an appeal against the contested decision, requesting that the decision be entirely set aside. The statement of grounds of the appeal was received on 26 June 2019.

8. In its response received on 17 September 2019, the opponent requested that the appeal be dismissed.

Submissions and arguments of the parties

9. The arguments raised in the statement of grounds may be summarised as follows:

• The only goods in which the conflicting marks coincide are those in Class 20. The contested goods in Class 24 are not similar to the earlier marks’ ‘bedding’ in Class 20. Bedding, such as mattresses, bed bases and pillows, are clearly different from textile goods, ‘substitutes of textile goods’ and ‘fabrics’ included in Class 24. These goods neither have the same purpose, nor the same points of sale or distribution channels. Bedding such as mattresses, bed bases and pillows are often sold in specialised shops. Furthermore, these goods do not have the same usual origin (producer). Thus, the relevant consumer would not believe that the goods in question come from the same undertaking or economically-linked undertakings;

• Also, the contested goods ‘floor coverings and artificial ground coverings; wall and ceiling coverings; carpets, rugs and mats’ in Class 27 and the earlier marks ‘furniture’ in Class 20 are not similar. These goods neither have the same purposes or methods of use, nor the same sales outlets or distribution channels. The separate categories of goods are often sold in different specialised shops and do not have the same usual origin. Therefore, no likelihood of confusion as to the origin of the goods would occur;

• The average consumer’s degree of attention when purchasing the goods will be significantly above average, given the price, frequency of purchase, nature and the conditions under which these goods are selected. Furniture, furnishings, beds, bedding, for example mattresses, bed bases, bedsteads, pillows, textile goods etc. are expensive goods and they are bought to be kept for many years. In addition these goods can be selected based on the type and quality of the materials they are made of and the relevant public would not make an impulse purchase. In fact in some instances the consumer might seek professional assistance and advice when purchasing the goods as some can have a potential impact on health and well-being and some are technically sophisticated. Therefore, the general public as well as professionals will not confuse the conflicting marks;

• If, as the contested decision stated, the verbal element ‘HOUZZ’ might be perceived by the English-speaking part of the relevant public as an allusion to ‘house’, the same would have to be accepted for the Polish- and Bulgarian- speaking part of the public as well. The basic word ‘house’ may be understood throughout the European Union including the non-English-speaking Member States. As a result ‘HOUZZ’ possesses a less than average degree of distinctiveness for goods used for household purposes;

• The contested mark consists of two words ‘HAUZ’ and ‘EST’, composed of ten letters and the number ‘1929’. It differs, in length and structure, from the earlier mark which comprises one word ‘HOUZZ’ composed of five letters. Furthermore, in the contested mark ‘EST 1929’ is written in capital letters; it is clearly and easily legible; is placed in a central position and is closely linked to the word ‘HAUZ’;

• ‘HAUZ’ and ‘EST 1929’ are to be perceived as whole, consisting of words and numbers. This element ‘EST 1929’ has an impact on the overall impressive given by the contested mark and it is irrelevant whether it might be understood by part of the public as the applicant’s year of incorporation. ‘1929’ is a distinctive part of the EUTM since its does not give specific, direct or immediate information about the goods in question. It being understood as the applicant’s year of incorporation would entail further reflection; it could be connected with a year when a significant event took place for the applicant or its family or business. It may even be perceived as being totally arbitrary;

• Furthermore, the contested mark is figurative and the earlier mark is a word mark. The striking elements and stylisation in the contested mark will be recalled by the relevant consumer and these elements render it different, visually and conceptually, in an overall impression. Both marks ‘HOUZZ’ and ‘HAUZ’ (fig.) are short signs and the differences are clearly perceivable. In addition, the marks differ in their beginnings and endings. As a result, the marks are visually dissimilar;

• From a phonetic point of view, there are at least five different pronunciations of the earlier mark ‘HOUZZ’ compared to the single pronunciation of the letters ‘HAUZ’ of the applicant’s stylised mark ‘HAUZ EST 1929’;

• The numerous different pronunciations of the earlier marks make the aural recollection of them difficult, confusing and ambiguous. The consumer being uncertain as to how to pronounce the ‘HOUZZ’ element will more carefully examine it visually trying to find out how to pronounce it and will ultimately focus on its visual impression to recall it;

• In any event, the phonetic comparison between the signs here should have less importance because the relevant public for the goods concerned would not refer to the signs in question by their verbal elements because these goods are, in principal, examined visually;

• There are so many wide and varied conceptual differences between both marks that an ordinary consumer, who is neither too careful nor too careless, but reasonably circumspect, well-informed and observant would never be confused between the earlier word marks ‘HOUZZ’ and the figurative mark ‘HAUZ EST 1929’. The earlier marks have a strong conceptual association with sleep and the state of sleeping because of the double ‘ZZ’ present at the end of them. The earlier marks further distance themselves conceptually because of the very strong conceptual link with onomatopoeic words that all end with a double ‘zz’ letter sequence. As a result the overall impression conveyed by the contested EUTM is clearly dissimilar to the one conveyed by the earlier marks;

• There will be no likelihood of confusion for the relevant public, even for identical goods as the average consumer would pay a higher degree of attention and in several instances will seek professional assistance and advice before purchasing the goods in question due to their price, the fact that they are bought to be kept for many years, even for a lifetime, the potential impact on his/her health and well-being and the fact that these may be technically sophisticated. Furthermore, the goods are also addressed to professional consumers who have special knowledge or experience in relation to the specific goods;

• The opponent is not a retailer of soft furnishing goods to consumers in Europe, but the marks are merely used on websites. The applicant uses its trade mark on retail stores. Examples of actual use of the contested mark are enclosed. They prove that the marks have coexisted in the relevant marketplace for several years without any incidences of actual confusion. Their peaceful co-existence is a persuasive argument in favour of the absence of a likelihood of confusion.

10. The arguments raised in response may be summarised as follows:

• The applicant has not contested the fact that the conflicting goods in Class 20 are identical;

• Regarding Class 24, the contested ‘fabrics, textile goods, and substitutes for textile goods’ are similar to the opponent’s ‘bedding’ in Class 20 in that they are complementary and can coincide in producer, distribution channels and end-user. The similarity of these types of goods has been found in previous Opposition Division decisions: B 2 195 165, B 1 195 346 and B 1 317 090;

• The contested goods in Class 27 were found similar to the earlier marks’ ‘furniture’ in Class 20 and this has been confirmed by previous Opposition Decisions: B2 917 311 and B 2 588 708;

• The relevant goods will be directed at the public at large and it is unlikely that the average consumer will be in a position to recollect that the contested ‘HAUZ’ sign and the earlier EUTM for ‘HOUZZ’ differ;

• Neither ‘house’ nor ‘HOUZZ’ can be suggestive of the goods only because they may be used within a house. Such a position would result in the fallacy that ‘house’ is suggestive of, for example, computers in Class 9 or cosmetics in Class 3, purely because such goods may be found within a house;

• The earlier mark ‘HOUZZ’ has no meaning in relation to any of the goods for which it is registered and accordingly the ‘HOUZZ’ mark is highly distinctive in relation to the goods covered by the EUTM registration. This mark could not be determined as enjoying enhanced distinctiveness as no evidence was filed to prove this claim during the opposition proceedings;

• What should be borne in mind are the distinctive and dominant elements of the relevant marks. No convincing argument has been provided to support the argument why the element ‘EST 1929’ would have an equal degree of distinctiveness as the word element ‘HAUZ’. The element ‘EST 1929’ would not have any meaning and the consumer in the European Union would recognise ‘1929’ as a reference to a significant year for the applicant whether as the year of incorporation or otherwise. In any event the contested decision stated that the impact of this element ‘EST 1929’ would be limited due to its position and size;

• The element ‘HAUZ’ of the contested sign is the dominant element of the mark and that dominant element is visually similar and aurally highly similar to the earlier mark ‘HOUZZ’ leading to a finding of a likelihood of confusion;

• There is no conceptual association between the earlier marks and sleeping as a result of the use of ‘zz’ at the end of the marks. The letters ‘zz’ at the end of ‘HOUZZ’ do not allude to onomatopoeic words such as ‘buzz’ or ‘fizz’ and furthermore ‘zzz’ is not a word, much less an onomatopoeic word;

• There is only one unambiguous pronunciation of the word ‘HOUZZ’ and the mark ‘HOUZZ’ is a portmanteau of the words ‘house’ and ‘buzz’ and therefore may only be pronounced as ‘HOW-ZZ’ in the same way as ‘HAUZ’;

• The applicant has not provided any evidence that the relevant public has distinguished between the contested sign and the earlier mark ‘HOUZZ’ without any confusion occurring. As a result, the actual use of the contested sign ‘HAUZ’ is irrelevant to these proceedings and it is respectfully requested that such evidence be disregarded by the Boards of Appeal;

• It is inevitable that the relevant public will connect the contested mark ‘HAUZ’ with the earlier trade mark ‘HOUZZ’ and draw the erroneous conclusion that the goods they cover emanate from the same or economically-linked undertakings, as a result there is a likelihood of confusion;

• The appeal should be rejected, the contested decision upheld and the opponent should be awarded the costs.

Reasons

11. All references made in this decision should be seen as references to the EUTMR (EU) No 2017/1001 (OJ 2017 L 154, p. 1), codifying Regulation (EC) No 207/2009 as amended, unless specifically stated otherwise in this decision.

12. The appeal complies with Articles 66, 67 and Article 68(1) EUTMR. It is admissible.

Confidentiality request

13. The Board notes that the applicant marked its submissions and evidence filed on appeal as being confidential.

14. In accordance with Article 114(4) EUTMR, files may contain certain documents which are excluded from public inspection, e.g. parts of the file which the party concerned showed a special interest in keeping confidential.

15. In the event that a special interest in keeping a document confidential in accordance with Article 114(4) EUTMR is invoked, the Office must check whether a special interest is sufficiently shown. Such a special interest must exist because of the confidential nature of the document or its status as a trade or business secret.

16. In the present case, the applicant has not given any reasons as to why Article 114(4) EUTMR would be applicable with respect to its submissions.

17. Indeed, most of the documents filed (except for an agreement in which sensitive parts have been removed anyway) do not contain any data or information having a prima facie confidential nature. Likewise, the Board has not found any indication in the statement of grounds that could justify the existence of a special interest (31/01/2008, R 966/2007-2, MAKO (fig.) / MALO, MALO (fig.), § 11-13; 03/03/2008, R 429/2007-2, KINDERMEDIA KINDERMEDIA (fig.) / KINDER et al., § 22-24).

18. It follows that the confidentiality request cannot be accepted.

Article 8(1)(b) EUTMR

19. Article 8(1)(b) EUTMR provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with or similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.

20. The risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion within the meaning of that article (see 11/11/97, C-251/95, Sabèl, EU:C:1997:528, § 16-18; 29/09/98, C‑39/97, Canon, EU:C:1998:442, § 30). The likelihood of confusion is to include the likelihood of association with the earlier trade mark.

21. The Board will follow the Opposition Division’s approach and will start by examining the likelihood of confusion by reference to the earlier EUTM.

Comparison of the goods and services

22. The Board recalls that the assessment of the similarity of the goods and services must take into account all relevant factors, which include their nature, their purpose and method of use, and whether they are in competition with each other or complementary (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 23). Other factors may also be taken into account such as, for example, the distribution channels of the goods concerned (11/07/2007, T-443/05, Piranam, EU:T:2007:219, § 37).

23. Goods or services which are complementary are those where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking. That implies that complementary goods or services can be used together, which presupposes that they are intended for the same public (12/07/2012, T-361/11, Dolphin, EU:T:2012:377, § 48 and the case-law cited therein).

24. The reference point is whether the relevant public will perceive the goods or services concerned as having a common commercial origin (04/11/2003, T-85/02, Castillo, EU:T:2003:288, § 38) and whether consumers consider it normal that the goods or services are marketed under the same trade mark, which normally implies that a large number of producers or providers are the same (11/07/2007, T-150/04, Tosca Blu, EU:T:2007:214, § 37).

25. The goods applied for which are at issue in the present appeal are the following:

Class 20 - Furniture and furnishings; Beds, bedding, mattresses, pillows and cushions;

Class 24 - Textile goods, and substitutes for textile goods; Fabrics;

Class 27 - Floor coverings and artificial ground coverings; Carpets, rugs and mats.

26. The goods on which the opposition is based are:

Class 11 - Lighting, lighting apparatus and fixtures, decorative lighting, lanterns, lamps, lamp stands and shades, all of the aforesaid made of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials;

Class 20 - Furniture; wooden furniture; bespoke furniture; household furniture; bedroom furniture; fitted furniture; upholstered furniture; furniture for use in bars, clubs and restaurants; office furniture; tables; chairs; cabinets; sofas; armchairs; coffee tables; footstools; chests; drawers; shelving; beds; bedside tables; wardrobes; kitchen units; kitchen furniture; dressers; cupboards; stools; racks; worktops; trays, not made of metal; boxes made of wood; dining tables; dining chairs; benches; dining cabinets; dining drawers; mirrors; picture frames; mattresses; box springs; pillows; slatted bed bases; mattress bases; divans; bedding; bolsters and cushions; goods of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother of pearl, meerschaum and substitutes for all these materials or of plastics, namely statues, figurines and works of art, ornaments and decorations, furniture and furnishings including beds, frames, mirrors, coat hangers, coat hooks and coat stands, baskets, barrels, casks, chairs, sofas, displays, stands and signage; parts and fittings for all the aforementioned goods.

27. The applicant has not contested the identity between the contested goods in Class 20 and the opponent’s goods. This finding has to be confirmed on the basis of the wording of both lists of goods.

28. Regarding the contested goods in Class 24 (‘textile goods, and substitutes for textile goods; fabrics’), it has to be observed that the earlier goods include in particular ‘pillows, bedding, bolsters and cushions’. These goods are in fact various categories of ‘textile goods, and substitutes for textile goods’. Therefore, they are included, or at least are similar, to the opponent’s goods. The contested ‘fabrics’ are raw materials used for the manufacture of textile goods, including ‘pillows, bedding, bolsters and cushions’. As these can either be purchased as ready-made, or ordered to be custom-made (of a specific fabric, in a particular size) goods, they are aimed at the same public and may be in competition as the consumer may select a ready-made item or a custom-made bolster or cushion. These goods may also coincide in their distribution channels. Consequently, these goods are considered similar to a low degree.

29. The contested goods in Class 27 (‘floor coverings and artificial ground coverings; carpets, rugs and mats’) are similar to an average degree to the opponent’s ‘furniture’. All these goods serve the purpose of interior decoration, are aimed at the same public and are often purchased to match and can be found in the same outlets.

Relevant public

30. The goods at issue are aimed at the average consumer. The level of attention of the relevant public will vary from average to slightly above average, depending on the price of the product, which may vary from relatively low in the case of a basic piece of furniture (a shelf or an end table) to a relatively expensive one (a wardrobe or sofa).

31. The Board considers that the relevant public’s level of attention is likely to be higher in relation to ‘bed’, ‘mattresses’ and ‘floor coverings and artificial ground coverings’. These items are always likely to be selected carefully and are not purchased on daily basis. However, as the remaining goods (furniture and furnishings; pillows and cushions; textile goods, and substitutes for textile goods; fabrics; carpets, rugs and mats) also include items where no higher level of attention is required. Therefore, it is considered that the level of attention towards these contested goods will be that of a reasonably well-informed and reasonably observant and circumspect consumer.

32. The relevant territory is the European Union.

Comparison of the signs

33. The signs to be compared are:

    HOUZZ
    Earlier sign	Contested sign

34. The contested sign consists of a stylised word ‘HAUS’, with ‘EST 1929’ written below it in a significantly smaller font. The earlier sign is the word mark ‘HOUZZ’.

35. The signs coincide in the letters ‘H-UZ’ and differ in their second letters (‘O’ / ‘A’), the additional letter ‘Z’ at the end of the earlier sign, the elements ‘EST 1929’ of the contested sign and its stylisation. It has to be noted that the overall stylisation of the contested sign highlights the word ‘HAUZ’ because of the font size and the bold style. The signs are visually similar to a low degree in view of similarities between ‘HOUZZ’ and ‘HAUZ’ (i.e. both having the identical letters ‘H-UZ’ in the same sequence, both being identical in their first and last letters and being of a similar length).

36. Aurally, depending on the language, the earlier sign may be pronounced as /hauz/ or /HOUZ/. The contested sign will be pronounced as /hauz/est 1929/. In view of very similar or, in some cases even the identical pronunciation of ‘HOUZZ’ and ‘HAUZ’, there is a high degree of aural similarity between the conflicting signs.

37. Conceptually, a significant part of the public in the European Union may associate the words ‘HOUZZ’ and ‘HAUZ’ with ‘house’, despite the misspelling. Indeed, this is a basic English word (also similar to the German word HAUS). However, especially in view of the misspelling, there will also be a significant part of consumers, who are not used to using English or German, who will perceive these terms as meaningless. The signs are thus conceptually similar for consumers using English or German and the conceptual comparison remains neutral as regards the public who rarely comes into contact with these languages and has little or no knowledge of them. According to settled case-law, as a general rule, average consumers cannot be assumed to have knowledge of foreign languages (14/11/2017, T-129/16, Claranet, EU:T:2017:800, § 84; 25/06/2008, T‑36/07, Zipcar, EU:T:2008:223, § 45).

38. The element ‘EST 1929’ included in the contested sign may be perceived as the year of establishment of the applicant’s company, however due to its size the impact will be limited. As the earlier mark has no meaning for the public in the relevant territory, the marks are not conceptually similar.

Distinctive character of the earlier mark

39. The opponent did not explicitly claim that its earlier mark has acquired reputation or is particularly distinctive by virtue of intensive use. Consequently, the assessment of the distinctiveness of the earlier mark will rest on its inherent distinctiveness.

40. The earlier mark is considered to have a weak distinctive character for the English- and German-speaking public as well as for other consumers having a good command of these languages as they are likely to recognise the reference to ‘HOUSE’ in the earlier mark. As the goods at issue are mainly aimed for house decoration, the word ‘HOUSE’ alludes to their function.

41. However, for the public who is unlikely to recognise the reference to ‘HOUSE’ in ‘HOUZZ’, notably the Polish- and Bulgarian-speaking public, the earlier mark is considered to possess a normal degree of distinctive character. Even if the term ‘house’ is known throughout the European Union as it is a part of a basic English vocabulary, it cannot be assumed that ‘HOUSE’ will be easily recognised in ‘HOUZZ’ by the public for whom ‘HOUSE’ is a foreign word.

Overall assessment of the likelihood of confusion

42. According to established case-law, the likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 16; 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18).

43. That global assessment implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between the goods or services covered. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa.

44. In the present case, the conflicting goods are identical and similar to various degrees. The earlier mark has a normal degree of distinctive character for the Polish- and Bulgarian-speaking part of the public. The signs are visually similar to a low degree and aurally similar to a high degree. The Board finds that, applying the interdependence principle, there is a likelihood of confusion for the relevant public, as regards the identical goods i.e. the contested goods in Class 20. This applies even to ‘beds’ and ‘mattresses’ where the level of attention of the relevant public is higher than average. The Board also recalls that 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).

45. The Board observes that a lower degree of visual similarity is offset here by the identity between the conflicting goods. In addition, the signs are aurally similar to a high degree. While the goods at issue are usually sold in shops or department stores where consumers choose the goods relying on the image of the trade mark applied to the goods, the aural aspect remains equally relevant in assessing the likelihood of confusion in the case at hand, and the aural similarity cannot be disregarded (see, by analogy, 23/09/2009, T‑99/06, Fildor, EU:T:2009:346, § 81; 15/01/2003, T‑99/01, Mystery, EU:T:2003:7, § 48). It cannot be excluded that the contested goods are referred to aurally, for example when asking a salesperson for advice and information or making telephone inquiries regarding these goods. In addition, consumers may be prompted to choose the goods in response to television or radio advertisements or because they have heard of them being spoken about, in which case they might retain the phonetic impression of the mark in question. In any event, the signs are also similar visually, albeit to a low degree.

46. In addition, it has to be observed that a likelihood of confusion covers situations where consumers directly confuse the trade marks themselves, or where consumers make a connection between the conflicting signs and assume that the goods/services covered are from the same or economically-linked undertakings. It cannot be excluded that in view of the similar element ‘HAUZ’ / ‘HOUZZ’, consumers may assume that the contested mark denotes a new line of ‘HOUZZ’ in house decoration (06/10/2004, T-117/03 – T 119/03 & T-171/03, NL, EU:T:2004:293, § 51). The likelihood of confusion exists for the part of the relevant public who rarely comes into contact with English or German, in particular the Polish- and Bulgarian-speaking public.

47. This conclusion is not affected by the applicant’s claim of the peaceful coexistence between the marks. While the applicant filed certain examples of the use of its mark, there is no evidence showing that consumers in the relevant territory are confronted with both trade marks and are aware that they belong to different undertakings. Therefore, this claim has not been substantiated.

48. The Board finds, however, that there is no likelihood of confusion regarding the goods which are only similar to the earlier goods. Considering that the signs are only visually similar to a low degree, their aural similarity is not sufficient to lead to a likelihood of confusion regarding similar goods or those which are only similar to a low degree.

49. There is no need to examine the opposition by reference to the earlier UK trade mark as the goods and services covered by this registration do not cover any goods identical to the contested goods in Classes 24 or 27. The comparison with Class 35 could, at most, result in some similarity, however it is insufficient to find a likelihood of confusion.

50. In view of the foregoing, the contested decision is annulled in so far as it allowed the opposition and rejected the contested application for goods in Classes 24 and 27. The application may proceed for these goods.

51. The appeal is dismissed for the remainder and the contested application is rejected for goods in Class 20.

Costs

52. Pursuant to Article 109(3) EUTMR, where each party succeeds on some and fails on other heads, the Boards of Appeal shall decide a different apportionment of costs. As the appeal is successful in part, it is appropriate to order that each party bears its own costs in the appeal proceedings.

53. As to the costs of the opposition proceedings, it is appropriate that, for the same reasons, each party bears its own costs there as well.

Order

On those grounds,

THE BOARD

hereby:

1. Annuls the contested decision to the extent that the application was rejected for the goods in Classes 24 and 27;

2. Rejects the opposition for these goods;

3. Dismisses the appeal in the remainder;

4. Orders each party to bear its own costs of the appeal and opposition proceedings.

Signed G. Humphreys

Signed C. Govers

Signed A. Pohlmann

Registrar: Signed H.Dijkema