OPPOSITION No B 3 054 643

Loewe S.A., Calle Goya 4, 28001, Madrid, Spain (opponent), represented by Preu Bohlig & Partner Rechtsanwälte MBB, Leopoldstr. 11a, 80802, München, Germany (professional representative)

a g a i n s t

Aura Migge, Rotlintstraße 86, 60389, Frankfurt, Germany (applicant), represented by Christoph Friedrich Jahn, Rothenburg 41, 48143, Münster, Germany (professional representative).

On 14/05/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 054 643 is upheld for all the contested goods and services.

2. European Union trade mark application No 17 685 711 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 and services of European Union trade mark application No 17 685 711 . The opposition is based on European Union trade mark registration No 357 640 ‘AURA LOEWE’. The opponent invoked Article 8(1)(a) and (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.

a) The goods and services

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

Class 3: Soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices.

The contested goods and services are the following:

Class 3: Cosmetics; cosmetics; hair preparations and treatments; toiletries.

Class 44: Hygienic and beauty care.

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.

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.

Contested goods in Class 3

Cosmetics are identically included in both lists of goods while the remaining contested goods are contained in, or overlap with, cosmetics of the opponent. Therefore, all the contested goods are identical to the opponent’s cosmetics.

Contested services in Class 44

All the contested services, namely hygienic and beauty care have the purpose of beautifying, cleaning and keeping in good condition the human body. In this regard, these services coincide with the opponent’s goods in Class 3, such as cosmetics which are also used for these purposes. Furthermore, the contested services often include cosmetic treatments requiring the use of various beauty products. The establishments which provide such services may also offer cosmetics products for sale. In addition, there is some complementarity between the goods and services in comparison since hygienic and beauty care services are often combined with the use of various cosmetics the public may expect treatment with such products when they use the contested services. In conclusion, the goods and services compared can coincide in their purpose, target public, distribution channels and there is also complementarity between them. Therefore, they must be considered to be similar.

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 and services found to be identical or similar are directed at the public at large.

The degree of attention is considered to be average.

c) The signs

AURA LOEWE
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 signs include certain verbal elements that are meaningful in English namely ‘aura’, ‘beauty’ and ‘skin’. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

The earlier mark consists of the words ‘AURA LOEWE’ of which ‘aura’ means ‘​a feeling or character that a person or place seems to have’ (https://dictionary.cambridge.org/dictionary/english/aura; 06/05/2019) while ‘LOEWE’ is meaningless. In the absence of any relation with the goods in question, both verbal elements have average distinctiveness.

The contested sign consists of the verbal elements ‘Aura Migge beauty & skin’ in slightly fancy typeface, a small red heart and a depiction of a female figure, drawn in red lines. There is also a thin red line between the figurative and the verbal elements. Reference is made to the previous paragraph with regard to ‘Aura’ while ‘Migge’ is meaningless and distinctive. The words ‘beauty & skin’ are in much smaller fonts and are non-distinctive as they describe the purpose of the goods and services in question, namely beauty and skin care. The heart device is also of very small size and is a banal element frequently used in trade to make a product more attractive or likeable. With regard to the figurative element of a female figure, it has a low degree of distinctiveness as it will merely be perceived as an indication that the relevant goods and services are aimed at or used by women. Finally, it is the female figure and the words ‘Aura Migge’ that visually dominate the mark while the remaining elements are secondary given their much smaller size.

It is to be noted that 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).

Furthermore, 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 their initial, distinctive verbal element ‘AURA’ and differ in the remaining verbal and figurative elements and colours. As explained above, the remaining elements of the contested sign, except for ‘Migge’, have secondary importance given their lack or lower degree of distinctiveness. Therefore, the visual and aural perception of consumers will essentially be determined by the verbal elements ‘Aura Loewe’ / ‘Aura Migge’ which coincide in their initial verbal element of four letters, in their final letter ‘e’ as well as in the total number of letters. Bearing also in mind the importance of the beginning of signs and that of verbal elements versus figurative elements, it must be concluded that the signs are similar to a below average degree visually and to an average degree aurally.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As both signs will be associated with the distinctive concept of ‘aura’, the signs are conceptually identical to that extent. The remaining elements are either meaningless or have no or low degree of distinctiveness, therefore, these additional components have a limited impact on the assessment. Overall, the signs are similar to an average degree.

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

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).

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/services covered are from the same or economically linked undertakings.

The goods and services compared are identical or similar. The signs are visually similar to a below average degree while aurally and conceptually to an average degree. In particular, the signs’ initial words are identical and distinctive, therefore, they play a crucial role in the assessment. The contested sign contains a number of differing elements, however, most of these are non-distinctive or have low distinctiveness and/or visually secondary as explained above. As a result, consumer perception will significantly be influenced by the identity of the signs’ initial words which have a distinctive, independent role therein, and the impact of this cannot fully be offset by the signs’ differing second verbal components, albeit distinctive, and even less so by the remaining differing elements in the contested sign.

Bearing in mind the foregoing, it is concluded that the differences between the signs are insufficient to counterbalance the similarities and consequently the English-speaking public in the relevant territory is likely to think that the goods and services at hand come from the same or, as the case may be, economically linked undertakings.

Considering all the above, there is a likelihood of confusion on the English-speaking part of the public. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration invoked. It follows that the contested trade mark must be rejected for all the contested goods and services.

For the sake of completeness, it is noted that the opposition fails on Article (8)(1)(a) EUTRM as the signs are clearly not identical.

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

Solveiga BIEZA

Ferenc GAZDA

Erkki MÜNTER

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.