OPPOSITION No B 3 059 879

Homelovers - The Trendy Real Estate, Lda., Rua Castilho, N.º 71 - 5.º Dto., 1250 068 Lisboa, Portugal (opponent), represented by Simões, Garcia, Corte-Real & Associados - Consultores, Lda., Rua Castilho, 167, 2º andar, 1070-050 Lisboa, Portugal (professional representative)

a g a i n s t

Guangzhou Yuchan Trading Co. Ltd, Unit 70, 2nd Floor, 882-890 Building (Incubation Base of Little Giant Enterprise), Airport Road, 510410 Baiyun District, Guangzhou City, Guangdong Province, People’s Republic of China (applicant), represented by Nextmarq, 1 Rue Chabrier, 13100 Aix-en-Provence, France (professional representative).

On 24/07/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 059 879 is upheld for all the contested services namely

Class 35: Import-export agencies; sales promotion for others; marketing; commercial administration of the licensing of the goods and services of others; commercial information and advice for consumers [consumer advice shop]; business management assistance; outdoor advertising; advertising; publicity; on-line advertising on a computer network.

2. European Union trade mark application No 17 880 802 is rejected for all the contested services. It may proceed for the remaining goods.

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

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 880 802 ‘Homelove’ namely against all the services in Class 35. The opposition is based on, inter alia, Portuguese trade mark registration No 595 330 ‘HOMELOVERS’. 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 Portuguese trade mark registration No 595 330 ‘HOMELOVERS’.

1. The services

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

Class 35: Advertising; business management; business administration; franchising services; auctioneering services; outdoor advertising; business appraisals; business appraisal; professional business consulting; business information; information (business -); business inquiries; business investigations; research (business -); business management and organization consultancy; business management assistance; business management consulting; on-line advertising on a computer network; sales promotion for third parties; sales promotion for others; telemarketing services; textiles and textile goods; bed and table covers; retail trade services related to the sale of furniture and decoration articles, fabrics and textile products, bed and table covers.

The contested services are the following:

Class 35: Import-export agencies; sales promotion for others; marketing; commercial administration of the licensing of the goods and services of others; commercial information and advice for consumers [consumer advice shop]; business management assistance; outdoor advertising; advertising; publicity; on-line advertising on a computer network.

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.

The contested sales promotion for others; advertising; business management assistance; outdoor advertising; on-line advertising on a computer network are identically contained in both lists of services (including synonyms).

The contested marketing includes, as a broader category of, or overlaps with, the opponent’s telemarketing services. Since the Opposition Division cannot dissect ex officio the broad category of the contested services, it is considered identical to the opponent’s services.

The contested commercial administration of the licensing of the goods and services overlap with the opponent’s business administration. Therefore, they are identical.

The contested commercial information and advice for consumers [consumer advice shop] are included in the broad category of, or overlap with, the opponent’s business information. Therefore, they are identical.

The contested publicity are included in the broad category of, or overlap with, the opponent’s advertising. Therefore, they are identical.

The contested import-export agencies are similar to the opponent’s professional business consulting as they usually coincide in producer, relevant public and distribution channels.

2. 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 services found to be identical or similar are directed at business customers with specific professional knowledge or expertise for whom the degree of attention may vary from average to above average, depending on the price, sophistication, or terms and conditions of the services purchased.

3. The signs

HOMELOVERS	Homelove
Earlier trade mark	Contested sign

The relevant territory is Portugal.

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).

In the case of word marks, the word as such is protected, not its written form. Therefore, it is irrelevant whether the earlier mark is depicted in lower or upper case letters.

The earlier mark consists of the verbal element ‘HOMELOVERS’. English is widely understood among the business community in Portugal and so, for the vast majority of the relevant public, the meaning of the both of the basic English words ‘HOME’ and ‘LOVERS’, that comprise the earlier mark, will be understood. In addition, the combination of these two words will be perceived as having a univocal meaning: lovers of home. In any event, this verbal element bears no relation to the relevant services so it is normally distinctive.

The contested mark comprises the verbal element ‘Homelove’. As stated above, English is widely understood among the business community in Portugal, the vast majority of which will perceive the meaning of the basic English words ‘Home’ and ‘Love’. Moreover, the verbal element ‘Homelove’ has a univocal meaning, referring to love of home, which will be understood by the part of the relevant public having a command of English.

Since a likelihood of confusion for only part of the relevant public is sufficient to reject the contested application, the Opposition Division finds it appropriate to focus the comparison of the signs on the part of the public that will perceive the meaning of the English words as has been explained above.

Visually and aurally, the signs coincide in the letter string/sound ‘HOMELOVE’ identically present in both signs and they differ only in the letters/sound ‘RS’ appearing at the end of the earlier mark.

It should be borne in mind that 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.

Taking the above into account, the signs at issue are considered to be visually and phonetically similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. For the vast majority of the relevant public – who have a command of English – the signs at issue will convey a similar semantic meaning referring to lovers of home and love of home respectively. For this part of the relevant public the signs are conceptually similar at least to a high degree.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. 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 services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

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 signs are visually and aurally similar to a high degree and conceptually similar to a high degree for the part of the relevant public having a command of English. The relevant services are either identical or similar, the earlier mark possesses normal distinctive character, and the degree of attention will vary from average to above average.

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). Moreover, 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).

Taking all the relevant factors into consideration, the Opposition Division is of the view that the strong similarities between the signs clearly outweigh the differences such that there is a likelihood of confusion for a substantial part of the relevant 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 must be upheld for all the contested services.

As the Portuguese trade mark registration No 595 330 ‘HOMELOVERS’ leads to the success of the opposition and to the rejection of the contested trade mark for all the services 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

Begoña URIARTE VALIENTE

Kieran HENEGHAN

Ali KÜÇÜKŞAHİN

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.