OPPOSITION No B 3 063 860

Worldwide Brands, Inc., Zweigniederlassung Deutschland, Richmodstraße 13, 50667 Cologne, Germany (opponent), represented by Matthew Michael Sammon, Calls Wharf 2 The Calls, Leeds LS2 7JU, United Kingdom (professional representative)

a g a i n s t

Guangdong Camel Apparel Co., Ltd., Ganjiao Shangjie Village 9, Lishui, Nanhai District, Foshan City, Guangdong Province, People’s Republic of China (applicant), represented by J A Kemp SNC, 75 Boulevard Haussmann, 75008 Paris, France (professional representative).

On 22/11/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 063 860 is partially upheld, namely for the following contested goods:

Class 18: All the applied for goods except for: leather trimmings for furniture; leather laces; walking stick handles; suitcase handles.

Class 24: Woven fabrics; fabrics for textile use; cotton cloths; lining fabric for footwear; fabric for footwear; linings [textile]; gauze [cloth]; silk fabrics for printing patterns; woollen fabric; spun silk fabrics; gauze fabric; linen [fabric]; furnishing and upholstery fabrics; non-woven textile fabrics; felt; diaper changing cloths for babies; blankets for household pets; sleeping bags for babies; baby buntings; sail cloth.

Class 25: All the applied for goods except for: ready-made linings [parts of clothing]; non‑slip soles for footwear; tips for footwear; boot uppers; footwear uppers; trouser straps; gaiter straps; heelpieces for footwear; welts for footwear; soles for footwear; heels.

Class 28: All the applied for goods except for: games; apparatus for games; handheld game consoles; protective films adapted for screens for portable games; ring games; marbles for games; kites; counters [discs] for games; slides [playthings]; dolls; toy masks; gyroscopes and flight stabilizers for model aircraft; scooters [toys]; flying discs [toys]; toy vehicles; remote-controlled toy vehicles; scale model vehicles; toy furniture; shoes for dolls; musical toys; toy robots; tricycles for infants [toys]; checkers [games]; bingo cards; playing cards; toy gliders; play swimming pools; inflatable pool toys; toy Christmas trees.

2. European Union trade mark application No 17 882 201 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 882 201 for the word mark ‘CAMEL CROWN’, namely against all the goods in Classes 18, 20, 22, 24, 25, 27 and 28, but on 25/01/2019 the opponent restricted the scope of the opposition to remain only against the goods in Classes 18, 24, 25 and 28. At the same time, the opponent also restricted the grounds and basis of the opposition and it is now only based on international trade mark registration designating the European Union No 814 414 for the figurative mark , for which the opponent finally only 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.

1. The goods

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

Class 9: Eyeglasses, sunglasses, binoculars; cases, chains, cords, lenses and frames for glasses.

Class 14: Precious metals and their alloys and trophies of precious metals or coated therewith, boxes of precious metals or coated therewith, figures of precious metals or coated therewith, statues of precious metals or coated therewith, medallions of precious metals or coated therewith, badges of precious metals or coated therewith, jewellery cases of precious metals or coated therewith, clothing ornaments of precious metals or coated therewith, hat ornaments of precious metals or coated therewith, shoe ornaments of precious metals or coated therewith; jewellery, precious stones; horological and chronometric instruments and cases therefor; watch straps; key rings.

Class 18: Leather and leather imitations, as well as straps made of leather, straps made of imitation leather, briefcases made of leather, briefcases made of imitation leather, pouches made of leather, pouches made of imitation leather, cases of leather, cases of imitation leather, belts of leather, belts of imitation leather, boxes of leather, boxes of imitation leather, bags made of leather, bags made of imitation leather, key cases made of leather, key cases made of imitation leather, credit card holders made of leather, credit card holders made of imitation leather; backpacks, school bags, satchels, shopping bags, book bags, shoulder bags, hand bags, waist bags, travelling bags, wallets, coin purses and purses, key cases, trunks and suitcases; umbrellas, parasols and walking sticks; animal skins, hides; whips; harness and saddlery.

Class 25: Clothing, footwear, headgear.

The contested goods are the following:

Class 18: Animal skins; imitation leather; purses; game bags [hunting accessories]; school bags; travelling trunks; backpacks; pocket wallets; bags for climbers; handbags; travelling bags; Travelling bags [leatherware]; suitcases; haversacks; garment bags for travel; valises; sports bags; shoulder bags; credit card cases; business card cases; luggage tags; leather trimmings for furniture; leather laces; leather straps; reins for guiding children; garment bags for travel made of leather; briefcases; wrist mounted purses; labels of leather; suitcases with wheels; umbrellas; alpenstocks; mountaineering sticks; canes; walking stick seats; walking stick handles; leather leads; saddlery of leather; whips; covers for animals; harness fittings; dog collars; dog coats; reusable shopping bags; attaché cases; bags for campers; suitcase handles; chain mesh purses; luggage; Trunks [luggage]; key cases; slings for carrying infants; pouch baby carriers; parasols.

Class 24: Woven fabrics; fabrics for textile use; Cotton cloths; lining fabric for footwear; fabric for footwear; linings [textile]; gauze [cloth]; silk fabrics for printing patterns; woollen fabric; spun silk fabrics; gauze fabric; linen [fabric]; furnishing and upholstery fabrics; non-woven textile fabrics; labels of textile; wall hangings of textile; felt; towels of textile; handkerchiefs of textile; face towels of textile; cloths for removing make-up; bath towels; dish towels for drying; household linen; bedspreads; quilts; mattress covers; travelling rugs [lap robes]; sheets [textile]; eiderdowns [down coverlets]; bed linen; ticks [mattress covers]; mosquito nets; pillowcases; sleeping bag liners; pillow shams; bed blankets; diaper changing cloths for babies; blankets for household pets; sleeping bags for babies; baby buntings; sleeping bags; table linen, not of paper; coasters of textile; covers for cushions; door curtains; cloth flags; Sail cloth.

Class 25: Underwear; sweaters; shirts; Short-sleeve shirts; ready-made linings [parts of clothing]; breeches for wear; trousers; overcoats; knitwear [clothing]; vests; coats; skirts; sports jerseys; sports singlets; pullovers; dresses; topcoats; jackets [clothing]; parkas; leather coats; tee-shirts; skorts; leggings [trousers]; waterproof jackets; waterproof pants; camisoles; boxer shorts; dressing gowns; tights; sweat-absorbent underwear; waistcoats; slips [underclothing]; bodies [underclothing]; wind coats; down jackets; shirts for infants, babies, toddlers and children; football uniforms; light-reflecting jackets; light-reflecting coats; body suits; warm-up suits; snow suits; singlets; sports jackets; knitted underwear; jerseys [clothing]; babies pants [underwear]; layettes [clothing]; bibs, not of paper; babies trousers; shoes for babies; wet suits for water-skiing; cycling shorts; bathing caps; bathing trunks; swimming trunks; swimsuits; clothing for gymnastics; karate uniforms; leotards; raincoats; ponchos; dance costumes; football boots; football shoes; gymnastic shoes; studs for football boots; ski boots; footwear; bath slippers; boots; half-boots; lace boots; goloshes; galoshes; slippers; beach shoes; wooden shoes; sandals; shoes; sports shoes; boots for sport; valenki [felted boots]; ankle boots; non-slip soles for footwear; tips for footwear; boot uppers; inner soles; footwear uppers; spats; gaiters; trouser straps; gaiter straps; heelpieces for footwear; welts for footwear; soles for footwear; heels; running shoes; track and field shoes; mountaineering shoes; rain boots; insoles for footwear; climbing shoes; hiking boots; footwear for women; riding shoes; boots for motorcycling; caps [headwear]; hats; ear muffs [clothing]; headbands [clothing]; hosiery; stocking suspenders; pantyhose; socks; gloves [clothing]; muffs [clothing]; ski gloves; shawls; neckties; scarves; veils; mantillas; kerchiefs; pocket squares; mufflers [neck scarves]; turbans; braces for clothing [suspenders]; belts [clothing]; girdles; leather belts [clothing]; albs; shower caps; sleep masks; eyeshades as headwear.

Class 28: Games; apparatus for games; handheld game consoles; protective films adapted for screens for portable games; ring games; marbles for games; kites; counters [discs] for games; slides [playthings]; dolls; toy masks; gyroscopes and flight stabilizers for model aircraft; scooters [toys]; flying discs [toys]; toy vehicles; remote-controlled toy vehicles; scale model vehicles; toy furniture; shoes for dolls; musical toys; toy robots; tricycles for infants [toys]; checkers [games]; bingo cards; playing cards; balls for games; billiard table cushions; billiard balls; bowling apparatus and machinery; hockey sticks; golf bags, with or without wheels; rackets; badminton shuttlecocks; billiard cues; stationary exercise bicycles; body-building apparatus; body-training apparatus; chest expanders [exercisers]; rollers for stationary exercise bicycles; dumb-bells; hang gliders; spring bars for exercising; bows for archery; archery implements; archery targets; baseball bats; baseball bat cases; golf balls; nets for sports; fitted protective covers specially adapted for sports equipment, namely, golf club, tennis racket, skis; soft tennis balls; rubber baseballs; sleds [sports articles]; edges of skis; machines for physical exercises; bindings for alpine skis; darts; barbells; surfboards; ski edges; sole coverings for skis; skis; climbers' harness; toy gliders; skateboards; surfboard leashes; trampolines; yoga straps; Waterskis; ski sticks; ski poles; kendo bamboo swords; relay batons; boards used in the practice of water sports; yoga blocks; play swimming pools; inflatable pool toys; boxing gloves; shin guards [sports articles]; fencing gloves; baseball gloves; elbow guards for athletic use; knee guards for athletic use; protective paddings [parts of sports suits]; gloves for golf; swimming jackets; skating boots with skates attached; roller skates; ice skates; in-line roller skates; snowshoes; bowling gloves; ice skate blades; rugby gloves; protective supports for shoulders and elbows [sports articles]; kendo plastrons; catchers' masks; toy Christmas trees; artificial fishing bait; rods for fishing; landing nets for anglers; floats for fishing; fish hooks; lures for hunting or fishing; fishing tackle; fishing lines; reels for fishing; creels [fishing traps]; gut for fishing; bite indicators [fishing tackle]; bite sensors [fishing tackle]; scent lures for hunting or fishing; fish cages for use in recreational fishing; fishing rod holders; fishing sinkers; camouflage tape used in hunting; Nets for sports.

The term ‘namely’, used in the applicant’s list of goods to show the relationship of individual goods to a broader category, is exclusive and restricts the scope of protection only to the goods specifically listed.

As a preliminary remark, it is to be noted that 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.

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.

Contested goods in Class 18

The contested animal skins; imitation leather; purses; school bags; backpacks; handbags; travelling bags; suitcases; shoulder bags; leather straps; umbrellas; whips; trunks [luggage]; key cases; parasols are identically contained in both lists of goods (albeit using slightly different wordings and including synonyms).

The contested game bags [hunting accessories]; travelling trunks; pocket wallets; bags for climbers; travelling bags [leatherware]; haversacks; garment bags for travel; valises; sports bags; garment bags for travel made of leather; briefcases; wrist mounted purses; suitcases with wheels; reusable shopping bags; attaché cases; bags for campers; chain mesh purses; luggage are identical to the opponent’s backpacks; shopping bags; shoulder bags; hand bags; travelling bags; wallets; purses; trunks and suitcases either because the opponent’s goods include, are included in, or overlap with, the contested goods.

The contested credit card cases; business card cases are included in the broad category of the opponent’s credit card holders of leather. Therefore, they are identical.

The contested alpenstocks; mountaineering sticks; canes; walking stick seats are included in the broad category of the opponent’s walking sticks. Therefore, they are identical.

The contested leather leads; saddlery of leather; harness fittings are included in the broad category of the opponent’s saddlery. Therefore, they are identical.

The contested slings for carrying infants; pouch baby carriers are items made of ropes, straps or cloth, that are used for carrying babies and children. These goods are included in, or overlap with, the broad category of the opponent’s pouches made of leather as the latter encompasses baby pouches. Therefore, they are identical.

The contested reins for guiding children are similar to the opponent’s pouches made of leather (which includes baby pouches), since they usually derive from the same companies, share the same distribution channels and are aimed at the same end users.

The contested luggage tags; labels of leather are used inter alia to identify luggage and are similar to the opponent’s suitcases as they usually coincide in producer, relevant public and distribution channels.

The opponent’s harness covers ‘harness for pets’, therefore, the contested covers for animals; dog collars; dog coats are considered similar since they share the same distribution channels and producer, and are targeted at the same public.

However, the contested leather trimmings for furniture; leather laces; walking stick handles; suitcase handles are very specific products. They are produced by specialized enterprises active in the field of components for furniture, footwear, walking sticks and suitcases. They target a specialized public (i.e. those who produce furniture, footwear, walking sticks and suitcases, respectively). Therefore, these goods are dissimilar to the opponent’s goods in Class 18, since the mere fact that a certain product can be composed of several components does not automatically establish similarity between the finished product and its parts (27/10/2005, T-336/03, Mobilix, EU:T:2005:379, § 61). Moreover, these contested goods are not similar to any other of the opponent’s goods in Classes 9, 14 and 25 because they clearly have different purposes, methods of use, distribution channels, relevant publics and producers. In addition, they are not complementary or in competition. The Opposition Division also notes that the opponent has not adduced any argumentation that would allow a different finding to be reached.

Contested goods in Class 24

The contested woven fabrics; fabrics for textile use; cotton cloths; lining fabric for footwear; fabric for footwear; linings [textile]; gauze [cloth]; silk fabrics for printing patterns; woollen fabric; spun silk fabrics; gauze fabric; linen [fabric]; furnishing and upholstery fabrics; non-woven textile fabrics; felt; sail cloth are all ‘fabrics’ and they are similar to the opponent’s leather and leather imitations in Class 18 as they have the same purpose namely to be used for the confection of other goods such as footwear, clothing and household soft furnishings. Furthermore, they usually coincide in relevant public and are in competition.

The contested diaper changing cloths for babies; sleeping bags for babies; baby buntings are specific goods for babies. These goods are at least similar to a low degree to the opponent’s pouches made of leather (which includes baby pouches) in Class 18, since they target the same end users and they can coincide in distribution channels.

The contested blankets for household pets are at least similar to a low degree to the opponent’s harness in Class 18, since they target the same end users and they can coincide in distribution channels.

The contested labels of textile; wall hangings of textile; towels of textile; handkerchiefs of textile; face towels of textile; cloths for removing make-up; bath towels; dish towels for drying; household linen; bedspreads; quilts; mattress covers; travelling rugs [lap robes]; sheets [textile]; eiderdowns [down coverlets]; bed linen; ticks [mattress covers]; mosquito nets; pillowcases; sleeping bag liners; pillow shams; bed blankets; sleeping bags; table linen, not of paper; coasters of textile; covers for cushions; door curtains; cloth flags are various items of the kind of ‘labels of textile’, ‘wall hangings’, ‘linens’ and ‘curtains’, which are all classified as ‘textile goods’. These goods are considered dissimilar to the goods in Classes 9, 14, 18 and 25. Although these goods and some of the opponent’s goods, such as clothing in Class 25, are made of textile material, this is not enough to justify a finding of similarity. The conflicting goods serve completely different purposes (i.e. clothing is meant to be worn by people, for protection and/or fashion, whereas ‘textile goods’ are mainly for household purposes and interior decoration) and their method of use is different. Moreover, they have different distribution channels and sales outlets and are not usually manufactured by the same undertaking.

Contested goods in Class 25

Footwear is identically contained in both lists of goods.

The contested underwear; sweaters; shirts; short-sleeve shirts; breeches for wear; trousers; overcoats; knitwear [clothing]; vests; coats; skirts; sports jerseys; sports singlets; pullovers; dresses; topcoats; jackets [clothing]; parkas; leather coats; tee-shirts; skorts; leggings [trousers]; waterproof jackets; waterproof pants; camisoles; boxer shorts; dressing gowns; tights; sweat-absorbent underwear; waistcoats; slips [underclothing]; bodies [underclothing]; wind coats; down jackets; shirts for infants, babies, toddlers and children; football uniforms; light-reflecting jackets; light-reflecting coats; body suits; warm-up suits; snow suits; singlets; sports jackets; knitted underwear; jerseys [clothing]; babies pants [underwear]; layettes [clothing]; babies trousers; shoes for babies; wet suits for water-skiing; cycling shorts; bathing caps; bathing trunks; swimming trunks; swimsuits; clothing for gymnastics; karate uniforms; leotards; raincoats; ponchos; dance costumes; football boots; football shoes; gymnastic shoes; ski boots; bath slippers; boots; half-boots; lace boots; goloshes; galoshes; slippers; beach shoes; wooden shoes; sandals; shoes; sports shoes; boots for sport; valenki [felted boots]; ankle boots; spats; gaiters; running shoes; track and field shoes; mountaineering shoes; rain boots; climbing shoes; hiking boots; footwear for women; riding shoes; boots for motorcycling; caps [headwear]; hats; ear muffs [clothing]; headbands [clothing]; hosiery; stocking suspenders; pantyhose; socks; gloves [clothing]; muffs [clothing]; ski gloves; shawls; neckties; scarves; veils; mantillas; kerchiefs; pocket squares; mufflers [neck scarves]; turbans; braces for clothing [suspenders]; belts [clothing]; girdles; leather belts [clothing]; albs; shower caps; sleep masks; eyeshades as headwear are all items of clothing, footwear or headgear. Therefore, they are included in the broad categories of, or overlap with, the opponent’s clothing, footwear, headgear. Therefore, they are identical.

The contested bibs, not of paper are pieces of cloth or plastic which are worn by very young children to protect their clothes while they are eating. Accordingly, the definition of bibs falls outside the normal definition of clothing. The purpose of clothing is essentially to cover the body, whereas the main purpose of bibs is to protect the babies’ clothes while they are eating. Indeed, in the case of bibs, the purpose of covering the body is merely secondary. Therefore, these contested goods are at least similar to the opponent’s clothing as they usually coincide in producer, relevant public and distribution channels.

The contested studs for football boots are similar to the opponent’s footwear as they usually coincide in producer, relevant public and distribution channels. Furthermore, they are complementary.

The contested inner soles; insoles for footwear are similar to the opponent’s footwear as they usually coincide in producer, relevant public and distribution channels. Furthermore, they are complementary.

The contested ready-made linings [parts of clothing]; non-slip soles for footwear; tips for footwear; boot uppers; footwear uppers; trouser straps; gaiter straps; heelpieces for footwear; welts for footwear; soles for footwear; heels are parts for clothing and footwear. However, these goods do not share any relevant points of contact with the opponent’s clothing and footwear, which refer to items ready to wear. They clearly differ in nature, purpose and method of use. Furthermore, they do not coincide in producers, end users (these goods are not intended for the public at large, but rather aimed at manufacturers of clothing and footwear) or distribution channels and they are not complementary or in competition. Therefore, they are dissimilar.

Contested goods in Class 28

The contested boxing gloves; fencing gloves; baseball gloves; gloves for golf; bowling gloves; rugby gloves are ‘gloves made specifically for playing sports’. These goods and the contested shin guards [sports articles]; elbow guards for athletic use; knee guards for athletic use; protective paddings [parts of sports suits]; protective supports for shoulders and elbows [sports articles]; kendo plastrons; catchers' masks; swimming jackets are similar to a low degree to the opponent’s clothing in Class 25, as they usually coincide in producer, relevant public and distribution channels.

The contested balls for games; billiard table cushions; billiard balls; bowling apparatus and machinery; hockey sticks; golf bags, with or without wheels; rackets; badminton shuttlecocks; billiard cues; stationary exercise bicycles; body-building apparatus; body-training apparatus; chest expanders [exercisers]; rollers for stationary exercise bicycles; dumb-bells; hang gliders; spring bars for exercising; bows for archery; archery implements; archery targets; baseball bats; baseball bat cases; golf balls; nets for sports; fitted protective covers specially adapted for sports equipment, namely, golf club, tennis racket, skis; soft tennis balls; rubber baseballs; sleds [sports articles]; edges of skis; machines for physical exercises; bindings for alpine skis; darts; barbells; surfboards; ski edges; sole coverings for skis; skis; climbers' harness; skateboards; surfboard leashes; trampolines; yoga straps; waterskis; ski sticks; ski poles; kendo bamboo swords; relay batons; boards used in the practice of water sports; yoga blocks; skating boots with skates attached; roller skates; ice skates; in-line roller skates; snowshoes; ice skate blades; artificial fishing bait; rods for fishing; landing nets for anglers; floats for fishing; fish hooks; lures for hunting or fishing; fishing tackle; fishing lines; reels for fishing; creels [fishing traps]; gut for fishing; bite indicators [fishing tackle]; bite sensors [fishing tackle]; scent lures for hunting or fishing; fish cages for use in recreational fishing; fishing rod holders; fishing sinkers; camouflage tape used in hunting; nets for sports fall under the broad category of ‘sporting and gymnastic articles’.

It must be recalled that ‘clothing, footwear and headgear’ include ‘sports clothing, footwear and headgear’, which are items of apparel designed specifically to be worn when doing sport (including hunting and fishing). The purpose and nature of these goods are different from those of ‘sporting and gymnastic articles’, which are articles and apparatus for all types of sports and gymnastics, such as weights, halters, tennis rackets, balls and fitness apparatus. However, undertakings that manufacture ‘sporting and gymnastic articles’ may also manufacture ‘sports clothing/sports footwear/sports headgear’. In this case the distribution channels can be the same. Therefore, there is a low degree of similarity between ‘sports clothing/sports footwear’ and ‘sporting and gymnastic articles’.

Accordingly, the opponent’s clothing, footwear, headgear are similar to a low degree to the abovementioned contested goods that fall under the broad category of ‘sporting and gymnastic articles’.

However, the remaining contested goods, namely games; apparatus for games; handheld game consoles; protective films adapted for screens for portable games; ring games; marbles for games; kites; counters [discs] for games; slides [playthings]; dolls; toy masks; gyroscopes and flight stabilizers for model aircraft; scooters [toys]; flying discs [toys]; toy vehicles; remote-controlled toy vehicles; scale model vehicles; toy furniture; shoes for dolls; musical toys; toy robots; tricycles for infants [toys]; checkers [games]; bingo cards; playing cards; toy gliders; play swimming pools; inflatable pool toys; toy Christmas trees fall within the following categories: ‘toys, games, playthings and novelties’ (e.g. games; dolls; toy vehicles) and ‘video game apparatus’ (e.g. handled game consoles). Accordingly, these goods are dissimilar to the opponent’s goods in Classes 9, 14, 18 and 25. They serve completely different purposes and their method of use is different. Moreover, they have different distribution channels and sales outlets and are not usually manufactured by the same undertaking. Furthermore, they are not complementary or in competition.

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 goods found to be identical or similar to varying degrees are mainly directed at the public at large, but there are also some specialised goods directed at business customers with specific professional knowledge or expertise (e.g. animal skins, fabric for footwear, etc.).

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.

3. The signs

	CAMEL CROWN
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). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The conflicting marks contain English words with an overall meaning that can lessen the degree of distinctive character of some of the verbal elements in relation to some of the goods in question thus leading to lower degrees of similarity. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the non‑English speaking part of the public, such as the Spanish‑speaking public, for which the signs show more similarities, as it will be explained below.

The contested sign is a word mark. In the case of word marks, it is the word as such that is protected and not its written form. Therefore, it is irrelevant whether it is depicted in upper or lower case letters, or in a combination thereof. Consequently, the difference in the signs under comparison in this regard is immaterial.

The element ‘camel’ present in both signs, although not included in the official Spanish dictionary –Diccionario de la lengua española-, is nowadays often used in relation to fashion to refer to the colour that resembles the colour of the hair of a camel. However, it can also be associated to this animal, since the equivalent word for ‘camel’ in Spanish is ‘camello’. Having regard to these possible perceptions, the verbal element ‘CAMEL’, on its own, may have a certain connection with some of the goods in question, in particular with the goods in Classes 18, 24 and 25, since it can be associated either with the colour of these goods or with the material from which these goods are made. In such circumstances the distinctive character of this element, when perceived on its own, is weak or even non‑distinctive in relation to the goods mentioned above, whereas it is normally distinctive in relation to the relevant goods in Class 28.

The element ‘active’ of the earlier mark does not exist as such in Spanish, but it is very likely to be associated with its equivalent word in Spanish ‘activo’, an adjective that means energetic or engaged. Bearing in mind that some of the relevant goods in Classes 18, 25 and 28 are intended to be used during active pursuits (e.g. bags for climbers; sports jerseys; running shoes; boxing gloves), this element, on its own, may be perceived as alluding to some of the properties of the goods in question and thus with a limited distinctive character.

However, it is very likely that a part of the relevant public will perceive the verbal elements of the earlier mark ‘camel active’ with the overall meaning of ‘camello activo’ (i.e. ‘active camel’), where the element ‘active’ qualifies the preceding element ‘camel’, in the sense that such animal is performing a particular activity. Since this meaning has no relationship whatsoever with the goods in question, it is, therefore, distinctive.

The element ‘crown’ of the contested sign is meaningless for the relevant public and is, therefore, distinctive.

The two lines depicted in the earlier mark are very simple figurative elements and have a very limited distinctive character. Furthermore, it must be recalled 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).

Visually, the signs coincide in their first verbal element ‘camel’. 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 and from top to bottom, which makes the part placed at the left/top of the sign (the initial part) the one that first catches the attention of the reader. The signs differ in their second verbal elements, namely ‘active’ in the earlier mark and ‘crown’ in the contested sign. Furthermore, the signs differ in the figurative elements, colours and slight stylisation of the letters in the contested sign, although these aspects have a lower impact, as explained above.

Therefore, bearing in mind the above principles and assertions on the distinctiveness of the elements contained in the signs, they are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the syllables ‛ca‑mel’, which form the first verbal element present in the signs. The pronunciation differs in the second verbal elements of the signs, namely in the syllables ‘ac‑ti‑ve’ of the earlier mark versus ‘crown’ of the contested sign.

Therefore, bearing in mind the above principles and assertions on the distinctiveness of the elements contained in the signs, they are aurally similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs will be associated with a similar meaning, at least for a part of the relevant public, to the extent that they both refer to the same animal, the signs are conceptually similar to an average degree.

As the signs have been found similar in all aspects 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. Despite the assertions made in section c) as regards each of the verbal elements considered on their own, the sign has to be considered as a whole. In fact, it has also been put forward that a part of the relevant public is likely to perceive the verbal elements of the sign as forming an expression with a meaning that is normally distinctive in relation to the goods in question. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of some weak figurative elements in the mark.

5. Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified. It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).

In the present case, the goods are partly identical, partly similar to varying degrees and partly dissimilar. They target the public at large and business customers who will pay a degree of attention that varies from average to high.

The signs are visually, aurally and conceptually similar to an average degree. Indeed, the signs have a similar verbal structure, as they both begin with the verbal element ‘camel’, which is followed by a second verbal element, namely ‘active’ and crown’, respectively. The earlier mark is likely to be perceived by a significant part of the relevant public with the meaning of ‘active camel’, where ‘active’ is subordinated to the most distinctive element of the sign, ‘camel’. Furthermore, and contrary to the applicant’s opinion, the figurative elements (i.e. the two lines) and aspects of the sign (i.e. the slight stylisation of the letters) have a limited distinctive character and a lower impact from the perspective of the relevant public, as explained above in section c) of the present decision. The earlier mark as a whole has a normal distinctiveness.

The applicant claims that the different second verbal elements in the signs are the most distinctive elements and thus there is no likelihood of confusion between the signs. The applicant refers to a previous decision of the Office to support its arguments, namely to the decision dated 19/01/2017 in the opposition proceedings No B 2 635 632 in the conflict between the signs ‘BLACK BULL’ and . However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

The previous case referred to by the applicant is not relevant to the present proceedings since the coinciding element, ‘BLACK’, refers to a colour, which qualifies the second and most distinctive elements of the signs, the nouns ‘BULL’ and ‘BEAR’, respectively. Therefore, the signs are not comparable to the conflicting signs in the present case, for the reasons mentioned above.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the Spanish-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s international registration designating the European Union. 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.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to varying degrees those of the earlier trade mark.

As regards the goods that are similar to a low degree, it must be kept in mind that 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). In the present case, the assessed degree of similarities between the signs is sufficient to offset the low degree of similarity between some of the goods, notwithstanding the high degree of attention paid for some of them.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Vanessa PAGE

Marta GARCÍA COLLADO

Eva Inés PÉREZ SANTONJA

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.