OPPOSITION No B 3 054 198

Confederación Nacional de Autoescuelas (CNAE), Avda. Juan Pablo II, 54, 28223 Pozuelo de Alarcón / Madrid, Spain (opponent), represented by Jaudenes Abogados, Pollensa 2. Oficina 19, 28290 Las Rozas (Madrid), Spain (professional representative)

a g a i n s t

CAP-Group Oy, Äyritie 12 C, 01510 Vantaa, Finland (applicant), represented by Kolster OY AB, Salmisaarenaukio 1, 00180 Helsinki, Finland (professional representative).

On 19/12/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 054 198 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 889 806 . The opposition is based on Spanish trade mark registration No 3 077 960 . 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.

a) The goods and services

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

Class 9: Magnetic recording supports, acoustic discs; compact discs, dvd and other digital recording supports; publications in electronic format; electronic publications recorded in informatic supports; electronic publications (downloadable); publications not printed.

Class 41: Education; training; entertainment services; sports and cultural activities. teaching and instruction services in the field of circulation, driving of vehicles and road education; professional training and retraining courses; organization and direction of colloquia, seminars, congresses, conferences and training workshops; publication of texts, books, magazines and other printed publications; edition and electronic publication of books and periodical publications online; non-downloadable electronic publications.

The contested goods and services, after a limitation filed by the applicant on 06/09/2019, are the following:

Class 9: Scientific, measuring and teaching apparatus and instruments; computer software.

Class 41: Education and providing of training; all the aforementioned relating to driving tuition and none being in relation to IT security, information systems and in particular information system security.

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

b) Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods and services assumed to be identical are mainly directed at the public at large as well as business customers with specific professional knowledge or expertise.The public’s degree of attentiveness may vary from average to high, depending on the price, sophistication, or terms and conditions of the goods and services purchased.

c) The signs

Earlier trade mark	Contested sign

The relevant territory is Spain.

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 earlier trade mark is a figurative sign consisting in the stylized letters ‘CAP’ portrayed respectively in red, white and yellow and enclosed in a blue rectangle with white sides. The letter ‘A’ is depicted in a bigger size than the other letters. This figurative arrangement is rather distinctive in relation to the relevant goods and services.

The contested application represents a stylized black road partially enclosed in an orange oval with a pointed end in its lower right part. The examination of the opposition will proceed as if the relevant public will perceive this figurative arrangement as a highly stylized combination of the letters ‘CAP’ which, for the opponent, is the best light in which the opposition can be examined. In specific, the orange circle will be perceived respectively as the letters ‘C’ and ‘P’ whereas the central figurative element might resemble a road containing the letter ‘A’. This figurative arrangement is rather distinctive in relation to the relevant goods and services.

The signs verbal element ‘CAP’ do not convey any specific meaning for the relevant consumers being, therefore, distinctive.

Visually, the sign’s respective figurative arrangement determines substantial visual differences. Specifically, the sign’s different colours, graphical structure and stylization of the common letters ‘CAP’ render the signs visually similar only to a low degree.

Aurally, the signs are identical since they coincides in the letters ‘CAP’.

Conceptually, although the public in the relevant territory will perceive the distinctive meaning conveyed by a road resembling a letter ‘A’ as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

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 and 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.

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends, inter alia, 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).

For the purposes of that global appreciation, the average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. However, 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.

In the present case the signs have been found visually similar to a low degree, aurally identical and not conceptually similar. They target the public at large as well as business customers with specific professional knowledge or expertise, whose degree of attention may vary from average to high.

Specifically, the signs presents overwhelming visual differences which lead the relevant consumers to differentiate them. In addition, the signs at issue are short, being only composed by three letters. In this regard it must be stressed that the length of signs may influence the effect of the differences between them. Indeed, the shorter a sign, the more easily the public is able to perceive all its single elements.

Taking all the above into account, it must be concluded that the assessed visual and conceptual differences between the signs are capable of maintaining a sufficient distance between the overall impressions given by the signs. For these reasons, the Opposition Division does not find it plausible that the relevant consumer, even that with an average degree of attentiveness, who is considered reasonably well informed and reasonably observant and circumspect, might believe that the goods and services assumed to be identical come from the same undertaking or economically linked undertakings.

Considering all the above, even assuming that the goods and services are identical there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR, the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Victoria DAFAUCE MENENDEZ

Aldo BLASI

Cristina SENERIO LLOVET

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.