OPPOSITION Nо B 3 060 608

 

Purple Public Relations Limited, 27-29 Glasshouse Street, London, W1B 5DF, United Kingdom (opponent), represented by Venner Shipley LLP, Alte Landstrasse 23, 85521 Ottobrunn/München, Germany (professional representative)

a g a i n s t

The Purple Vision Legacy Limited, Overdene House, 49 Church Street, Reading, RG7 5BX, United Kingdom (applicant), represented by Julian Ward, L ee & Thompson LLP, 4 Gee's Court, St. Christopher's Place, Marylebone, London W1U 1JD, United Kingdom (professional representative).

On 31/03/2021, the Opposition Division takes the following

 

 

DECISION:

  

1.				Opposition No B 3 060 608 is upheld for all the contested services, namely:
			Class 41: Artistic direction of performing artists; artistic management of musical shows; audio entertainment services; audio, film, video and television recording services; audio production; audio production services; audio recording and production; audio, video and multimedia production, and photography; audio-visual display presentation services for entertainment purposes; music entertainment services; music production; music production services; music recording studio services; musical entertainment; musical entertainment services; musical group entertainment services.
	2.	European Union trade mark application No 17 895 102 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

 

On 31/07/2018, the opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 895 102 ‘The Purple Vision’ (word mark), namely against all the services in Class 41. The opposition is based on European Union trade mark registration No 3 287 661, . 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 services

 

The services on which the opposition is based are, inter alia, the following:

Class 41: Organisation of events.

The contested services are the following:

Class 41: Artistic direction of performing artists; artistic management of musical shows; audio entertainment services; audio, film, video and television recording services; audio production; audio production services; audio recording and production; audio, video and multimedia production, and photography; audio-visual display presentation services for entertainment purposes; music entertainment services; music production; music production services; music recording studio services; musical entertainment; musical entertainment services; musical group entertainment services.

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 services could be either identical (because they overlap with the opponent’s services, as occurs with the contested musical entertainment; musical entertainment services; musical group entertainment services) or at least similar to the opponent’s services. The opponent’s organisation of events includes organisation of live music concerts or festivals. They are all entertainment services and have the same ultimate purpose of distracting and amusing people. They are often provided by the same undertakings and in some cases could be directed at the same public. In this regard, it should be noted that the company which organises a live music concert may have many roles, among them, organizing the line-up, scheduling the production budget and resources (including the selection and installation of the sound and audio-visual systems), hiring the musicians, controlling the photographic sessions as well as supervising the recording, mixing and mastering of the videos in connection with the event (such as, the ‘trailers’ or the ‘after-movie’). Finally, these services are complementary.

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.

The relevant services target the general public and also the professional public. The degree of attention may vary from average to high, depending on the specialised nature of the service, the frequency of purchase and their price.

c) The signs

 

	The Purple Vision
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 coinciding element ‘PURPLE’ is an English word that refers to the colour ‘purple’. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public, such as Ireland or Malta, for whom the concept of the word has an impact in the assessment of the likelihood of confusion. Moreover, taking into consideration the contested services, the degree of distinctiveness of the element ‘PURPLE’ in the signs is normal, as the concept of the colour does not clearly refer to any feature of the services nor is there any other reason to consider the distinctiveness lower than normal.

The earlier mark is a figurative mark composed of two superimposed hexagons in varying shades of purple. The verbal element ‘PURPLE’ written in purple upper-case letters is under this element. 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). Therefore, the word ‘PURPLE’ has more impact on the consumer than the figurative element. The mark has no elements that can be considered dominant (visually outstanding).

The contested sign is a word mark, ‘The Purple Vision’. As already mentioned, the element ‘Purple’ is distinctive. On the other hand, the element ‘The’ would be perceived by the part of the public under analysis as a mere article introducing the word that follows and therefore it is lowly distinctive. The word ‘Vision’ has different meanings, (such as the ability to see, the area that you can see from a particular position, an idea or a picture in your imagination or the ability to think about or plan the future with great imagination and intelligence) and, therefore, has a normal distinctive character for the relevant services.

Visually, the signs coincide in the element ‘PURPLE’ which is the only verbal element of the earlier mark and plays an independent and distinctive role in the contested sign. It should be noted that the protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics that the mark might possess (22/05/2008, T‑254/06, RadioCom, EU:T:2008:165, § 43). Therefore, it is irrelevant whether a word mark, such as the contested sign in this case, is depicted in lower- or upper-case letters, or in a combination thereof. However, the signs differ in the additional elements of the contested sign ‘The’ and ‘Vision’ and in the figurative element of the earlier mark, the latter having less impact in consumers. Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the element ‘Purple’ which is the sole verbal element of the earlier mark and plays an independent and distinctive role in the contested sign. The pronunciation differs in the sound of the elements ‘The’ and ‘Vision’ in the contested sign. Therefore, the signs 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 the same meaning as regards ‘PURPLE’, and this meaning is not altered by the other elements of the contested sign, they are conceptually 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 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 services are identical or at least similar. The degree of attention of the relevant public, both the public at large and professional public, will vary from average to high. The earlier mark enjoys a normal degree of distinctiveness.

As established above, the signs are visually, aurally and conceptually similar to an average degree insofar as they coincide in the element ‘Purple’, which is the only verbal element of the earlier mark and plays an independent and distinctive role in the contested sign. The differences between the marks are not sufficient to outweigh the said similarities.

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. Indeed, it is highly conceivable that the relevant consumer, even with a high degree of attention, will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

Considering all the above, there is a likelihood of confusion on the part of 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 No 3 287 661. It follows that the contested trade mark must be rejected for all the contested services.

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, 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

Fernando AZCONA DELGADO

Martina GALLE

 

 

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.