OPPOSITION Nо B 3 071 461

 

W.L. Gore & Associates Inc, 555 Paper Mill Road P.O. Box 9329, 19714-9206 Newark, United States of America (opponent), represented by Taylor Wessing, Isartorplatz 8, 80331 München, Germany (professional representative) 

 

a g a i n s t

 

Calzarella, S.L., Avda. San Crispín, 114, 45510 Fuensalida, Spain (applicant), represented by Sogeprin, S.L., Calle Orgaz, 10 7ºc, 28019 Madrid, Spain (professional representative)

On 20/04/2021, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 071 461 is rejected in its entirety.

 

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

 

REASONS

 

On 18/12/2018, the opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 933 618 for the figurative mark , namely against all the goods in Class 25 and some of the services in Class 35. The opposition is based on European Union trade mark registration No 3 768 405 for the word mark 'GORE-TEX'. 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

 

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

 

Class 25: Clothing, footwear, headgear, gloves. 

Following a restriction submitted by the applicant on 22/11/2018, the contested goods and services are the following:

 

Class 25: Footwear, other than orthopaedic and for motorcyclists.

Class 35: Sale in shops and via catalogue and global computer networks of footwear in general and accessories therefor; Other than for goods for motorcyclists. 

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 25

The contested footwear, other than orthopaedic and for motorcyclists are included in the opponent's broad category of footwear. Therefore, they are identical.

Contested services in Class 35

As a preliminary remark, the Opposition Division notes that the sale of goods is not a service within the meaning of the Nice Classification. Therefore, the contested sale in shops and via catalogue and global computer networks of… must be understood as referring to the activity of retail or wholesale in the categories of goods specified, i.e. the bringing together, for the benefit of others, of the categories of goods listed (excluding the transport thereof), enabling customers to conveniently view and purchase those goods.

In this respect, retail and wholesale services concerning the sale of specific goods are similar to an average degree to these specific goods. Although the nature, purpose and method of use of these goods and services are not the same, they are similar because they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

Therefore, the contested sale in shops and via catalogue and global computer networks of footwear in general [other than for goods for motorcyclists] are similar to the opponent’s footwear in Class 25.

Furthermore, there is a low degree of similarity between the retail and wholesale services concerning specific goods and other goods which are either highly similar or similar to those specific ones. This is because of the close connection between them on the market from consumers’ perspective. Consumers are used to a variety of highly similar or similar goods being brought together and offered for sale in the same specialised shops or in the same sections of department stores, supermarkets or wholesale outlets as the case may be. Furthermore, they are of interest to the same consumers.

In this respect, footwear and footwear accessories such as inner soles belong to the same market sector, and it is customary practice to offer these goods together, because they are of interest to the same consumer.

Therefore, the contested sale in shops and via catalogue and global computer networks of accessories therefor [footwear in general other than for goods for motorcyclists] are similar to a low degree to the opponent's footwear in Class 25.

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 to varying degrees are directed at the public at large and at business customers with specific professional knowledge or expertise, in particular to the extent that the contested services may also concern wholesale services.

 

The degree of attention is considered to be average.

c) The signs

 

GORE-TEX
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 earlier mark is the word mark 'GORE-TEX' and the contested sign is a figurative mark consisting of the verbal element 'COReX', depicted in bold black upper case letters except the letter 'e' which is red and in lower case.

The word 'GORE' of the earlier mark is an English word meaning, inter alia, 'blood shed from a wound, esp when coagulated' (information extracted from Collins English Dictionary on 07/04/2021 at www.collinsdictionary.com/dictionary/english/gore) and may also have a meaning in some other languages. Furthermore, 'GORE' could refer to a surname. However, for the vast majority of the non-English-speaking public in the relevant territory, the word 'GORE', in the context of the earlier mark, will be perceived as a fanciful word without any meaning. Either way, it is distinctive to a normal degree since it will not be perceived as having any particular meaning in relation to the goods concerned.

As regards the word 'TEX' of the earlier mark, in some languages, such as English, it has the meaning of 'a unit of weight used to measure the density of yarns. It is equal to 1 gram per 1000 metres' (information extracted from Collins English Dictionary on 07/04/2021 at www.collinsdictionary.com/dictionary/english/tex) but is also an abbreviation of the word 'textile'. Therefore, in relation to the goods concerned (footwear) it will rather be perceived as having this latter meaning and be perceived as referring to the material of which the goods are made. It is, therefore, weakly distinctive.

As regards the perception of this word by the public in different parts of the relevant territory, the Opposition Division notes that the case-law of the Boards to this effect is inconsistent.

In Case 14/12/2016, R 903/2016-1, TREKTEX / TRES-TEX et al., § 32, it was considered that it cannot be supposed that for a Bulgarian or a Lithuanian person ‘TEX’ is the abbreviation for 'textile' since the equivalent word for ‘textile’ in those languages does not contain the letter ‘X’: Bulgarian текстилен - tekstilen; Lithuanian tekstilės.

Furthermore, in Case 28/11/2013, R 167/2013-5, T-TEX / TEX (FIG. MARK), § 20 it was held that the word ‘tex’ defines a unit of weight for the measurement of a textile’s density and, taking into account the nature of the goods at issue, it may be more generally perceived as alluding to ‘textile’ by a portion of the relevant public, such as, for instance, English- and French-speaking consumers (see, in that respect, decision of 16 January 2012 – R 273/2011-2 – TEX (Fig. Mark) / TEX). However, it is important to note that the word ‘tex’ would be meaningless for a significant portion of the public, such as, for instance, average Italian consumers (the Italian word for ‘textile’ is ‘tessile’, where the prefix ‘tex-’ is absent).

In addition, in Case 30/05/2018, R 1597/2017-4, max-Tex / TEX, § 28 it was claimed that the term ‘TEX’ is not known in France as an abbreviation for the word ‘textile’. It is therefore distinctive, even if part of the public may consider the term as alluding to, or evoking, the word ‘textile’ (20/05/2016, R 1459/2015-4, WARMTEX, § 22).

However, in Case 23/05/2016, R 1229/2015-4, modotex / TEX et al., § 19 it was found that in relation to the contested goods and services concerned, the relevant French-speaking consumer will perceive the part 'tex' as an abbreviation of the word 'textile' which is the same in French.

In this respect, the following is stated in the French dictionary insofar as the word 'tex' is concerned 'nom masculine (de textile)' with the definition 'unité de masse linéique employée dans le commerce des fibres textiles, égale à 1 g/km', meaning a unit of linear mass used in the textile fibre trade, equal to 1 g/km (information extracted from Larousse on 07/04/2021 at www.larousse.fr/dictionnaires/francais/tex/77620). Therefore, although the word 'tex' essentially has the same meaning as in English insofar as it refers to a measuring unit, it is clear that 'tex' derives from the word 'textile' as per the information provided in the dictionary. Therefore, the statement in other cases that ‘TEX’ is not known in France as an abbreviation for the word ‘textile’ seems highly unlikely, especially when perceived in relation to textile goods, including in relation to footwear which are commonly made from this material.

In Case 27/11/2015, R 895/2015-2, Perlatex (fig.) / Bellatex, § 31 it was also found that the term ‘tex’ defines a unit of weight for the measurement of a textile’s density and, taking into account the nature of the goods at issue, it may be more generally perceived as alluding to ‘textile’ by the German public as the words ‘Textilwaren’ (textiles) and ‘Textilien’ (linen, clothing, fabrics) are used in German.

Furthermore, in Case 07/04/2020, R 1185/2019-2, Tecta / texsa (fig.) et al., § 38 it was considered that the prefix ‘tex-’ would be understood by the relevant public and associated with ‘textile’. Taking into account that the consumers at issue would be aware of the fact that some of the products at issue could be made of textile, or textile like materials (geotextiles as insulating material for example), this interpretation of the element ‘tex-’ is highly likely. This holds true for both the Spanish- and the English-speaking consumers.

Apart from the above, as regards the relevant public in the European Union (i.e. throughout the relevant territory), the Boards considered that 'TEX' would be understood by the relevant consumers as per the following findings:

The suffix '-TEX' is usual in respect of textile products and a common and very weak trade mark element (05/03/2009, R 614/2008-1, GALTEX (FIG. MARK.) / KALTEX (FIG. MARK), § 22).

The term 'TEX' may be considered as descriptive when used in combination with textile products such as clothing and no right to the exclusive use of this term in connection with textile products can be claimed (see, to this effect, 17/03/2011, R 603/2010-1, KING-TEX (FIG. MARK) / QUEENTEX, § 34 and 48).

In view of the fact that the goods and services are concerned inter alia with the surface treatment of textiles, the final syllable of the contested application, ‘TEX’, points directly to the term ‘Textil’ [textile] (18/02/2016, R 2959/2014-5, CRYOTEX / CRYOTEC, § 20).

As a final remark, the Opposition Division also notes that as regards the refusal of an EUTM application based on absolute grounds, even if based on the perception of the English-speaking public in the European Union, the following statement was made insofar as the meaning of the term 'tex' is concerned:

With regard to ‘tex’, the examiner stated that it is an internationally understandable abbreviation for ‘textiles’. This is not even contested in the appeal (06/10/2014, R 1604/2014-4, TOUGHTEX, § 12).

 

Taking all the above cases into account, even if 'tex' may not be an official abbreviation for the word 'textile' throughout the European Union and even if this word may be somewhat different in some languages, such as tessile in Italian, текстилен – tekstilen in Bulgarian or tekstilė in Lithuanian, the Opposition Division considers that 'TEX' is a commonly and internationally used abbreviation for 'textile' in the textile industry in relation to textile goods, including for goods commonly made from textiles, such as clothing, footwear and headgear.

Therefore, the considerations made above concerning the perceived meaning and distinctiveness of the word 'TEX' of the earlier mark in relation to the goods concerned must be considered to apply not only to the English-speaking part of the public in the relevant territory but to the average consumer throughout the European Union.

As regards the hyphen in the earlier mark, it is a basic punctuation mark commonly used in both text and trade marks to combine two words/elements and is therefore devoid of any distinctive character as such.

Insofar as the contested sign is concerned, the applicant argues that 'COReX' refers to 'comfort', 'relax' and 'experience' and that the letter 'e' is depicted in red and lower case to emphasise the double use of this letter as the second letter of 'Re' (in relax) and the first letter of 'eX' (in experience). This perception of the contested sign is disputed by the opponent. In this respect, as pointed out by the opponent, the words 'comfort', 'relax' and 'experience' are not commonly abbreviated with the letters 'CO', 'Re' and 'eX' respectively and the relevant consumers will be unaware of the applicant’s intentions when creating the contested sign. Therefore, the relevant public is not likely to perceive any of those meanings in the contested sign as claimed by the applicant.

If anything, the letters 'COR' at the beginning of the contested sign and depicted as upper case letters in the same colour could potentially have a meaning in some languages, such as 'horn' in French or the letters 'ex' e.g. as referring to a person someone used to have a relationship with, in English. However, consumers normally perceive signs as a whole and do not proceed to analyse their various details and will only exceptionally break them down into different elements. Neither of the meanings referred to above has as such any obvious or direct connection to the goods and services concerned and the verbal element 'COReX' as a whole would not produce any logical conceptual unit in the mind of those consumers. Signs should not be artificially dissected into different components when it is not obvious that a part or parts of a word suggest a concrete meaning. Therefore, even if some of the letters of which the contested sign consists could be construed as having some meanings in some languages in the relevant territory as exemplified above, in the absence of any evidence to the contrary, irrespective of the different languages concerned in the relevant territory, the Opposition Division considers that any dissection of the verbal element of which the contested sign consists would be artificial within the context of that sign, when considered as a whole, and in relation to the goods and services concerned.

Therefore, even if the letter 'e' is depicted in red and as a lower case letter, since the verbal element 'COReX' does not have any obvious meaning for the relevant public in relation to the goods and services concerned, either in part or as a whole for the reasons set out above, it will rather be perceived as a whole, as consisting of a fanciful meaningless stylised word, which is, therefore, distinctive to a normal degree.

For the part of the public that may perceive a meaning in the word 'GORE' as outlined above, the earlier mark will be associated with a distinctive concept that is not present in the contested sign and which could thus help those consumers to more easily distinguish between the signs. Therefore, the Opposition Division will first examine the opposition in relation to the vast majority of the non-English-speaking public in the relevant territory for which the word 'GORE', in the context of the earlier mark, will be perceived as a fanciful word without any meaning. This is the most advantageous scenario for the opponent.

Visually, the signs coincide to the extent that their respective verbal elements 'GORE-TEX' and 'COReX' share the letters '*ORE(*)' in the same order and position as well as the letter 'X' as their respective last letter. However, the signs differ in the respective first letters 'G' and 'C', although there is some visual resemblance between them as argued by the opponent. The signs also differ in the additional letters 'TE*' in the second verbal element of the earlier mark, which are not present in the contested sign. Furthermore, even if the hyphen in the earlier mark is non‑distinctive as such, it still serves to immediately separate the earlier mark in two different words whereas the contested sign will be perceived as consisting of one fanciful word depicted in an unusual combination of upper and lower case letters in a contrasting colour combination (black and red). Consequently, the structure and overall impression produced by the signs is rather different, even if they share many of their letters.

 

Therefore, the signs are visually similar only to a low degree.

  

Aurally, the contested sign will be pronounced in two syllables as ‛CO-REX’ whereas the earlier mark will be pronounced either in three syllables as ‛GO-RE-TEX’ or in two syllables as ‛GOR (gɔːʳ)-TEX’, depending on the different pronunciation rules in different parts of the relevant territory. Therefore, irrespective of how the earlier mark is pronounced by the relevant public, the signs do not fully coincide in any of their syllables. Furthermore, the earlier mark will either be pronounced in three syllables or, when pronounced in two, the first syllable will produce a longer sound than the subsequent syllable whereas the contested sign will be pronounced in two short syllables. As a result, regardless of how the earlier mark is pronounced by consumers in different parts of the relevant territory and even if the signs share the sound of some of their letters, there are clear audible differences between them.

 

Therefore, the signs are aurally similar to, at most, an average degree.

  

Conceptually, although the public under analysis in the relevant territory will only perceive the weak concept of the word 'TEX' in the earlier mark 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.

 

According to the opponent, the earlier trade mark enjoys a high degree of distinctiveness as a result of its long standing and intensive use in the European Union in connection with the goods in Class 25 (outdoor clothing, sportswear and shoes). 

 

The opponent submitted the following evidence:

  

 Annex TW 1: An affidavit signed on 06/10/2017 by the head of the 'Fabrics Division' of the opponent’s English subsidiary declaring, inter alia, that during the period of 2012 to 2016 more than 10 million clothing articles per year, 80 million pairs of shoes, eight million pairs of gloves and more than 300.000 items of headgear were put on the EU market under the mark 'GORE-TEX'. It is also stated that the opponent has invested very extensively in long-term, intensive advertising campaigns all over the EU for its 'GORE-TEX'-branded products.

 

 Annex TW 2: A document in German entitled 'ISPO 2017 IN MUNCHEN. WIR SIND DABEI.' including a picture of the following outdoor advertising outside the main entrance:

 

 Annex TW 3: A handful of mostly undated internet extracts from the website www.goretex.de showing jackets, gloves, caps and shoes branded with 'GORE‑TEX'.

 

 Annex TW 4: 10 pictures of undated advertisements in German (two in English) in unknown magazines in relation to jackets, gloves and shoes and showing the following sign:

  

This claim must be properly considered given that the distinctiveness of the earlier trade mark must be taken into account in the assessment of likelihood of confusion. Indeed, the more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 18).

The earlier trade mark must have acquired enhanced distinctiveness prior to the time of filing of the contested EUTM application (or any priority date). The contested EUTM application was filed on 23/07/2018 and the earlier mark must thus have acquired enhanced distinctiveness prior to this date (and still at the time of the decision).

Enhanced distinctiveness requires recognition of the mark by the relevant public and, in making that assessment, account should be taken, in particular, of the inherent characteristics of the mark, including the fact that it does or does not contain an element descriptive of the goods or services for which it has been registered; the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 23).

The evidence of enhanced distinctiveness acquired through use must refer to both (i) the relevant geographical area and (ii) the relevant goods and/or services. The nature, factors, evidence and assessment of enhanced distinctiveness are the same as for reputation although the threshold for a finding of enhanced distinctiveness may be lower.

As regards the contents of the evidence, the more indications it gives about the various factors from which enhanced distinctiveness may be inferred, the more relevant and conclusive it will be. In particular, evidence which as a whole gives little or no quantitative data and information will not be appropriate for providing indications about vital factors, such as trade mark awareness, market share and intensity of use and, consequently, will not be sufficient to support a finding of enhanced distinctiveness.

Insofar as the affidavit is concerned, the probative value of this kind of evidence is generally given less weight than independent evidence since it has been drawn up by the interested parties themselves. Even if such statements cannot be considered to have no probative value at all, it is necessary to assess whether the contents of the declarations made are supported by the other items of evidence submitted. In this respect, the opponent did not submit any independent evidence to support the turnover figures mentioned, such as invoices or accounting documents. Furthermore, even if the remaining evidence submitted shows some use of the trade mark, at least in a part of the relevant territory, it does not provide any indication of the intensity, geographical scope or frequency of use of the mark or the extent of recognition of the mark by the relevant public. The opponent claims that the pictures shown in Annex TW 4 are advertisements that were published in hundreds of magazines in Europe. However, this claim is not supported by any evidence and the pictures themselves do not even show in which magazines those advertisements might have been included, where and when the magazines have been distributed or to which extent. Consequently, the statement in the affidavit that the opponent has invested very extensively in long-term, intensive advertising campaigns all over the EU is neither supported by the other evidence submitted. Furthermore, the mere picture of an outdoor advertising outside the main entrance of a trade fair in Munich in 2017, even if ISPO is the world’s biggest sports fair as alleged by the opponent, does not in itself provide any indications about vital factors such as market share or frequency and intensity of use.

As a result, the Opposition Division concludes that the evidence submitted by the opponent is clearly insufficient to prove the degree of recognition of the mark by the relevant public and does not demonstrate that the earlier trade mark acquired a high degree of distinctiveness through its use in relation to any of the goods in Class 25 as claimed.

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 under analysis in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of a weak element in the mark, as stated above in section c) of this decision.

 

e) 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.

In the present case, the goods and services are identical or similar to varying degrees and the degree of attention of the relevant public is average.

The distinctiveness of the earlier mark as a whole is normal and, for the part of the public under analysis, the signs have been found visually similar to a low degree, aurally similar to at most an average degree and conceptually not similar on account of the weak word 'TEX' in the earlier mark which is not present in the contested sign.

Even if the signs have been found to be aurally similar to (at most) an average degree, the degree of aural similarity between the two marks is of less importance in the case of goods or services which are marketed in such a way that, when making a purchase, the relevant public usually perceives visually the mark designating those goods or services (14/10/2003, T-292/01, BASS, EU:T:2003:264, § 54, 55).

In this respect, generally in clothes shops customers can themselves either choose the clothes they wish to buy or be assisted by the sales staff. Whilst oral communication in respect of the product and the trade mark is not excluded, the choice of the item of clothing is generally made visually. Therefore, the visual perception of the marks in question will generally take place prior to purchase. Accordingly the visual aspect plays a greater role in the global assessment of the likelihood of confusion (06/10/2004, T-117/03 - T-119/03 & T-171/03, NL, EU:T:2004:293, § 50). The same applies to the goods concerned (footwear) since the choice of such articles is also generally made visually. Therefore, even if the goods concerned are identical and the signs have some letters in common and are aurally similar to (at most) an average degree, the Opposition Division considers that the relevant public in the EU, who is reasonably well informed and reasonably observant and circumspect, will be able to clearly distinguish the signs in dispute since they are visually similar only to a low degree and do not have any concept in common that could facilitate a likelihood of confusion between them.

Furthermore, in relation to the relevant contested services in Class 35, they are only similar (to varying degrees) to the opponent’s goods and the visual aspect of the signs will also be more important than their phonetic aspect since the relevant public will generally perceive marks visually when using the retail or wholesale services in question, either as displayed on the signs of the establishments they go to or as shown on the relevant websites or in product catalogues if the services are used on-line or by mail order. Therefore, in the absence of a conceptual similarity between the signs and since their striking visual differences will not go unnoticed by the relevant public in relation to the contested services either, the phonetic similarities between the signs are likewise insufficient to lead to a likelihood of confusion between them.

As mentioned above, this is the best case scenario for the opponent since for the part of the public that may perceive a meaning in the word 'GORE' as outlined above in section c) of this decision, the earlier mark will be associated with another concept that is not present in the contested sign. As a result, for this part of the public the signs are even less similar to the extent that they will be perceived as conceptually dissimilar on the basis of a distinctive concept present only in the earlier mark.

Moreover, even assuming that there is a non-negligible part of consumers in the European Union, or in a part thereof, that would not associate the word 'TEX' in the earlier mark with the meaning of textile in relation to the goods concerned, but would rather perceive it as a fanciful word of normal distinctiveness, there would still be no likelihood of confusion between the signs in dispute irrespective of whether or not the word 'GORE' will be perceived as having a meaning by those consumers. In this respect, even if the verbal element 'TEX' of the earlier mark would be normally distinctive for that part of the public and would not lead to any conceptual difference between the signs, it would still be perceived as a separate word, as delimited by the hyphen contained in the earlier mark, which is not present in the contested sign. Therefore, also for this part of the public, the structure and overall impression produced by the signs would be rather different only leading to a low degree of visual similarity between them. Furthermore, the aural degree of similarity between the signs would be the same for the same reasons as those set out in the aural comparison made above in section c) of this decision. Moreover, neither for this part of the public would there be any concept in common that could facilitate a likelihood of confusion between the signs. Consequently, even these consumers would be able to clearly distinguish between the signs and would have no reason to believe that the identical or similar (to varying degrees) goods and services concerned originated from the same or economically linked undertakings.

 

Considering all the above, there is no likelihood of confusion on any part of the public in the relevant territory. 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

 

 

Loreto URRACA LUQUE

Sam GYLLING

Biruté SATAITE-GONZALEZ

 

 

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.