OPPOSITION No B 3 064 546

Ewalia KG, Lambach 11, 8323, Nestelbach bei Graz, Austria (opponent)

a g a i n s t

Ιωάννης Χρυσοφός, Λεωφόρος Βουλιαγμένης 500, 17456, Αλιμος, Greece (applicant),

On 28/11/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 064 546 is partially upheld and European Union trade mark application No 17 940 014 is rejected for all the contested goods with the exception of:

Class 3: Lipstick cases; adhesives for false eyelashes (mentioned twice), hair and nails; fake blood; eyelashes; self-adhesive false eyebrows; nail art stickers (mentioned twice); adhesives for affixing false eyebrows; false eyelashes; adhesives for affixing artificial fingernails; adhesives for affixing false eyebrow; abrasive boards for use on fingernails; abrasive emery paper for use on fingernails; abrasive paper for use on the fingernail; abrasive boards for use on fingernails; abrasive emery paper for use on fingernails; abrasive paper for use on the fingernails; ; fingernail overlay material; artificial fingernails of precious metal; double eyelid tapes.

2. Consequently, the application may proceed for the abovementioned goods only.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 17 940 014 for the figurative mark , namely against all the goods in Class 3. The opposition is based on European Union trade mark registration No for the word mark ‘Ewalia’. 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.

1. The goods

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

Class 3: Animal grooming preparations; herbal extracts for cosmetic purposes.

After limitation done by the applicant on 18/06/2019, the contested goods are the following:

Class 3: Essential oils and aromatic extracts; cosmetics; oils for toilet purposes; ointments for cosmetic use; geraniol for cosmetic use; pumice stone; perfumed body lotions [toilet preparations]; aloe vera gel for cosmetic purposes; impregnated cleaning pads impregnated with toilet preparations; impregnated cleaning pads impregnated with cosmetics; facial preparations; cosmetics for personal use; cosmetics and cosmetic preparations; ethereal oils; essential oils of sandalwood; peppermint crude oil; almond oil; floral water; essential vegetable oils; aromatic oils; aromatherapy preparations; lavender oil; mint essence [essential oil]; perfumery, essential oils; emulsified essential oils; geraniol; aromatherapy oil; natural oils for cosmetic purposes; perfumery and fragrances; fragrances; perfumed creams; scented body lotions and creams; extracts of perfumes; aromatics for fragrances; synthetic perfumery; natural perfumery; body sprays [non-medicated]; bay rums; cologne impregnated disposable wipes; aromatherapy creams; scented water; perfumed toilet waters; lavender oil for cosmetic use; natural oils for perfumes; deodorants and antiperspirants; make-up; hair removal and shaving preparations; hair preparations and treatments; skin, eye and nail care preparations; bath preparations; soaps and gels; anti-perspirant deodorants; deodorants for human beings; personal deodorants; deodorants, for personal use in the form of sticks; feminine deodorant sprays; antiperspirants [toiletries]; deodorant soap; body sprays; liquid eyeliners; eyeliner; cuticle oil; cheek colors; face paint; body paint (cosmetic); cosmetic preparations for eyelashes; make-up removing milks; tanning milks [cosmetics]; lip glosses; face glitter; face and body glitter; decorative cosmetics; lipstick cases; colour cosmetics for the eyes; lip cosmetics; concealers; lip coatings [cosmetic]; cosmetics in the form of rouge; cosmetics in the form of eye shadow; cosmetics in the form of gels; cosmetic pencils for cheeks; cosmetic eye pencils; adhesives for false eyelashes, hair and nails; lip stains [cosmetics]; lip rouge; lipsticks; cosmetic creams; creams for tanning the skin; make up foundations; self tanning creams [cosmetic]; camouflage cream; fair complexion cream; base cream; chalk for make-up; lip gloss palettes; facial concealer; concealers for spots and blemishes; mousses [cosmetics]; powder for make-up; cosmetic face powders; beauty masks; liners [cosmetics] for the eyes; cosmetic rouges; eye concealers; concealers for lines and wrinkles; colour cosmetics; skin foundation; eyeshadow palettes; make-up removing preparations; lip liners; eye pencils; under-eye enhancers; eyebrow pencils; eyelid pencils; blush pencils; make-up pencils; eyeliner pencils; face powder (non-medicated -); facial wipes impregnated with cosmetics; eyelid doubling makeup; eyebrow gel; eyebrow mascara; long lash mascaras; mascara; cosmetic paste for application to the face to counteract glare; self tanning lotions [cosmetic]; make-up removing lotions; cosmetic white face powder; creamy foundation; sun creams; suntan creams; make-up kits; creamy rouge; rouges; make-up for the face and body; make-up for the face; skin make-up; make-up for compacts; cover sticks; eyes make-up; make-up bases in the form of pastes; temporary tattoos for cosmetic purposes; face powder in the form of powder-coated paper; pressed face powder; solid powder for compacts [cosmetics]; powder compact refills [cosmetics]; multifunctional makeup; powder compacts [cosmetics]; compacts containing make-up; loose face powder; face powder; make-up preparations for the face and body; artificial tanning preparations; sun bronzers; self-tanning preparations [cosmetics]; eyebrow colors in the form of pencils and powders; eyebrow colors; eyebrow cosmetics; liquid foundation (mizu-oshiroi); liquid rouge; moist paper hand towels impregnated with a cosmetic lotion; make-up removing gels; glitter for cosmetic purposes; eyelid shadow; eyebrow powder; fake blood; shaving oils; depilatory preparations; depilatory lotions; shaving foam; shaving balm; aftershave milk; aftershave moisturising cream; after-shave gel; depilatory wax; depilatory creams; aftershave creams; shaving cream; pre-shaving lotions; shaving lotion; wax strips for removing body hair; aftershave balms; shaving preparations; shaving sticks [preparations]; shaving sprays; shaving sets, comprised of shaving cream and aftershave; after-shave lotions; shaving stones; shaving preparations in liquid form; oils for hair conditioning; oil baths for hair care; beard oil; combing oil; hair fixing oil;

bleaching preparations [decolorants] for cosmetic purposes; mousses [toiletries] for use in styling the hair; mousses being hair styling aids; hair mousse; hair protection mousse; styling mousse; beard balm; hair balsam; hair dyes; beard dyes; hair moisturisers; neutralizers for permanent waving; neutralizing hair preparations; hair gel; hair protection gels; styling gels; gel sprays being styling aids; hair permanent treatments; hair desiccating treatments for cosmetic use; hair preservation treatments for cosmetic use; hair conditioners for babies; hair conditioners; hair emollients; conditioning balsam; hair moisturising conditioners; colouring lotions for the hair; hair protection lotions; styling lotions; hair care lotions; hair lotions; lotions for beards; wave-set lotions; hair protection creams; creams for fixing hair; hair care creams; hair creams; hair permanent wave kit; hair wax; moustache wax; cosmetic hair lotions; cosmetic hair dressing preparations; cosmetic preparations for the hair and scalp; cosmetics for the use on the hair; hair strengthening treatment lotions; hair glaze; hair tinting preparations; hair care serums; hairstyling serums; hair serums; hydrogen peroxide for use on the hair; dry shampoos; pomades for cosmetic purposes; stick pomade; hair pomades; brilliantine; non-medicated hair shampoos; non-medicated shampoos; non-medicated hair treatment preparations for cosmetic purposes; non-medicated preparations for the relief of sunburn; hair waving preparations; baby hair conditioner; conditioning creams; conditioners in the form of sprays for the scalp; emollient shampoos; hair conditioner bars; hair care masks; hairstyling masks; hair masks; hair mascara; styling paste for hair; products for protecting coloured hair; detanglers; wax treatments for the hair; hair dressings for men; beard care preparations; hair nourishers; hair rinses [for cosmetic use]; hair fixers; hair lighteners; preparations for protecting coloured hair; permanent waving and curling preparations; hair texturizers; hair bleaching preparations; hair powder; hair styling waxes; hair straightening preparations; preparations for setting hair; hair care preparations, not for medical purposes; hair grooming preparations; hair dyeing preparations; preparations for protecting the hair from the sun; permanent waving lotions; hair frosts; cold waving solutions; tints for the hair; hydrogen peroxide for cosmetic purposes; hair liquids; hair tonic [non-medicated]; hair tonic; gels for fixing hair; refill packs for shampoo dispensers; refill packs for hair fixer dispensers; hair spray; hair-washing powder; shampoo bars; baby shampoo mousse; shampoo-conditioners; shampoos for human hair; dandruff shampoo; dandruff shampoos, not for medical purposes; baby shampoo; shampoos for personal use; shampoos; hair rinses [shampoo-conditioners]; nail base coat [cosmetics]; sparkling fluid for the body; salves [non-medicated]; almond milk for cosmetic purposes; sunscreen cream; spf sun block sprays; sun blocking lipsticks [cosmetics]; anti-aging moisturizers; creams for cellulite reduction; sun protecting creams [cosmetics]; eyelashes; nail polish top coat; nail varnish; nail polish pens; nail varnish for cosmetic purposes; eyelash dye; nail primer [cosmetics]; nail polish base coat; petroleum jelly for cosmetic purposes; cleansing balm; cleansing mousse; self-adhesive false eyebrows; nail art stickers; adhesives for affixing false eyebrows; perfumed oils for skin care; anti-wrinkle cream; whiting; nail polishing powder; nail glitter; hand milks; body emulsions; cleansing milks for skin care; milky lotions for skin care; moisturizing milk; nail gel; false eyelashes; nail cosmetics; moisturising gels [cosmetic]; fingernail sculpturing overlays; moisturising body lotion [cosmetic]; moisturising creams, lotions and gels; moisturising concentrates [cosmetic]; moisturising skin creams [cosmetic]; nail strengtheners; body oil spray; after sun moisturisers; body oils [for cosmetic use]; face gels; eye gels; cosmetic products in the form of aerosols for skincare; cosmetics in the form of milks; lip protectors [cosmetic]; facial cleansers [cosmetic]; cosmetic moisturisers; cosmetic products for the shower; sun-tanning preparations [cosmetics]; cosmetic skin enhancers; cosmetics for use in the treatment of wrinkled skin; cosmetic preparations for skin firming; facial care preparations; cosmetic nail care preparations; skin cleansers [cosmetic]; wrinkle-minimizing cosmetic preparations for topical facial use; cosmetic preparations for nail drying; cosmetics for protecting the skin from sunburn; cosmetic preparations for dry skin during pregnancy; cosmetic preparations for skin renewal; cosmetic eye gels; cosmetics for the treatment of dry skin; sun-tanning gels; cosmetic oils for the epidermis; cosmetics in the form of lotions; adhesives for affixing false eyelashes; adhesives for affixing artificial fingernails; glue for strengthening nails; nail cream; night cream; eye cream; body mask cream; lip cream; cosmetic hand creams; cosmetic creams for dry skin; beauty tonics for application to the face; beauty tonics for application to the body; anti-aging creams; cleansing creams; day creams; moisturising creams; face and body creams; make-up removing creams; skin lightening creams; skin cream; face creams for cosmetic use; body cream; night creams [cosmetics]; hand creams; abrasive boards for use on fingernails; abrasive emery paper for use on fingernails; abrasive paper for use on the fingernails; nail whiteners; lotions for face and body care; aromatherapy lotions; lotions for cellulite reduction; lotions for strengthening the nails; wipes impregnated with a skin cleanser; cuticle softeners; skin conditioners; cleansing masks; skin masks [cosmetics]; lotions for cosmetic purposes; nail tips [cosmetics]; face packs; non-medicated scalp treatment cream; non-medicated moisturisers; false nails; nail care preparations; skin emollients [non-medicated]; non-medicated face care preparations; exfoliating scrubs for the face; exfoliating scrubs for cosmetic purposes; nail varnish remover [cosmetics]; skin fresheners; nail hardeners [cosmetics]; preparations for reinforcing the nails; gel nail removers; nail repair preparations; fingernail tips; nail conditioners; microdermabrasion polish; facial toners [cosmetic]; skin cleansers; facial moisturisers [cosmetic]; eye make up remover; nail varnish removers; fingernail overlay material; toners for cosmetic use; artificial fingernails of precious metal; artificial nails for cosmetic purposes; double eyelid tapes; refill packs for body cleansing product dispensers; skin lightening compositions [cosmetic]; nail polish remover pens; powder for forming sculpted finger nail tips; eyebrows [false]; false toenails; bath soak for cosmetic use; bath oils for cosmetic purposes; bath foam; shower and bath foam; bath milk; foaming bath gels; baby bubble bath; bath foams (non-medicated -); bath lotions (non-medicated -); bath preparations, not for medical purposes; non-medicated body soaks; non-medicated bath salts; non-medicated bath oils; bath gel; bath creams (non-medicated -); cosmetic preparations for baths; bath concentrates (non-medicated -); bath soap; bath powders (non-medicated -); bubble bath; bath pearls; foaming bath liquids; aromatic oils for the bath; scented bathing salts; bath bombs; bath oil; bath salts, not for medical purposes; baby bath mousse; waterless soap; scented soaps; bath and shower gels, not for medical purposes; cosmetic soaps; shower gels; non-medicated soaps; body cream soap; creams (soap -) for use in washing; toilet soap; body washes; vaginal washes for personal sanitary or deodorant purposes; cleansers for intimate personal hygiene purposes, non medicated; exfoliating scrubs for the hands; exfoliating scrubs for the feet; cakes of soap for body washing; cleaning agents for the hands; non-medicated toilet soaps; shower creams; cream soaps; carbolic soaps; soap products; soap solutions; almond soap; soap for foot perspiration; liquid soaps for hands and face; liquid soap used in foot bath; liquid bath soaps; gels for cosmetic use; sponges impregnated with soaps; refill packs for hand soap dispensers; refill packs for shower gel dispensers; hand soaps; soaps in liquid form; paper soaps for personal uses; soaps in gel form; granulated soaps; soaps for body care; loofah soaps; aloe soap; shower soap; antiperspirant soap; soaps for personal use; soap; facial soaps; skin soap; all the above goods are for human beings.

In order to avoid unnecessary repetitions, the Opposition Division will only quote the goods that are considered to be dissimilar to the opponent´s goods, which are lipstick cases; adhesives for false eyelashes (mentioned twice), hair and nails; fake blood; eyelashes; self-adhesive false eyebrows; nail art stickers (mentioned twice); adhesives for affixing false eyebrows ; false eyelashes; adhesives for affixing artificial fingernails; adhesives for affixing false eyebrow; abrasive boards for use on fingernails; abrasive emery paper for use on fingernails; abrasive paper for use on the fingernail; abrasive boards for use on fingernails; abrasive emery paper for use on fingernails; abrasive paper for use on the fingernails; fingernail overlay material; artificial fingernails of precious metal; double eyelid tapes.

Indeed, the opponent´s goods namely animal grooming preparations and herbal extracts for cosmetic purposes are used to improve appearance of animals whilst the latter set of goods include a wide range of aromatic extracts or compounds (synthetic or organic) that are used (among others) primarily for giving a fragrance (as in perfume products) and in scenting cosmetic products. In fact, herbal extracts for cosmetic purposes are usually one of the main ingredients in many cosmetic products and perfumes. However, the goods above are clearly not intended for animals and moreover, they are not cosmetics per se as they are either accessories or adhesive goods for cosmetic products. Even if some of these goods are ultimately used to improve appearance (such as the fingernail overlay material or the eyelid tapes) they are not products that are scented and indeed extracts are not used in any way. These conflicting goods differ in their manufacturers, points of sale, nature and method of use. Moreover, they are neither complementary nor in competition, being therefore, dissimilar.

The remaining contested goods can be divided into the following relevant categories of goods:

Toiletries; essential oils and aromatic extracts; perfumery and fragrances; body cleaning and beauty care preparations; skin, eye and nail care preparations; soaps and gels; hair preparations and treatments; bath preparations; deodorants and antiperspirants; make-up; hair removal and shaving preparations.

As already explained above, the opponents herbal extracts for cosmetic purposes are used in a range of beauty and give fragrance to products such as those above.

Even if it cannot be excluded that some of the contested goods would coincide in numerous relevant criteria such as their nature, purpose, method of use, their complementarity, whether they are competing goods or that they are even identical, these goods clearly belong to one homogeneous sector of products on the market and for the majority of them they are - at least - produced by the same companies, target the same end user and are being sold through the same channels of distribution.

It follows, therefore, that these contested goods are at least similar to a low degree to the opponent’s goods.

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, at least, similar to a low degree are directed at the public at large that will display an average degree of attention.

3. The signs

Ewalia
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 Opposition Division finds it appropriate to focus on the Spanish speaking part of the public as ‘W’ and ‘V’ could be identically pronounced thus leading to a higher degree of similarity in this aspect.

Neither ‘Ewalia’ nor ‘EVIALIA’ have a meaning for the public in the relevant territory and they both enjoy an average degree of distinctive character.

The figurative element contained in the contested sign will be perceived as a flower or as leaves and, to that extent, as a clear allusion of the nature or characteristics of the goods protected by the contested sign. As a consequence, its degree of distinctiveness will be low. In addition, 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).

It follows that the contested sign has no element more dominant (eye catching) than others.

Visually and aurally, the signs coincide in the string of letters ‘E*alia’ and their sounds constituting the five out of the six letters of the earlier mark and seven in the contested sign. However, they differ in the additional letter ‘*Vl*’ (and their sound) of the contested sign versus ‘W’ in the earlier mark. However, these differing letters will not have a significant impact. First, in the relevant territory the etters ‘V’ and ‘W’ look and can be pronounced in a very similar way. Second, the two differing letters are placed among coinciding letters and close to an identical letter ‘A’.

It must be noted that the protection offered by the registration of word marks applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics which that mark might possess (judgment of 22/05/2008, T-254/06, RadioCom, EU:T:2008:165, § 43). Consequently, it is irrelevant whether the earlier mark is depicted in lower or upper case letters or in a combination thereof. In a similar vein, the stylisation used in the contested sign will be perceived as serving a purely decorative function and thus has little, if any impact, on the comparison.

Given the degree of distinctiveness that has been given to the figurative elements contained in the contested sign, the signs are visually and aurally similar to an above average degree.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark has no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as average.

5. Global assessment, other arguments and conclusion

The goods in conflict have been found to be partly similar (at least to a low degree) and partly dissimilar and they are directed at the public at large that will display an average degree of attention when purchasing them. The earlier mark enjoys an average degree of distinctiveness.

Moreover, the signs present similarities on an above average degree from the visual and aural perspective while conceptually, no comparison can be done.

In the present case, the similarity between the signs lies in the fact that almost all the letters of the earlier mark are identically reproduced in the verbal element of the contested sign, albeit accompanied by the additional letters ‘V’ and ‘l’, which does not produce any significant aural or visual difference.

Moreover, the figurative element and the stylisation of the contested sign are not striking enough as to distract the consumer’s attention from its verbal element, especially if we take into account that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Spanish-speaking part of the public. Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 16 540 445. 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 at least similar to a low degree to those of the earlier trade mark. 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

The Opposition Division

Vanessa PAGE

Alexandra APOSTOLAKIS

Carlos MATEO PÉREZ

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.