OPPOSITION No B 3 072 227

BH Bikes Europe, S.L., Perretagana, 10, 01015 Vitoria - Alava, Spain (opponent), represented by Maria Alicia Izquierdo Blanco, General Salazar, 10, 48012 Bilbao, Spain (professional representative)

a g a i n s t

Cybex GmbH, Riedingerstr. 18, 95448 Bayreuth, Germany (applicant), represented by Meissner Bolte Patentanwälte Rechtsanwälte Partnerschaft mbB, Widenmayerstraße 47, 80538 Munich, Germany (professional representative).

On 19/03/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 072 227 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 950 819 ‘Aton’. The opposition is based on European Union trade mark registration No 15 874 381 ‘ATOM’. The opponent invoked Article 8(1)(a) and (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 12: Electric mountain bikes.

Following a limitation filed on 17/04/2019, the contested goods are the following:

Class 12: Child safety seats for automobiles and parts and fittings therefor; vehicle booster seats for children for automobiles; components and accessories for children's safety seats for automobiles, namely cushions, paddings, seatbelts, car seat carriers, car seat adaptors, seat covers for automobiles, car seat liners; safety belts for car seats for pregnant women.

An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods.

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

Moreover, 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.

The contested goods are children safety seats and their parts and fittings specifically meant for automobiles while the opponent’s goods are electric bicycles. Contrary to the opinion of the opponent, these goods do not belong to the same business area. Indeed, as correctly mentioned by the applicant, the contested goods have specificities and properties that only allow them to be used with automobiles and not with bicycles. Therefore, they are not goods that are in competition or complementary. Moreover, the contested goods target parents who need to drive with children or pregnant women while the opponent’s bicycles target cyclists. The reality of the market also shows that the goods in question are not manufactured by the same companies and, as a consequence, consumers would not expect to find them at the same points of sales. Therefore, the goods are dissimilar.

2. Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR because the goods are obviously not identical.

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

Anna ZIÓŁKOWSKA

Sandra IBAÑEZ

Marianna KONDAS

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.