OPPOSITION No B 3 070 863

Cemsel Tekstil Sanayi Ve Ticaret Anonim Sirketi, Baglar Mahallesi, Çesme Sokak, No:43, Günesli, Bagcilar-Istanbul, Turkey (opponent), represented by Ruttensperger Lachnit Trossin Gomoll, Patent- und Rechtsanwälte Partnerschaftsgesellschaft mit beschränkter Berufshaftung, Arnulfstrasse 58, 80335 München, Germany (professional representative)

a g a i n s t

Xiamen Worthfind Imp. & Exp. Co., Ltd, B-1, RM03, 8F, Bldg.D, Xiamen International Shipping Center, No. 97 Xiangyu Road, Xiamen, Fujian, People’s Republic of China (applicant), represented by The Trade Marks Bureau, Southgate House, Southgate Street, Gloucester GL1 1UD, United Kingdom (professional representative).

On 30/01/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 070 863 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 17 952 119 ‘MOMMORE’ (word mark), in Class 25. The opposition is based on European Union trade mark registration No 8 788 929 ‘MORE & MORE’ (word mark). 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 the following:

Class 25: Clothing, including babywear, sportswear, cycling clothing and outdoor clothing (included in class 25); footwear, including sports shoes and parts therefor (included in class 25); soles for footwear; headgear, including caps; gloves (clothing); underwear, linen (clothing); robes and pyjamas and sleeping masks; swimsuits, swimming trunks, bath robes, bathing caps; bath sandals and bath slippers; moneybelts (clothing), braces; hosiery; babies' diapers of textile.

The contested goods are the following:

Class 25: Clothing; Skirts; Dresses; Ponchos; Sweat-absorbent underwear; Corselets; Corsets [underclothing]; Pyjamas; Pajamas; Underpants; Brassieres; Cummerbunds; Childrens' clothing; Babies' pants [underwear]; Layettes [clothing]; Bibs, not of paper; Baby layettes for clothing; Raincoats; Rain ponchos; Shoes; Sports shoes; Hosiery; Sweat-absorbent underclothing.

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

The term ‘including’, used in the opponent’s list of goods, indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

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.

Clothing are identically contained in both lists of goods.

The contested skirts; dresses; ponchos; sweat-absorbent underwear; corselets; corsets [underclothing]; pyjamas; pajamas; underpants; brassieres; cummerbunds; childrens' clothing; babies' pants [underwear]; layettes [clothing]; baby layettes for clothing; raincoats; rain ponchos; hosiery; sweat-absorbent underclothing are included in the broad category of the opponent’s clothing. Therefore, they are identical.

The contested shoes; sports shoes are included in the broad category of the opponent’s footwear, including sports shoes and parts therefor (included in class 25). Therefore, they are identical.

The contested bibs, not of paper are similar to the opponent’s clothing. These goods can have the same producers, distribution channels and relevant public.

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 found to be identical or similar are directed at the public at large. The degree of attention is average.

c) The signs

MORE & MORE	MOMMORE
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 a word mark, ‘MORE & MORE’. It will be understood by the English-speaking public as something that is becoming greater in amount, extent, or degree all the time (information extracted from Collins English dictionary on 14/01/2020 at https://www.collinsdictionary.com/dictionary/english/more-and-more). Since it is a rather basic English expression, it will be understood in most Member States. As the opponent argues, for a part of the public, such as inter alia the Bulgarian, Croatian and Slovak-speaking part of the public, it may (also) be understood as sea and sea. In any way perceived by the above publics, it has no direct meaning in relation to the relevant goods and therefore, it is distinctive. For the remaining part of the public, that see no meaning at all in the elements ‘MORE’, only the ampersand symbol (‘&’) will be perceived. However, it will simply be understood as a conjunction used to connect the two verbal elements ‘MORE’ and ‘MORE’. Other than this connecting function, it does not in itself introduce any particular and distinctive concept. As the sign does not have any meaning, it is distinctive also for this part of the public.

The contested sign is a word sign, ‘MOMMORE’. It has no meaning for the relevant public and is, therefore, distinctive. Contrary to what the opponent claims, the Opposition Division considers that the relevant public is not likely to dissect the mark, but will perceived it as a whole.

Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Visually, the signs coincide in the letters ‘MO*****MORE’. However, they differ in the third and fourth letters ‘**RE’ and, not less significantly, in two gaps and an ampersand in between the two identical and distinctive words ‘MORE’ of the earlier sign, whereas the contested sign consists of one distinctive verbal element only. Moreover, they differ in an additional letter ‘M’ in the middle of the contested sign.

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

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‛MO*****MORE’, present identically in both signs. The ampersand in this three-part expression is pronounced in all relevant territories, as for example [MORE AND MORE] by the English-speaking public, [MORE A MORE] by the Slovak public and [MORE I MORE] by the Bulgarian-speaking public. The pronunciation differs in the sound of the third and fourth letters ‘RE’, in the ampersand of the earlier mark, in the rhythmic pauses of the two gaps and, furthermore, in the sound of the additional letter ‘M’ in the middle of the contested verbal element, constituting, for a significant part of the public, the pronunciation [mommo:re].

Therefore, the signs are aurally similar to a degree below average.

Conceptually, although a significant part of the public in the relevant territory will perceive a meaning in the earlier mark as explained above, the contested 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 for this part of the public.

For the remaining part of the public, neither of the signs has a meaning. 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.

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 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

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).

In the present case, the goods are identical or similar. They are directed at the public at large with an average degree of attention.

The signs are aurally similar to a degree below average and visually similar to a low degree, due to some coinciding letters. However, the earlier mark consists of three elements whereas the contested sign only consists of one. Furthermore, for a significant part of the public, the signs are not conceptually similar, and for the remaining part the conceptual aspect does not influence the assessment of the similarity of the signs. Therefore, the differences between the marks create by far a sufficient distance between the overall impressions given by the signs. The consumers will be able to safely distinguish between the signs at issue and will not assume that the goods offered come from the same undertaking.

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). Therefore, the considerable visual differences between the signs caused by the additional verbal elements in the earlier sign are particularly relevant when assessing the likelihood of confusion between them.

Considering all the above, and even considering that the goods are identical and similar, 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 (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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

Benoit VLEMINCQ

Lena FRANKENBERG GLANTZ

Katarzyna ZANIECKA

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.