OPPOSITION No B 3 075 109

SMA Solar Technology AG, Sonnenallee 1, 34266 Niestetal, Germany (opponent), represented by LOESENBECK SPECHT DANTZ, Am Zwinger 2, 33602 Bielefeld, Germany (professional representative)

a g a i n s t

Murat Sozen, Sint-Maartenlaan 31, 3550 Zolder, Belgium (applicant).

On 1/17/2020 , the Opposition Division takes the following

DECISION:

1. Opposition No B 3 075 109 is rejected in its entirety.

2. The opponent bears the costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 17 978 321 for the word mark ‘CONCEV’. The opposition is based on German trade mark registration No 302 018 100 615 and on international trade mark registration No 1 421 299 designating the European Union, both for the word mark ‘CONEVA’. 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 and services

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

German trade mark registration N 302 018 100 615 and international trade mark registration No 1 421 299 designating the European Union

Class 9: Apparatus and instruments for conducting, switching, transforming, storing, regulating and controlling electricity; apparatus and instruments for measuring and analysing electricity; software for use in the energy sector; electric display apparatus for use in the energy sector; inverters; mobile software applications for use in the energy sector.

Class 37: Installation, maintenance and repair of energy saving devices; installation, maintenance and repair of energy producing installations; repair and maintenance of energy producing installations, namely monitoring and regulation of energy flow.

Class 39: Distribution of energy; storage of energy; information and advisory services in relation to the distribution and storage of energy.

Class 42: Recording data relating to energy consumption in buildings; consultancy in the field of energy-saving, energy input and energy efficiency; consultancy relating to technological services in the field of power and energy supply; energy audits; development of energy and power management systems; design and development of energy management software; research in the field of energy; engineering services in the field of energy technology; technological analysis relating to energy and power needs of others; technological consultancy in the fields of energy production and use; energy auditing; programming of software and apps for the energy sector; certification services for the energy efficiency of buildings; hosting platforms and portals for the energy sector.

The contested goods and services are the following:

Class 7: Emergency power generators; electrical generators using solar cells; power installations [generators]; solar power generators; power supply apparatus [generators]; electric power generators for emergency use; generating plant; electric generator power sets; mobile electrical power generators; wind-powered electricity generators; electric power generators for ships; emergency power supply generators; electrical generator stations.

Class 9: Uninterruptible power supply apparatus [battery]; uninterruptable power supply apparatus; solar batteries for domestic use; solar batteries for industrial use; batteries; accumulators for photovoltaic power; battery packs; accumulators, electric; batteries, electric; uninterruptible electrical power supplies; rechargeable batteries; rechargeable electric batteries; solar-powered rechargeable batteries; electricity storage apparatus; apparatus and instruments for accumulating electricity; electrical cells and batteries; auxiliary battery packs; power banks; apparatus and instruments for accumulating and storing electricity.

Class 39: Storage of electricity; distribution of renewable energy; distribution of electricity to households; distribution of energy; supply of electricity; electricity distribution.

Some of the contested goods and services are identical or similar to goods and services on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above. The examination of the opposition will proceed as if all the contested goods and services were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 assumed to be identical are directed at the public at large (e.g. batteries; apparatus and instruments for conducting, switching, transforming, storing, regulating and controlling electricity) and at a specialised public (e.g. wind-powered electricity generators; electrical generator stations). The degree of attention may vary from average to high, depending of the kinds of the goods and frequency of purchase.

However, the degree of attention for the services will be high, considering their mainly specialised and sophisticated nature.

c) The signs

coneva	CONCEV
Earlier trade mark	Contested sign

The relevant territories are Germany and 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).

As both earlier marks refer to the same sign, namely ‘coneva’, in the following examination they will be referred to in the singular as ‘the earlier mark’.

Both the earlier mark ‘coneva’ and the contested sign ‘CONCEV’ would be perceived by the relevant public as meaningless and, therefore, they are distinctive to an average degree in relation to the goods and services at issue. However, even if part of the public in some countries such as Bulgaria and other Slavic-speaking countries were to perceive the signs as family names, mainly because of their endings, this would not lead to any descriptiveness, and the signs are also distinctive for this public.

As all signs are word marks, the words as such are protected. Consequently, the use of upper or lower case is irrelevant. The signs do not have any element that is more eye-catching than others.

Visually, the signs coincide in the letters ‘CON’ at the beginning of each sign. They both contain the letters ‘E’ and ‘V’, albeit in different positions in each sign: the letter ‘E’ is the fourth letter of the earlier mark and the fifth letter of the contested sign, while ‘V’ is the last letter of the contested sign and the fifth (penultimate) letter of the earlier mark. However, despite the coincidence in the letters ‘E’ and ‘V’, the signs overall have different endings, namely ‘-EVA’ for the earlier mark and ‘-CEV’ for the contested sign. This is because the relevant public will perceive the signs as a whole, and not as individual letters in the earlier mark to be later checked for coinciding letters in the contested sign.

Therefore, the signs are visually similar to 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 first three letters ‘CON’. However, they differ in the sound of the remaining letters. On account of their differing letters, their intonation and rhythm are different. Moreover, the ending sound of the earlier mark, the vowel ‘a’, is quite noticeable.

Therefore, the signs are aurally similar to a low degree.

Conceptually, for part of the relevant public neither of the signs has a meaning. Therefore, since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

However, part of the public can perceive the signs as family names. The fact that both marks may be perceived as surnames is on its own neutral for the comparison (12/09/2011, R 1429/2010‑4, VANGRACK / VAN GRAAF, § 30). This is because the public is not likely to make the conceptual link between the two words.

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

The likelihood of confusion must be appreciated globally, taking into account all the factors relevant to the circumstances of the case; this appreciation depends on numerous elements and, in particular, on the degree of recognition of the mark on the market, the association that the public might make between the two marks and the degree of similarity between the signs and the goods and services (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

The goods and services are assumed to be identical. The signs are visually and aurally similar to a low degree and the conceptual aspect does not influence the assessment of the similarity of the signs. The degree of attention of the public varies from average to high for the goods and is high for the services.

Two marks are similar when, from the point of view of the relevant public, they are at least partly identical as regards one or more relevant aspects (23/10/2002, T‑6/01, Matratzen + Matratzenmarkt Concord (fig.), EU:T:2002:261, § 30). The coincidence must, therefore, be ‘relevant’ from the perspective of the consumer, who usually perceives a mark as a whole and does not proceed to analyse its various details (13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58).

Although the signs coincide visually and aurally in the string of letters ‘CON’ and share the letters ‘E’ and ‘V’ (but in different positions within the signs), there is no likelihood of confusion as the coincidences are only limited to letters that do not have an independent distinctive role within the signs and, moreover, the signs have different endings. The differences between the signs are clearly perceivable and contribute to an overall impression of the contested sign that is sufficiently different from that of the earlier mark so as to not lead the relevant public into believing that the goods in question, under the assumption that they bear the signs in question, come from the same undertaking or, as the case may be, from economically linked undertakings. The fact that both signs share the first three letters in the same order and two other letters in different positions does not suffice on its own for establishing a likelihood of confusion. Furthermore, there is no reason why the relevant public would artificially single out the string of letters ‘CON’ and attach any particular importance to it, since it is not perceptible as an individual element.

The alphabet is made up of a limited number of letters and therefore it is inevitable that many words will have some letters in common. In addition, the public is not, in general, aware of the exact number of letters in a word mark and, consequently, will not notice, in the majority of cases, that two conflicting marks have the same number of letters (25/03/2009, T‑402/07, ARCOL / CAPOL, EU:T:2009:85, § 81-82; 04/03/2010, C‑193/09 P, ARCOL / CAPOL, EU:C:2010:121).

The fact that consumers will generally remember the beginning of a mark rather than the end cannot hold in all cases and does not, in any event, cast doubt on the principle that the assessment of the similarity of marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a trade mark as a whole and does not analyse its different aspects (12/06/2018, T‑136/17, cotecnica MAXIMA (fig.) / MAXIM Alimento Superpremium (fig.), EU:T:2018:339, § 60). With this in mind, it is the overall impression produced by the marks that should be taken into consideration and not any individual parts in isolation.

Although average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26), this does not automatically mean that they tend to retain the similarities of the marks more than the differences. It cannot be generally assumed that the elements of difference between the marks would tend to become less marked in the consumer’s memory in favour of the elements of similarity. In accordance with settled case-law, the extent of the similarity or difference between the signs at issue may depend, in particular, on the inherent qualities of the signs (13/05/2015, T‑169/14, Koragel / CHORAGON, EU:T:2015:280, § 84). As mentioned above, there is no reason for the public to single out any particular element of the signs and to compare two distinctive meaningless words only on the basis of the coinciding first three letters.

Considering all the above, the Opposition Division finds that there is no likelihood of confusion on the part of the public, even for identical goods and services. Therefore, the opposition based on opponent’s German trade mark registration No 302 018 100 615 and on international trade mark registration No 1 421 299 designating the European Union 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. In the present case, the applicant did not appoint a professional representative within the meaning of Article 120 EUTMR and therefore did not incur representation costs.

The Opposition Division

Irena LYUDMILOVA LECHEVA

Maria SLAVOVA

Francesca CANGERI

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.