OPPOSITION No B 3 083 288

Fernando Medina Maseda, C/ Velázquez, 27, 1º Ext. Izq., 28001, Madrid, Spain (opponent), represented by Javier Serrano Irurzun, C/ Infanta Mercedes, 31, local 17, 28020, Madrid, Spain (professional representative)

a g a i n s t

Joventis S.A., 45 route d'Arlon, 8009 Strassen, Luxembourg (applicant), represented by Dennemeyer & Associates, 55 rue des Bruyères, 1274 Howald, Luxembourg (professional representative)

On 25/02/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 083 288 is upheld for all the contested services.

2. European Union trade mark application No 18 006 324 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

The opponent filed an opposition against all the services of European Union trade mark application No 18 006 324 ‘SAPPHIRE’ (word mark). The opposition is based on European Union trade mark registration No 10 164 655 . 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 services

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

Class 44: Hygienic and beauty care for human beings or animals.

The contested services are the following:

Class 44: Beauty care services for human beings.

These services are identical since they are included in the opponent’s services.

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 services found to be identical are directed at the public at large.

Taking into consideration the nature of the services and the fact that they affect someone’s appearance and may have an impact on its health, the degree of attention is considered to be higher than average.

c) The signs

	SAPPHIRE
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 contains a depiction of the word ‘SAPPHIRA’ in somewhat stylized capital letters of a green colour. The contested sign is a word mark ‘SAPPHIRE’. Both elements in the signs will undoubtedly be associated throughout the relevant territory with ‘a precious stone which is blue in colour’ (taken from https://www.collinsdictionary.com/dictionary/english/sapphire on 17/02/2020), due to the fact that the word exists as such in English and also due to visual and/or aural similarity to the equivalent words in other respective languages, for example:

Bulgarian (‘sapfir’), Croatian (‘safir’), Czech (‘safír’), Danish (‘safir’), Dutch (‘saffier’), Estonian (‘sefiir’), Finnish (‘safiiru’), French (‘saphir’), German (‘Saphir’), Hungarian (‘zafír’), Italian (‘zaffiroo’), Latvian (‘safīrs’), Lithuanian (‘safyras’), Maltese (‘żaffir’), Polish (‘szafir’), Portuguese (‘safira’), Romanian (‘safir’), Slovak (‘zafír’), Slovenian (‘safir’), Spanish (‘zafiro’) and Swedish (‘safir’).

In any event, in connection with the services in question, the signs have no meaning and are distinctive to an average degree.

Visually, aurally and conceptually, both signs have the same length; they coincide in the sequence of the letters ‘SAPPHIR*’ and only differ in the depiction of the earlier mark, their last letter and its sound ‘A’ versus ‘E’. Moreover, they bring to mind the same concept.

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. Therefore, the different letter/sound at the end of the signs is outweighed by the coincidence at the beginning of the signs.

Moreover, the difference in sound of the last letters is not particularly striking nor is the letter type of the earlier mark or its colour.

Therefore, the signs are, on all levels, similar to – at least – an average degree.

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 services 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 contested services are identical to the opponent’s services and they target the general public whose degree of attention will be higher than average. The earlier mark enjoys an average degree of inherent distinctiveness and the signs are at least similar on all levels.

The signs coincide in seven out of eight letters, placed at the beginning of each sign. The differences lie in the letter type and colour of the earlier mark and the last letter of each sign. However, considering that consumers read from left to right, a difference at the very end of the signs is of minor importance.

Account is taken of the fact that 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). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T 443/12, ancotel, EU:T:2013:605, § 54).

In view of the foregoing, the differences between the signs are clearly insufficient — even for a public with a higher degree of attention — to counteract the readily perceptible similarities between the signs, and to safely rule out any likelihood of confusion between the trade marks.

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded and it follows that the contested trade mark must be rejected in its entirety.

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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Loreto URRACA LUQUE

Cynthia DEN DEKKER

Christophe DU JARDIN

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.