OPPOSITION No B 3 078 303

LOWA Sportschuhe GmbH, Hauptstr. 19, 85305 Jetzendorf, Germany (opponent), represented by Weickmann & Weickmann Patent- und Rechtsanwälte PartmbB, Richard-Strauss-Str. 80, 81679 München, Germany (professional representative)

a g a i n s t

Love2Live Oy, Ratsumiehenkatu 1 B, 05830 Hyvinkää, Finland (applicant).

On 07/02/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 078 303 is partially upheld, namely for the following contested goods and services:

Class 14: All the goods applied for in this class.

Class 25: All the goods applied for in this class.

Class 35: All the services applied for in this class with the exception of import and export services.

2. European Union trade mark application No 18 008 302 is rejected for all the above goods and services. It may proceed for the remaining services.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 18 008 302 ‘LOVA LIFESTYLE’. The opposition is based on international trade mark registration No 1 167 157 designating the European Union ‘LOWA’ in relation to which the opponent invoked Article 8(1)(b) EUTMR. The opponent also invoked Article 8(4) EUTMR, in relation to the company name used in the course of trade in Germany ‘LOWA Sportschuhe GmbH’.

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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s international trade mark registration No 1 167 157 designating the European Union.

a)  The goods and services

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

Class 3: Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices; aromatics [essential oils]; flavorings [flavourings] for beverages [essential oils]; breath freshening strips; breath freshening sprays; essential oils; essential oils of cedarwood; polish for furniture and flooring; parquet floor wax; deodorants for human beings or for animals; disinfectant soap; deodorant soap; diamantine [abrasive]; scented wood; sachets for perfuming linen; scented water; cosmetic dyes; greases for cosmetic purposes; cosmetic creams; cosmetic preparations for skin care; jasmine oil; lacquer-removing preparations; leather bleaching preparations; creams for leather; leather preservatives [polishes]; make-up; almond milk for cosmetic purposes; almond oil; almond soap; medicated soap; cloths impregnated with a detergent for cleaning; preparations for unblocking drain pipes; preparations to make shiny the leaves of plants; mouth washes, not for medical purposes; oils for toilet purposes; polishing creams; polishing preparations; polishing stones; polishing wax; dry-cleaning preparations; furbishing preparations; fumigation preparations [perfumes]; joss sticks; windscreen cleaning liquids; cleansing milk for toilet purposes; cleaning preparations; rust removing preparations; grinding preparations; abrasive paper; emery; shoe cream; shoe wax; cobblers' wax; shoemakers' wax; shampoos; turpentine, for degreasing; oil of turpentine for degreasing; toiletries; cakes of toilet soap; toilet water; drying agents for dishwashing machines; tissues impregnated with cosmetic lotions; petroleum jelly for cosmetic purposes; volcanic ash for cleaning.

Class 9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; compact discs, DVDs and other digital recording media; computers; computer software; drainers for use in photography; aerometers; accumulators, electric; alarms; sound alarms; electric alarm bells; testing apparatus not for medical purposes; asbestos gloves for protection against accidents; barometers; gasoline gauges; observation instruments; phototelegraphy apparatus; video telephones; flashing lights [luminous signals]; lightning conductors [rods]; spectacles [optics]; spectacle cases; spectacle frames; spectacle glasses; chronographs [time recording apparatus]; encoded identification bracelets, magnetic; encoded service cards and identity cards; compact discs [read-only memory]; compact discs [audio-video]; computer programmes [programs], recorded; computer operating programs, recorded; computer screens; computer peripheral devices; computer programs [downloadable software]; computer keyboards; crash test dummies; detectors; transparencies [photography]; slide projectors; theft prevention installations, electric; anti-theft warning apparatus; pressure measuring apparatus; electrically heated socks; electric igniting apparatus for igniting at a distance; electric locks; transformers [electricity]; electronic notice boards; electronic pens [visual display units]; electronic agendas; range finders; distance measuring apparatus; ergometers; thread counters; binoculars; telescopes; telerupters; fire boats; fire blankets; fire alarms; clothing for protection against fire; garments for protection against fire; exposed films; cinematographic cameras; film cutting apparatus; spark-guards; masts for wireless aerials; radiotelephony sets; radiotelegraphy sets; speed indicators; speed checking apparatus for vehicles; speed measuring apparatus [photography]; speed regulators for record players; altimeters; hydrometers; hygrometers; magnetic identity cards; interfaces for computers; integrated circuit cards [smart cards]; comparators; directional compasses; contact lenses; containers for contact lenses; electric regulating apparatus; headphones; luminous signs; magnifying glasses [optics]; pressure gauges; megaphones; measuring instruments; plane tables [surveying instruments]; meteorological instruments; monitors [computer hardware]; monitors [computer programs]; nose clips for divers and swimmers; nautical apparatus and instruments; navigation apparatus for vehicles [on-board computers]; navigational instruments; tilt meters; eyepieces; optical goods; optical apparatus and instruments; optical lanterns; optical lenses; optical discs; optical glass; precision balances; life buoys; life-saving rafts; fire escapes; safety nets; safety tarpaulins; life belts; life jackets; gloves for protection against X-rays for industrial purposes; protective helmets; protective masks; protection devices against X-rays, not for medical purposes; transmitters of electronic signals; transmitting sets [telecommunication]; transmitters [telecommunication]; signalling buoys; signal bells; signal lanterns; signalling whistles; signalling panels, luminous or mechanical; sirens; sonars; goggles for sports; tachometers; metronomes; cell phone pockets or bags; electronic pocket translators; teaching apparatus; audiovisual teaching apparatus; USB flash drives; surveying apparatus and instruments; surveying chains; wavemeters; anemometers; wind socks for indicating wind direction; carpenters' rules; automatic time switches; cell switches [electricity]; compasses [measuring instruments]; headguards for sports.

Class 14: Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and chronometric instruments; amulets [jewellery, jewelry (Am.)]; pins [jewellery, jewelry (Am.)]; bracelets [jewellery, jewelry (Am.)]; wristwatches; atomic clocks; brooches [jewellery, jewelry (Am.)]; busts of precious metal; chronographs [watches]; chronometers; chronoscopes; electric clocks and watches; ivory [jewellery, jewelry (Am.)]; barrels [clock and watch making]; figurines [statuettes] of precious metal; necklaces [jewellery, jewelry (Am.)]; hat ornaments of precious metal; boxes of precious metal; chains [jewellery, jewelry (Am.)]; tie clips; tie pins; works of art of precious metal; cuff links; medals; medallions [jewellery, jewelry (Am.)]; earrings; pearls [jewellery, jewelry (Am.)]; beads for making jewelry; rings [jewellery, jewelry (Am.)]; key rings [trinkets or fobs]; jewellery cases [caskets]; ornamental pins; shoe ornaments of precious metal; stopwatches; watches; pendulum clocks; watch bands; watch winders; cases for clock- and watchmaking; clock cases; watch cases; pendulums [clock and watch making]; cases for watches [presentation]; watch springs; watch glasses; watch chains; charms [jewellery, jewelry (Am.)]; movements for clocks and watches; clock hands [clock and watch making]; alarm clocks; clockworks; control clocks [master clocks]; dials [clock and watch making].

Class 18: Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas and parasols; walking sticks; whips, harness and saddlery; briefcases; baby carriers; beach bags; covers for animals; mountaineering sticks; harness fittings; pocket wallets; bags for campers; attaché cases; boxes of leather or leather board; net bags for shopping; shopping bags; casings, of leather, for springs; sleeves, of leather, for springs; coverings of skins [furs]; umbrella or parasol ribs; nose bags [feed bags]; purses; collars for animals; suitcase handles; handbags; handbag frames; waist pouches; dog leads; hat boxes of leather; game bags [hunting accessories]; card cases [notecases]; cases, of leather or leatherboard; chain mesh purses; sling bags for carrying infants; chin straps, of leather; garment bags for travel; vanity cases, not fitted; wash bags, toilet bags; artificial leather; leather, unworked or semi-worked; leather twist; bands of leather; imitation leather; leather leashes; leatherboard; straps of leather [saddlery]; leather laces; valves of leather; straps for soldiers' equipment; muzzles; trimmings of leather for furniture; music cases; fur; horse blankets; halters; umbrella handles; travelling sets [leatherware]; travelling bags; butts [parts of hides]; rucksacks; bags for climbers; riding saddles; saddle trees; covers for horse-saddles; fastenings for saddles; boxes of leather or leatherboard; umbrella covers; frames for umbrellas or parasols; umbrella sticks; straps for skates; key cases; school satchels; school bags; shoulder belts [straps] of leather; canes; bags for sports; stirrups; walking stick handles; wheeled shopping bags; bags; haversacks; bridoons; pads for horse saddles; envelopes, of leather, for packaging; hiking sticks; tool bags of leather, empty.

Class 20: Furniture, mirrors, picture frames; filing cabinets; mooring buoys, not of metal; tea trolleys; display boards; inflatable furniture; trestles [furniture]; benches [furniture]; cable or pipe clips of plastics; fittings of plastic; reservoirs, not of metal nor of masonry; closures, not of metal, for containers; bed fittings, not of metal; beds for pets; beds [furniture]; bolts, not of metal; library shelves, sideboards; dinner wagons [furniture]; trolleys for computers; containers, not of metal [storage, transport]; cases of wood or plastic; dowels, not of metal; plugs [dowels], not of metal; flagpoles; locks, not of metal, for vehicles; casks, not of metal; taps for casks, not of metal; cask hoops, not of metal; window fittings, not of metal; figurines [statuettes] of wood, wax, plaster or plastic; bottle caps, not of metal; bottle racks; coathooks, not of metal; coatstands; curtain hooks; woven timber blinds [furniture]; plate racks; stag antlers; work benches; stools; wood ribbon; reels of wood for yarn, silk, cord; hat stands; kennels for household pets; identity plates, not of metal; interior textile window blinds; edgings of plastic for furniture; high chairs for babies; infant walkers; cushions; pet cushions; coat hangers; clothes hooks, not of metal; knobs, not of metal; pillows; bolsters; head-rests [furniture]; trays, not of metal; wickerwork; corks; works of art, of wood, wax, plaster or plastic; lecterns; massage tables; mattresses; knife handles, not of metal; furniture of metal; furniture fittings, not of metal; furniture partitions of wood; furniture casters, not of metal; doors for furniture; head-rest cushions; identification bracelets, not of metal, for hospitals; nameplates, not of metal; rivets, not of metal; numberplates, not of metal; room dividers [furniture]; racks [furniture]; shelves for filing-cabinets [furniture]; roller blinds of wood or bamboo; footstools; umbrella stands; reels, not of metal, non-mechanical, for flexible hoses; winding spools, not of metal, non-mechanical, for flexible hoses; locks, other than electric, not of metal; keyboards for hanging keys; costume stands; cupboards; screws, not of metal; nuts, not of metal; lockers; school furniture; covers for clothing [wardrobe]; wardrobe lockers; ladders of wood or plastics; spring mattresses; flower-pot pedestals; poles, not of metal; standing desks; wicker beach chairs; straw plaits; straw mattresses; seats; containers, not of metal, for liquid fuel; tables; tables of metal; shoulder poles [yokes]; transport pallets, not of metal; door fittings, not of metal; packaging containers of plastic; stoppers, not of metal; showcases [furniture]; wax figures; inflatable publicity objects; workbenches; tool handles, not of metal; baby changing mats; cots; magazine racks; newspaper display stands; digital picture frames.

Class 25: Clothing, footwear, headgear; heels; heelpieces for footwear; suits; layettes [clothing]; bathing suits; bathing trunks; bath robes; bathing caps; bath slippers; berets; leggings [leg warmers]; clothing of imitations of leather; motorists' clothing; paper clothing; teddies [undergarments]; shower caps; inner soles; masquerade costumes; mittens; fishing vests; football shoes; footmuffs, not electrically heated; galoshes; spats; money belts [clothing]; clothing for gymnastics; gymnastic shoes; half-boots; scarves; gloves [clothing]; indoor footwear; shirt yokes; shirts; wooden shoes; trousers; trouser straps; suspenders; girdles; hats; jackets [clothing]; jerseys [clothing]; stuff jackets [clothing]; bodices [lingerie]; skull caps; hoods [clothing]; smocks; ready-made linings [parts of clothing]; pockets for clothing; ready-made clothing; collars [clothing]; detachable collars; shirts for patients; gowns for patients; neckties; ascots; short-sleeve shirts; bibs, not of paper; clothing of leather; underwear; anti-sweat underclothing; cuffs; coats; pelisses; dressing gowns; caps [headwear]; outerclothing; combinations [clothing]; slippers; parkas; ponchos; pullovers; pyjamas; cyclists' clothing; welts for footwear; waterproof clothing; sandals; sashes for wear; sleep masks; lace boots; fittings of metal for footwear; shoes; soles for footwear; footwear uppers; tips for footwear; dress shields; ski gloves; ski boots; skorts; underpants; socks; sock suspenders; boots for sports; sports shoes; boots; boot uppers; headbands [clothing]; esparto shoes or sandals; shawls; fur stoles; studs for football boots; beach clothes; beach shoes; garters; stockings; sweat-absorbent stockings; heelpieces for stockings; stocking suspenders; tights; sweaters; tee-shirts; togas; jumper dresses; knitwear [clothing]; singlets; turbans; overcoats; uniforms; underclothing [underwear]; sweat-absorbent underclothing [underwear]; pants; leggings; wet suits for water-skiing; waistcoats.

Class 28: Games and playthings; gymnastic and sporting articles not included in other classes; decorations for Christmas trees; fishing tackle; fishing tackle boxes; fish hooks; reels for fishing; rods for fishing; gut for fishing; baseball gloves; building games; building blocks [toys]; chalk for billiard cues; billiard balls; billiard tables; coin-operated billiard tables; bingo cards; body boards; body-building apparatus; bows for archery; archery implements; boxing gloves; board games; boomerangs; Christmas tree stands; draughtboards; gut for rackets; discuses for sports; kites; scent lures for hunting or fishing; skating boots with skates attached; electronic targets; elbow guards [sports articles]; chest expanders [exercisers]; stationary exercise bicycles, scale model vehicles; fencing gauntlets; fencing masks; fencing weapons; shuttlecocks; radio-controlled toy vehicles; amusement machines, automatic and coin-operated; gaming machines for gambling; machines for physical exercises; apparatus games; apparatus for games; parlour games; weight lifting belts [sports articles]; paragliders; golf gloves; golf clubs; golf bags, with or without wheels; appliances for gymnastics; gloves for games; hang gliders; dumb-bells; harpoon guns [sport articles]; hockey sticks; horseshoe games; in-line roller skates; playing cards; skittles [games]; climbers' harness; knee guards [sports articles]; cricket bags; hunting game calls; play balloons; bladders of balls for games; paper streamers; mobiles [toys]; scale model kits [toys]; nets for sports; Nordic walking poles; toy pistols; stuffed toys; quoits; dolls; jigsaw puzzles; surfboard leashes; ring games; slides [playthings]; rollers for stationary exercise bicycles; scooters [toys]; roller skates; slides; strings for rackets; swings; rocking horses; practical jokes [novelties]; shin guards [sports articles]; targets; batting gloves [accessories for games]; sleighs [sports articles]; ice skates; butterfly nets; artificial snow for Christmas trees; snowshoes; protective paddings [parts of sports suits]; swimming pools [play articles]; floats for fishing; flippers for swimming; swimming jackets; skateboards; ski bindings; edges of skis; scrapers for skis; ski poles; wax for skis; snowboards; bags especially designed for skis and surfboards; balls for games; playing balls; dice; toy vehicles; rackets; sailboards; surf boards; twirling batons; camouflage screens [sports articles]; tennis ball throwing apparatus; tennis nets; men's athletic supporters [sports articles]; tables for table tennis; clay pigeon traps; trampolines; spring boards [sports articles]; harness for sailboards; scooters; video game machines; arcade video game machines; waterskis; dice cups; darts; flying discs [toys]; percussion caps [toys].

The contested goods and services are the following:

Class 14: Gemstones, pearls and precious metals, and imitations thereof; jewellery; jewellery boxes and watch boxes; key rings; key rings and key chains, and charms therefor; ornaments, made of or coated with precious or semi-precious metals or stones, or imitations thereof; statues and figurines, made of or coated with precious or semi-precious metals or stones, or imitations thereof; time instruments.

Class 25: Athletic uniforms; sport coats; sports singlets; sports pants; sports jackets; jumper suits; gym shorts; sportswear; sports caps; clothing; shoes; hats.

Class 35: Retail services in relation to gemstones, pearls and precious metals, and imitations thereof; wholesale services in relation to gemstones, pearls and precious metals, and imitations thereof; online retail services in relation to gemstones, pearls and precious metals, and imitations thereof; retail services in relation to jewellery; wholesale services in relation to jewellery; online retail services in relation to jewellery; retail services in relation to jewellery boxes and watch boxes; wholesale services in relation to jewellery boxes and watch boxes; online retail services in relation to jewellery boxes and watch boxes; retail services in relation to key rings; wholesale services in relation to key rings; online retail services in relation to key rings; retail services in relation to key rings and key chains, and charms therefor; wholesale services in relation to key rings and key chains, and charms therefor; online retail services in relation to key rings and key chains, and charms therefor; retail services in relation to ornaments, made of or coated with precious or semi-precious metals or stones, or imitations thereof; wholesale services in relation to ornaments, made of or coated with precious or semi-precious metals or stones, or imitations thereof; online retail services in relation to ornaments, made of or coated with precious or semi-precious metals or stones, or imitations thereof; retail services in relation to statues and figurines, made of or coated with precious or semi-precious metals or stones, or imitations thereof; wholesale services in relation to statues and figurines, made of or coated with precious or semi-precious metals or stones, or imitations thereof; online retail services in relation to statues and figurines, made of or coated with precious or semi-precious metals or stones, or imitations thereof; retail services in relation to time instruments; wholesale services in relation to time instruments; online retail services in relation to time instruments; retail services in relation to athletic uniforms; wholesale services in relation to athletic uniforms; online retail services in relation to athletic uniforms; retail services in relation to sport coats; wholesale services in relation to sport coats; online retail services in relation to sport coats; retail services in relation to sports singlets; wholesale services in relation to sports singlets; online retail services in relation to sports singlets; retail services in relation to sports pants; wholesale services in relation to sports pants; online retail services in relation to sports pants; retail services in relation to sports jackets; wholesale services in relation to sports jackets; online retail services in relation to sports jackets; retail services in relation to jumper suits; wholesale services in relation to jumper suits; online retail services in relation to jumper suits; retail services in relation to gym shorts; wholesale services in relation to gym shorts; online retail services in relation to gym shorts; retail services in relation to sportswear; wholesale services in relation to sportswear; online retail services in relation to sportswear; retail services in relation to sports caps; wholesale services in relation to sports caps; online retail services in relation to sports caps; retail services in relation to clothing; wholesale services in relation to clothing; online retail services in relation to clothing; retail services in relation to shoes; wholesale services in relation to shoes; online retail services in relation to shoes; retail services in relation to hats; wholesale services in relation to hats; online retail services in relation to hats; import and export services.

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.

Contested goods in Class 14

The contested jewellery; ornaments, made of or coated with precious or semi-precious metals or stones, or imitations thereof are identical to the opponent’s jewellery either because they are identically contained in both lists or because the opponent’s goods include the contested ones.

The contested jewellery boxes and watch boxes are synonyms of the opponent’s jewellery cases [caskets] and watch cases. Therefore, they are identical.

The contested time instruments include, as a broader category, the opponent’s watches. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested gemstones, pearls and imitations thereof are at least similar to a high degree with the opponent’s precious stones as they have the same purpose. They usually coincide in relevant public, distribution channels and method of use. Furthermore they are in competition.

The contested precious metals, and imitations thereof are at least similar to a high degree with the opponent’s precious metals and their alloys as they have the same purpose and nature. They usually coincide in relevant public and distribution channels. Furthermore they are in competition.

The contested statues and figurines, made of or coated with precious or semi-precious metals or stones, or imitations thereof are at least similar with the opponent’s figurines [statuettes] of precious metal as they share, at least, the relevant public, distribution channels and method of use.

The contested key rings; key rings and key chains, and charms therefor are at least similar to a low degree with the opponent’s key rings [trinkets or fobs] since they share, at least, the same producer, relevant public and distribution channels.

Contested goods in Class 25

The contested goods in this class comprise clothing, several clothing for sports, shoes and caps. Consequently, they are identical to the opponent’s clothing, footwear, headgear either because they are identically contained in both lists or because the opponent’s goods, as broader categories, include the contested goods.

Contested services in Class 35

The contested import and export services are very specific services which relate to the movement of goods and normally require the involvement of customs authorities in both the country of import and the country of export. These services are often subject to import quotas, tariffs and trade agreements. It follows that the subject services do not have anything in common with any of the opponent’s goods. In particular, they have clearly different purposes, methods of use, distribution channels, relevant publics and provider. In addition, they are not complementary or in competition. Therefore, they are dissimilar.

Retail services concerning the sale of specific goods are similar to an average degree to these specific goods (20/03/2018, T-390/16, DONTORO dog friendship (fig.)/TORO et al., EU:T:2018:156, § 33; 07/10/2015, T-365/14, TRECOLORE / FRECCE TRICOLORI et al., EU:T:2015:763, § 34). Although the nature, purpose and method of use of these goods and services are not the same, it should be noted that they display similarities, having regard to the fact that they are complementary and that the services are generally offered in the same places as those where the goods are offered for sale. Furthermore, they are directed at the same public.

Moreover, there is a low degree of similarity between the retail services concerning specific goods and other specific similar or highly similar goods, because of the close connection between them on the market from the perspective of the consumer. Consumers are accustomed to the practice that a variety of similar or highly similar goods are brought together and offered for sale in the same specialised shops or in the same sections of department stores or supermarkets. Furthermore, they are of interest to the same consumer.

A low degree of similarity between the retailed goods on the one hand, and on the other hand, the goods of the other sign under comparison may also be sufficient to lead to a finding of a low degree of similarity to the retail services provided that the goods involved are commonly offered for sale in the same specialised shops or in the same sections of department stores or supermarkets, belong to the same market sector and, therefore, are of interest to the same consumer. However, such goods and retail services are dissimilar, when the goods at issue are not offered in the same places, do not belong to the same market sector and target a different consumer.

In the present case, the rest of the contested services in Class 35 comprise a wide range of retail and wholesale services concerning all the specific contested goods in Classes 14 and 25 that have been compared above, and considered similar in varying degrees to the opponent’s goods.

Consequently, and taking into account the above principles, the rest of the contested services in Class 35 are at least similar to a low degree with the respective opponent’s goods in Classes 14 and 25 namely jewellery; jewellery cases [caskets] and watch cases; watches; figurines [statuettes] of precious metal; precious stones; precious metals and their alloys; key rings [trinkets or fobs]; clothing; footwear and headgear.

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 and services found to be identical or similar in various degrees are directed at the public at large as well as business customers with specific professional knowledge or expertise.

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.

c) The signs

LOWA	LOVA LIFESTYLE
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). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The contested sign’s element ‘LIFESTYLE’ is meaningful in certain territories, for example in those countries where English is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public that will perceive it with the meaning of ‘attitudes regarded as fashionable or desirable’. Therefore, the degree of distinctiveness of this element is rather low in relation to all the relevant goods and services since it alludes to the fashionable style of the relevant goods and of those subject of trade.

The signs’ verbal elements ‘LOWA’ and ‘LOVA’ do not convey any clear meaning and are, therefore, distinctive.

Visually and aurally, the signs coincide in the letters (and sound) ‘LO*A’. Although they differ in their third letters (and sound) ‘W’ and ‘V’, it cannot be neglected that a certain visual and aural similarity exist between these letters. Finally, the signs differ in the contested application’s element ‘LIFESTYLE’.

Therefore, and taking into account the above assessment on the degree of distinctiveness of the signs’ elements, these are visually and aurally similar to an above average degree.

Conceptually, although the public in the relevant territory will perceive the meaning of the contested sign’s element ‘LIFESTYLE’ as explained above, the other 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, although the conceptual difference resulting from this term will have limited importance.

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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

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 appreciation of likelihood of confusion on the part of the public depends, inter alia, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified. It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).

For the purposes of that global appreciation, the average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. However, likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

In the present case the goods and services have been found partly identical, partly similar in various degrees and partly dissimilar. They target both the general and the professional public. The degree of attention may vary from average to high.

The signs have been found visually and aurally similar to an above average degree since they share the sequence of letters ‘LO*A’. The signs are not conceptually similar, however, this factor has a limited role in the assessment of likelihood of confusion since said difference derives from an element with a limited degree of distinctiveness.

Taking all the above into account, the Opposition Division considers that the differences between the signs are clearly not sufficient to outweigh the assessed similarities between them. Consequently, the relevant public, when encountering the signs in relation to identical or at least similar goods and services are likely to think that they come from the same undertaking or from economically linked undertakings, despite the high degree of attention paid in relation to some of them.

As regards the goods and services that are similar to a low degree only, it must be kept in mind that 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 degree of similarity between the signs is clearly sufficient to offset the low degree of similarity between some of the goods and services, despite the high degree of attention paid in relation to some of them.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the English-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s international trade mark registration No 1 167 157 designating the European Union. 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 and services found to be identical or similar in various degrees to those of the earlier trade mark.

The rest of the contested services 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 services cannot be successful.

Since the opposition is partially successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its extensive use as claimed by the opponent and in relation to identical and similar goods and services. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

Likewise, there is no need to assess the claimed enhanced degree of distinctiveness of the opposing mark in relation to dissimilar services, as the similarity of goods and services is a sine qua non for there to be likelihood of confusion. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

The Opposition Division will proceed in the assessment of the other ground invoked by the Opponent, namely Article 8(4) EUTMR.

NON‑REGISTERED MARK OR ANOTHER SIGN USED IN THE COURSE OF TRADE — ARTICLE 8(4) EUTMR

According to Article 8(4) EUTMR, upon opposition by the proprietor of a non‑registered trade mark or of another sign used in the course of trade of more than mere local significance, the trade mark applied for will not be registered where and to the extent that, pursuant to the Union legislation or the law of the Member State governing that sign:

(a) rights to that sign were acquired prior to the date of application for registration of the European Union trade mark, or the date of the priority claimed for the application for registration of the European Union trade mark;

(b) that sign confers on its proprietor the right to prohibit the use of a subsequent trade mark.

Therefore, the grounds of refusal of Article 8(4) EUTMR are subject to the following requirements:

• the earlier sign must have been used in the course of trade of more than local significance prior to the filing of the contested trade mark;

• pursuant to the law governing it, prior to the filing of the contested trade mark, the opponent acquired rights to the sign on which the opposition is based, including the right to prohibit the use of a subsequent trade mark;

• the conditions under which the use of a subsequent trade mark may be prohibited are fulfilled in respect of the contested trade mark.

These conditions are cumulative. Therefore, where a sign does not satisfy one of those conditions, the opposition based on a non‑registered trade mark or other signs used in the course of trade within the meaning of Article 8(4) EUTMR cannot succeed.

1. The right under the applicable law

According to Article 95(1) EUTMR, the Office will examine the facts of its own motion in proceedings before it; however, in proceedings relating to relative grounds for refusal of registration, the Office will restrict this examination to the facts, evidence and arguments submitted by the parties and the relief sought.

According to Article 7(2)(d) EUTMDR, if the opposition is based on an earlier right within the meaning of Article 8(4) EUTMR, the opposing party must provide, inter alia, evidence of its acquisition, continued existence and scope of protection, including where the earlier right is invoked pursuant to the law of a Member State, a clear identification of the content of the national law relied upon by adducing publications of the relevant provisions or jurisprudence.

Therefore, the onus is on the opponent to submit all the information necessary for the decision, including identifying the applicable law and providing all the necessary information for its sound application. According to case-law, it is up to the opponent ‘… to provide OHIM not only with particulars showing that he satisfies the necessary conditions, in accordance with the national law of which he is seeking application … but also particulars establishing the content of that law’ (05/07/2011, C‑263/09 P, Elio Fiorucci, EU:C:2011:452, § 50).

The information on the applicable law must allow the Office to understand and apply the content of that law, the conditions for obtaining protection and the scope of this protection, and allow the applicant to exercise the right of defence.

As regards the provisions of the applicable law, the opponent must provide a clear identification of the content of the national law relied upon by adducing publications of the relevant provisions or jurisprudence (Article 7(2)(d) EUTMDR). The opponent must provide the reference to the relevant legal provision (Article number and the number and title of the law) and the content (text) of the legal provision by adducing publications of the relevant provisions or jurisprudence (e.g. excerpts from an official journal, a legal commentary, legal encyclopaedias or court decisions). If the relevant provision refers to a further provision of law, this must also be provided to enable the applicant and the Office to understand the full meaning of the provision invoked and to determine the possible relevance of this further provision. Where the evidence concerning the content of the relevant national law is accessible online from a source recognised by the Office, the opponent may provide such evidence by making a reference to that source (Article 7(3) EUTMDR).

According to Article 7(4) EUTMDR, any provisions of the applicable national law governing the acquisition of rights and their scope of protection as referred to in Article 7(2)(d) EUTMDR, including evidence accessible online as referred to in Article 7(3) EUTMDR must be in the language of the proceedings or accompanied by a translation into that language. The translation must be submitted by the opposing party of its own motion within the time limit specified for submitting the original document.

As the opponent is required to prove the content of the applicable law, it must provide the applicable law in the original language. If that language is not the language of the proceedings, the opponent must also provide a complete translation of the legal provisions invoked in accordance with the standard rules of substantiation (Article 7(4) EUTMDR, first sentence). However, a mere translation of the applicable law does not itself constitute proof and cannot substitute the original; therefore, the translation alone is not considered sufficient to prove the law invoked. Article 7(4) EUTMDR requires any provisions of the applicable national law governing the acquisition of the rights and their scope of protection, including evidence accessible online to be submitted in the language of the proceedings or accompanied by a translation into that language, which must be submitted within the time limit specified for submitting the original document. The same rules apply where the opponent provides the content of the relevant national law by making reference to a relevant online source recognised by the Office.

Furthermore, the opponent must submit appropriate evidence of fulfilment of the conditions of acquisition and of the scope of protection of the right invoked, as well as evidence that the conditions of protection vis-à-vis the contested mark have actually been met. In particular, it must put forward a cogent line of argument as to why use of the contested mark would be successfully prevented under the applicable law.

In the present case, the opponent did not submit the applicable law in the original language i.e. German, but only a mere translation of sections 5 (1), (2), and 15 (2), (3), (4) of the 'German Trade Mark Act'. It follows that the opponent did not provide sufficient information on the legal protection granted to the type of trade sign invoked, namely the company name ‘LOWA Sportschuhe GmbH’ used in the course of trade in Germany.

Therefore, and taking into account the principles outlined above, the opposition is not well founded under Article 8(4) EUTMR.

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 and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Sandra IBAÑEZ

Aldo BLASI

Tu Nhi VAN

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.