OPPOSITION No B 3 081 342

ELON Group AB, Box 220 94, 702 03, Örebro, Sweden (opponent), represented by Advokatfirman Lindahl Kb, Studentgatan 6, 211 38 Malmö, Sweden (professional representative)

a g a i n s t

Mountfield a.s., Mirošovická 697, 251 64 Mnichovice, Czech Republic (applicant), represented by Jana Vandelikova Petrska, 1136/12, 110 00 Praha 1, Czech Republic (professional representative).

On 24/08/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 081 342 is upheld for all the contested goods.

2. European Union trade mark application No 18 008 714 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 18 008 714 for the word mark ‘LEVITA’. The opposition is based on, inter alia, Swedish trade mark registration No 549 943 for the word mark ‘ELVITA’. 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.

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 Swedish trade mark registration No 549 943 for the word mark ‘ELVITA’.

1. The goods and services

The goods on which the opposition is based are, inter alia, the following:

Class 11: Air-conditioning installations and appliances; parts, components and accessories for the aforementioned goods.

The contested goods are the following:

Class 11: Portable air conditioners; air-conditioning apparatus; filters for air conditioning.

The contested portable air conditioners; air-conditioning apparatus are included in the broad category of the opponent’s air-conditioning installations and appliances. Therefore, they are identical.

The contested filters for air conditioning are parts for air-conditioning appliances. The expression parts, components and accessories for the aforementioned goods means parts, components and accessories for the air-conditioning installations and appliances as the last are ‘the aforementioned goods’. Therefore, filters for air conditioning are included in the broad category of the opponent’s parts, components and accessories for the air-conditioning installations and appliances and are therefore identical.

2. 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 are directed at the public at large. The degree of attention may vary from average to high, depending on the specialised nature of the goods, and their price. Considering the price and sophisticate nature of portable air conditioners; air-conditioning apparatus the degree of attention of the public will be above-average. However, for the remaining goods, which are parts for the abovementioned apparatus, the relevant public’s degree of attention is average, as they are relatively cheap products and can be easily replaced.

3. Distinctiveness of the earlier mark and the comparison of signs

ELVITA	LEVITA
Earlier trade mark	Contested sign

The relevant territory is Sweden.

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).

Both signs are single-word marks and they will be perceived by the public as fanciful words without any particular meaning. Since the earlier mark is only one word and the opponent did not claim enhanced distinctiveness due to intensive use or reputation, the inherent distinctiveness of the earlier mark, on the whole, is average.

Visually and aurally, the signs coincide in that they are word signs composed of the same six letters. Four out of these six letters, namely ‘VITA’, are in the same order. Therefore, the only difference results from the inversion of the letters ‘E’ and ‘L’.

The signs are visually and aurally similar to at least an average degree.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. 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.

4. Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, 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 (recital 11 of the EUTMR). 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).

The relevant goods are identical, and they target the public at large, whose degree of attention is average or higher-than-average depending on the goods. The earlier mark has a normal degree of distinctiveness. The signs are visually and aurally similar to at least an average degree and the conceptual comparison is not possible.

Both signs share the sequence of letters ‘VITA’ and the letters ‘E’ and ‘L’, albeit these two letters are in a different order. 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). Therefore, it is likely that the relevant consumer can easily and imperfectly recollect ‘ELVITA’ as ‘LEVITA’, particularly as there is no conceptual meaning in any of the words.

Although consumers generally pay greater attention to the beginning of a word sign than to the end (25/03/2009, T‑109/07, Spa Therapy, EU:T:2009:81, § 30), this general rule does not prevail in all cases and cannot, in any event, undermine the principle that an examination of the similarity of the marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a mark as a whole and does not examine its individual details (27/06/2012, T‑344/09, Cosmobelleza, EU:T:2013:40, § 52; 15/07/2015, R 3080/2014‑2, KOPPARBRIGHT / ParBright, § 54). In particular, the difference in the verbal elements of the signs, deriving from the reversed order of only two letters, is not enough to counteract the similarity between them.

Furthermore, when the goods covered by the signs at issue are identical, the differences between the signs should be significant and relevant to a degree that will allow consumers to safely distinguish the signs and to exclude the likelihood of confusion between them.

In its observations, the applicant argues that it owns European Union trade mark registration No 14 204 697 ‘LEVITA’ applied for on 03/06/2015 and it is registered for a wide range of products in Class 7. However, the goods for which the trade mark No 14 204 697 is registered are different from the goods under consideration in this case and therefore, the existence of the trade mark No 14 204 697 ‘LEVITA’ does not influence the present decision. Moreover, it is the producer’s decision and market strategy that determines which of its own signs and goods/services to protect through Opposition proceedings.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public. Therefore, the opposition is well founded on the basis of the opponent’s Swedish trade mark registration No 549 943. It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier mark No 549 943 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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 (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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

Julia GARCÍA MURILLO

Maria Slavova

Michele M. BENEDETTI ALOISI

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.