OPPOSITION No B 3 080 939

Société Louis Delhaize Financière et de Participation, en abrégé DELFIPAR, société anonyme, rue de l'Espérance, 84, 6061 Montignies sur Sambre, Belgium (opponent), represented by Inlex IP Expertise, Plaza San Cristobal, 14, 03002 Alicante, Spain (professional representative)

a g a i n s t

3 B S.p.A., Via delle Industrie N. 1, 31040 Salgareda (Treviso), Italy (applicant), represented by Jaccobacci & Partners S.p.A., Piazza Mario Saggin, 2, 35131 Padova, Italy (professional representative).

On 04/08/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 080 939 is upheld for all the contested goods.

2. European Union trade mark application No 18 011 122 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 18 011 122 ‘CORA’ (word mark). The opposition is based on Benelux trade mark registration No 985 069 ‘CORA’ (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.

1. The goods and services

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

Class 35: Retail services or wholesale of non-metallic building materials, cement, plaster, plaster, construction wood, veneer, bricks, glass, non-metallic rigid pipes for construction, coatings (construction), non-metallic tiles, nonmetallic chimneys, non-metallic windows and doors, non-metallic and non-metallic blinds, swimming pools, non-metallic water pipes, non-metallic transportable constructions, aquariums (constructions), furniture, displays, mirrors, frames (except construction), works of art made of wood, wax, plaster, cork, reed, rush, wicker, horn, bone, ivory, whale, tortoiseshell, amber, mother-of-pearl, sea foam, substitutes for all these materials or of non-metallic plastics, baskets and baskets, plastic packaging containers, wooden or plastic boxes, indoor pet niches and bunks, cat claw trees, bulletin boards, workbenches, embroidery machines, nonmetallic license plates, wooden or plastic signs non-metallic and non-illuminated house numbers, non-metallic and non-electrical locks, hinges, non-metallic dowels, playpens, cradles, baby walkers, non-metallic gratings, sleeping equipment except linen, camping sleeping bags, cushions, pillows, bolsters, box springs, mattresses.

The contested goods are the following (after limitation):

Class 19: Door frames, not of metal; balusters (non-metallic -); advertisement columns, not of metal; cornices, not of metal; buildings, transportable, not of metal; buildings, not of metal; windows, not of metal; wood veneers; paving slabs, not of metal; slabs, not of metal, for building; veneer wood; wood, semi-worked; wood paving; door panels, not of metal; building panels, not of metal; gates, not of metal; doors, not of metal; planks of wood for building; window frames, not of metal; partitions, not of metal; casement windows, not of metal; building glass; stained-glass windows; folding doors, not of metal; wainscotting, not of metal; cladding panels (non-metallic -); sliding doors, not of metal.

Class 20: Bed fittings, not of metal; furniture fittings, not of metal; door fittings, not of metal; plate racks; cupboards; fittings (non-metallic -) for cupboards; metal cabinets; coatstands; work benches; benches [furniture]; counters [tables]; sideboards; drawers [furniture parts]; chests of drawers; non-metal trestles for supporting tables; bedside cabinets; console tables; picture frames; tea trolleys; meat safes; divans; divan beds; display stands; beds; bookcases; wardrobe interior fitments; bathroom fittings in the nature of furniture; doors made of nonmetallic materials for furniture; doors made of plastic for furniture; furniture handles, not of metal; door handles, not of metal; furniture; school furniture; furniture of metal; outdoor furniture; office furniture; bathroom furniture; furniture partitions of wood; screens [furniture]; table tops; feet for furniture; armchairs; knobs, not of metal; towel stands [furniture]; bottle racks; book stands; doors for furniture; furniture shelves; shelves for storage; library shelves; shelves for file cabinets; furniture casters, not of metal; racks [furniture]; racks being furniture of metal; shelving units; ladders of wood or plastics; step stools, not of metal; shoe racks; writing desks; seats; footstools; sofas; mirrors (silvered glass); brackets, not of metal, for furniture; furniture moldings; bed frames of metal; tables; drafting tables; dining room tables; tables of metal; freestanding partitions [furniture]; movable office partitions; furniture partitions; showcases [furniture]; non-metallic sliding doors for furniture.

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 19

Retail services concerning the sale of specific goods are similar to an average degree to these specific goods. Although the nature, purpose and method of use of these goods and services are not the same, they display similarities, having regard to the fact that they are complementary and that the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

Therefore, the contested windows, not of metal are similar to the opponent’s retail services or wholesale of non-metallic windows since the goods themselves are identical.

The contested door frames, not of metal; door panels, not of metal; doors, not of metal; folding doors, not of metal; sliding doors, not of metal are similar to the opponent’s retail services or wholesale of non-metallic doors since the goods themselves either overlap or are identical.

The contested balusters (non-metallic -); advertisement columns, not of metal; cornices, not of metal; buildings, transportable, not of metal; buildings, not of metal are similar to the opponent’s retail services or wholesale of non-metallic transportable constructions. Indeed, the contested goods are included in the broad category of the opponent's non-metallic transportable constructions.

The contested wood veneers, veneer wood are similar to the opponent’s retail services or wholesale of veneer. Indeed, the contested goods are included in the broader category of the opponent’s goods.

The contested paving slabs, not of metal; slabs, not of metal, for building; wood, semi-worked; wood paving; building panels, not of metal; gates, not of metal; planks of wood for building; window frames, not of metal; partitions, not of metal; casement windows, not of metal; building glass; stained-glass windows; wainscotting, not of metal; cladding panels (non-metallic -) are similar to the opponent’s retail services or wholesale of non-metallic building materials. Indeed, the contested goods are included in the broader category of the opponent’s goods.

Contested goods in Class 20

The contested plate racks; cupboards; metal cabinets; coatstands; work benches; benches [furniture]; counters [tables]; sideboards; drawers [furniture parts]; chests of drawers; bedside cabinets; console tables; picture frames; tea trolleys; meat safes; divans; divan beds; display stands; beds; bookcases; bathroom fittings in the nature of furniture; furniture; school furniture; furniture of metal; outdoor furniture; office furniture; bathroom furniture; screens [furniture]; table tops; armchairs; towel stands [furniture]; bottle racks; book stands; furniture shelves; shelves for storage; library shelves; shelves for file cabinets; racks [furniture]; racks being furniture of metal; shelving units; shoe racks; writing desks; seats; footstools; sofas; mirrors (silvered glass); tables; drafting tables; dining room tables; tables of metal; showcases [furniture] are similar to the opponent’s retail services or wholesale of furniture. Indeed, the contested goods are included in, or overlap with, the broader category of the opponent’s goods.

There is a low degree of similarity between the retail services concerning specific goods and other specific highly similar or 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 highly similar or 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.

Therefore, the contested bed fittings, not of metal; furniture fittings, not of metal; door fittings, not of metal; fittings (non-metallic -) for cupboards; non-metal trestles for supporting tables; wardrobe interior fitments; doors made of nonmetallic materials for furniture; doors made of plastic for furniture; furniture handles, not of metal; door handles, not of metal; furniture partitions of wood; feet for furniture; knobs, not of metal; doors for furniture; furniture casters, not of metal; ladders of wood or plastics; step stools, not of metal; brackets, not of metal, for furniture; furniture moldings; bed frames of metal; freestanding partitions [furniture]; movable office partitions; furniture partitions; non-metallic sliding doors for furniture are at least similar to a low degree to the opponent’s retail services or wholesale of furniture.

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 and services found to be similar to varying degrees are directed at the public at large and at business customers with a specific professional knowledge or expertise.

The degree of attention is considered to be average.

3. The signs

CORA	CORA
Earlier trade mark	Contested sign

The signs are identical.

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).

As concluded above, the signs are identical. The goods and services are similar to varying degrees. Furthermore, the degree of attention of the public at large and business customers is considered to be average.

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). This applies to the present case. Indeed, the fact that the signs are identical outweigh the lesser degree of similarity between some of the goods and services.

Considering all the above, 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 Benelux trade mark registration No 985 069. It follows that the contested trade mark must be rejected for all the contested goods.

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

Marta GARCÍA COLLADO

Raphaël MICHE

Vanessa PAGE

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.