OPPOSITION No B 3 086 258

Groupe Canal+, 1 place du Spectacle, 92130 Issy les Moulineaux, France (opponent), represented by Santarelli, 49, avenue des Champs Elysées, 75008 Paris, France (professional representative)

a g a i n s t

Escape Game Over Ικε, Μ. Αλεξανδρου Αρ. 55, Αργυρουπολη Αττικησ, Greece (applicant), represented by Roxani Kamaka, 26HS Oktobriou 28, 54627 Thessaloniki, Greece (professional representative).

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

DECISION:

1. Opposition No B 3 086 258 is upheld for all the contested services.

2. European Union trade mark application No 18 032 024 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 18 032 024 for the figurative mark . The opposition is based on, inter alia, French trade mark registration No 4 172 259 for the figurative mark in relation to which the opponent only invoked Article 8(1)(b) EUTMR. With respect to the other earlier mark (French trade mark registration No 4 172 259), the opponent invoked both Articles 8(1)(b) and 8(5) 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 French trade mark registration No 4 172 259 for the figurative mark , as this one has the most similar services to the contested sign.

1. The services

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

Class 41: Education; providing of training; entertainment; radio and television entertainment on all kinds of media namely television, computer, personal stereo, portable video player, PDA, mobile telephone, computer networks, the Internet; providing recreation facilities; sporting and cultural activities; animal training; production of shows, films, television films, televized broadcasts, reports, debates, video recordings, phonograph recordings; rental of video recordings, films, phonograph recordings, videotapes; rental of motion pictures; rental of cinematographic projection apparatus, decoders and any audiovisual apparatus and instrument, encoders, radio and television sets, audio and video apparatus, cinematographic cameras, personal stereos, portable video players, show scenery; production of shows, films, audiovisual, radio and multimedia programs; cinema studios; organizing competitions, shows, lotteries, and games for education or entertainment; editing of audiovisual, radio and multimedia programs, texts and/or still or animated images and/or musical or non-musical sounds and/or ringtones for interactive or other use; organizing exhibitions, conferences, seminars for cultural or educational purposes; booking of seats for shows; news reporters services; photographic services, namely taking photographs, creating picture reports; videotaping; consulting on video program production; games services provided on-line (from a communication network), gambling services; providing casino facilities (gambling); editing and publishing of texts (other than publicity texts), multimedia, audio and video media (interactive disks, compact disks, storage disks); publication of electronic books and journals on-line; publication and loan of books and texts (other than publicity texts); providing cinema facilities; electronic desktop publishing.

The contested services are the following:

Class 41: Education, entertainment and sport services; education, entertainment and sports; amusement arcades; sporting and cultural activities; interactive entertainment services.

Education, entertainment and sports services; education, entertainment and sports; sporting and cultural activities are identically contained in both lists of services (including synonyms).

The contested amusement arcades; interactive entertainment services are included in the broad category of, or overlap with, the opponent’s entertainment. Therefore, they are 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 services found to be identical are directed at the public at large.

The degree of attention is considered to vary from average to above average depending on the price, frequency of purchase, (specialised) nature and conditions of the provided services.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is France.

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 is a figurative mark composed of the words ‘LE CUBE’, written in a fairly standard bold upper-case typeface and followed by a letter ‘S’ separated from the first two words and inside a square frame. The contested sign is a figurative mark consisting of a device in the form of a cube with the letters ‘cube’ written inside in a slightly stylised typeface. The letters ‘cu’ appear on top and the letters ‘be’ underneath. At the bottom part of the mark the slogan ‘ULTIMATE CHALLENGE’ is written in a much smaller, fairly standard, upper-case typeface.

The verbal element ‘CUBE’/’cube’ present in both signs is a French word, reinforced by the figurative element in the contested sign, which means: ‘Parallélépipède rectangle dont les 6 faces sont isométriques, ainsi que les 12 arêtes.’ (information extracted from Larousse French Dictionary on 25/05/2020 at https://www.larousse.fr/dicttionnaires/francais/cube), translated in English as ‘a solid object with six square surfaces which are all the same size’ (information extracted from Collins English Dictionary on 25/05/2020, at https://www.collinsdictionary.com/dictionary/english/cube). Even though these words have a meaning, they have no particular relation to the relevant services and are, therefore, distinctive. The verbal element ‘LE’ of the earlier mark is the French definite article for the singular form and will be perceived by the relevant consumer as fulfilling the purpose of introducing the following verbal element ‘CUBE’, and not as an indicator of origin. Therefore, this element has a very limited degree of distinctiveness. Furthermore, the square frame of the earlier mark is more of a decorative nature and the public will not pay as much attention to this weak element, which, therefore, has less impact on the overall impression. The last letter ‘S’, at the end of the earlier mark inside of the square frame refers to this letter in the alphabet and has no particular meaning for the relevant services. In addition, the earlier mark has no element more dominant than others.

The slogan ‘ULTIMATE CHALLENGE’ of the contested sign is a laudatory expression in English and will be perceived by the part of the public that has a knowledge of English as referring to a characteristic of the services, namely that the services provide the biggest or most difficult challenge. It will merely be seen as a motto or promotional statement and is non-distinctive. Therefore, it has much less impact on the overall impression. For the part of the public that will not understand these words, they are normally distinctive, but are very small and so might be overlooked. The most distinctive word of the contested sign is ‘cube’, at least for a part of the public. The latter, together with the device reinforcing the word, is also considered more dominant (visually eye-catching) than the slogan, due to its very small size.

Visually, the signs are similar to the extent that they coincide in the letters ‘CUBE’/’cube’, with the only difference being the typeface. However, these typefaces, being fairly standard, will not divert the consumer’s attention from the elements they embellish. Even though the word ‘CUBE’ in the contested sign is placed on two different horizontal lines, it will be seen by consumers as being the word ‘CUBE’.

The marks differ in the first word ‘LE’, the last letter ‘S’ and the square frame of the earlier mark and the cube device and the slogan ‘ULTIMATE CHALLENGE’ of the contested sign.

Furthermore, 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 or from top to bottom, which makes the part placed at the left or on top of the sign (the initial part) the one that first catches the attention of the reader. In the present case, the last letter ‘S’ of the earlier mark falls at the end of the mark, where consumers pay less attention.

When signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer, because the public will more easily refer to the signs by their verbal element (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37; 19/12/2011, R 233/2011‑4 BEST TONE (FIGURATIVE MARK) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011‑5, Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59). This applies also in the present case with regard to the earlier mark’s square frame and the contested sign’s cube device, which are merely of a decorative nature.

Therefore, for all the aforementioned reasons and also taking into account the issues of distinctiveness and dominance, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters/word ‘CUBE’/’cube’, which are present identically in both marks and are the most distinctive and dominant word in the contested sign. The pronunciation differs in the sound of the word ‘LE’ and the last letter ‘S’ of the earlier mark and the slogan ‘ULTIMATE CHALLENGE’, which will most probably not be pronounced by the consumers, due to its very small size.

Therefore, for all the aforementioned reasons and also taking into account the issues of distinctiveness and dominance, the signs are aurally similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As both signs will be associated with a similar meaning on account of the words ‘CUBE’/’cube’, reinforced by the concept of the cube device in the contested sign, the marks are conceptually similar to a high degree.

As the signs have been found similar in all aspects of the comparison, the examination of likelihood of confusion will proceed.

4. 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, despite the presence of some weak elements in the mark, as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

A likelihood of confusion (including a likelihood of association) 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.

The services are identical and target the public at large who pay an average to an above average level of attention. The earlier mark as a whole has a normal degree of distinctiveness.

The applicant argues that they only provide interactive ‘team games, the goal of which is to complete a series of different tasks as an individual or in team environment… in rooms especially designed’, and that these services are different to the services actually provided by the opponent.

However, this argument of the applicant must be dismissed. The comparison of the goods and services must be based on the wording indicated in the respective lists of goods/services. Any actual or intended use not stipulated in the list of goods/services is not relevant for the comparison, since this comparison is part of the assessment of likelihood of confusion in relation to the goods/services on which the opposition is based and directed against; it is not an assessment of actual confusion or infringement (judgment of 16/06/2010, T-487/08, Kremezin, EU:T:2010:237, § 71).

The marks are visually similar to an average degree and aurally and conceptually similar to a high degree.

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 the their imperfect recollection of trade marks (21/11/2013, T-443/12, ancotel, EU:T:2013:605, § 54).

Taking into account all the circumstances, the coincidence between the most distinctive and dominant elements of the contested sign, with the coinciding letters falling at the beginning, where the consumer usually focuses its attention, is enough to counteract the few differences that lie merely in elements with a limited impact. Consumers will not be able to distinguish between the marks in relation to the services found to be identical, and will perceive the latter as having the same origin.

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 French trade mark registration No 4 172 259. It follows that the contested trade mark must be rejected for all the contested services.

As the earlier right French trade mark registration No 4 172 259 leads to the success of the opposition and to the rejection of the contested trade mark for all the services against which the opposition was directed, there is no need to examine the other earlier right invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(5) EUTMR, which was requested in relation to the other earlier mark.

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

Michal KRUK

Chantal VAN RIEL

Helen Louise MOSBACK

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.