OPPOSITION No B 3 093 152

Apeman International Co., Limited, Room 126, Building11, Huanan Avenue No.1, Huanan City International Printing paper packaging, People’s Republic of China (opponent), represented by Arpe Patentes y Marcas, S.L., C/Proción, 7, Edificio América II, Portal 2, 1ºC, 28023 Madrid-Aravaca, Spain (professional representative)

a g a i n s t

Shenzhen Yuqi Technology Co. Ltd., 302 No.5 North 5th Alley, Dafutian Rd., Huangtian Community, Hangcheng Str., Bao'an Dist., Shenzhen, People’s Republic of China (applicant), represented by Isabelle Bertaux, 55 rue Ramey, 75018 Paris, France (professional representative)

On 08/07/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 093 152 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 18 032 824 (figurative). The opposition is based on the following earlier rights:

• European Union trade mark registration No 15 450 638 (figurative) (hereinafter referred to as earlier mark 1).

• European Union trade mark registration No 15 926 091 (figurative) (hereinafter referred to as earlier mark 2).

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

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

Goods of earlier mark 1:

Class 9: Navigational instruments; slide projectors; projection screens; camcorders; cameras [photography]; DVD players; monitoring apparatus electric; radios; earphones; diaphragms [acoustics]; weighing machines; sound recording apparatus; digital photo frames; branch boxes [electricity]; headphones; batteries, electric; solar batteries; 3D spectacles; computer software, recorded; electronic pens [visual display units]

Goods of earlier mark 2:

Class 9: Close-up lenses; drying racks [photography]; shutter releases [photography]; cases especially made for photographic apparatus and instruments; filters [photography]; tripods for cameras; flashlights [photography]; lens hoods; remote control apparatus; projection apparatus; drying apparatus for photographic prints; spools [photography]; photographic exposure meters; stands for photographic apparatus; darkroom lamps [photography]; viewfinders, photographic; screens [photography]; shutters [for cameras]; bags adapted for carrying photographic apparatus.

The contested goods are the following:

Class 9: Underwater cameras; personal video recorders (PVRs); speaker enclosures; headphones; car video recorders; electrical and electronic burglar alarms; wireless headsets for smartphones; rechargeable electric batteries; smartglasses; smartwatches; cameras; wearable video display monitors; virtual reality headsets; projection screens; security surveillance robots.

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

The contested underwater cameras; cameras; car video recorders; personal video recorders (PVRs) are identical to the opponent´s cameras [photography] of earlier mark 1, either because they are identically contained in both lists (including synonyms) or because they contested goods fall in the broad category of the opponent´s goods.

The contested headphones; wireless headsets for smartphones are identical to the opponent´s earphones of earlier mark 1, either because they consist of synonyms for the same goods, or because the contested goods fall in the broad category of goods of the opponent.

The contested projection screens are identically contained in the opponent´s list of goods of earlier mark 1.

The contested virtual reality headsets overlap with the opponent´s 3D spectacles of earlier mark 1, since they are frequently found as one same product. They are, therefore, considered identical.

The contested rechargeable electric batteries fall in the broad category of, and are therefore identical to, the opponent´s batteries, electric of earlier mark 1.

The contested wearable video display monitors overlap with the opponent´s screens [photography]. They are therefore considered identical.

The contested electrical and electronic burglar alarms; security surveillance robots are similar to the opponent´s computer software of earlier mark 1, since they are complementary, can coincide in distribution channels/points of sale, can be directed at the same consumers and are likely to come from the same kind of undertakings.

The contested smartglasses; smartwatches are similar to the opponent´s computer software of earlier mark 1, since they are complementary, coincide in distribution channels/points of sale, can be directed at the same consumers and are likely to come from the same kind of undertakings.

The contested speaker enclosures are dissimilar to all of the opponent´s goods of both marks, since they differ in nature, purpose, method of use, distribution channels/points of sale. They are neither complementary nor in competition, are not directed at the same consumers or likely to originate from the same kind of undertakings.

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 or similar are directed at both, the public at large and professionals.

The degree of attention is likely to vary from average to higher than average. A higher than average degree is likely to be paid in relation to the goods are not frequently purchased and/or can be of high prices and/or require certain technical knowledge in order to be used.

3. The signs

Earlier trade marks	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).

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

The earlier marks are meaningless for the non-English-speaking part of the relevant public. For the English-speaking consumers they are perceived as the English word used to refer to ‘any of various extinct apelike primates thought to have been the forerunners, or closely related to the forerunners, of modern humans’ (information extracted from Collins English Dictionary at www.collinsdictionary.com on 03/07/2020). From both perspectives, the earlier mark is of average distinctive character in relation to the goods involved.

The contested sign is likely to be mentally dissected by consumers into ‘apex’ and ‘cam’, since ‘cam’ is a commonly used abbreviation for ‘camera’ in the relevant territory, and all the contested goods found to be identical or similar either consist of cameras, include cameras or can be designed to be used in relation to cameras. Therefore, the element ‘cam’ is weak in relation to the goods that are somehow related to cameras or images, such as virtual reality headsets, and it is non-distinctive in relation to the goods for which it is descriptive such as underwater cameras.

The remaining part of the sign, ‘apex’, is meaningless for a significant part of the relevant public (e.g. Spanish-speaking consumers). Another part of the public (e.g. English-speaking consumers) will perceive ‘apex’ as the word used to refer to ‘the pointed top or end’ of something, for instance an organization or system (information extracted from Collins English Dictionary at www.collinsdictionary.com on 03/07/2020). In any case, as it has no direct meaning in relation to the goods, it has an average distinctive character.

The marks compared do not have any element that is more dominant (visually eye-catching) than others.

Visually and aurally, the signs coincide in the letters ‘a-p-e-*-a’ (and their sound) and differ in the letters ‘xc-*-m’ and ‘m-*-n’ (and their sound).

Taking into account how the signs will be dissected and the low or lack of distinctiveness of the element ‘-cam’ of the contested sign, as explained above, it is considered that the marks are visually and aurally similar to a low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs will be associated with dissimilar meanings, the signs are conceptually dissimilar.

As the signs have been found similar in at least one aspect 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 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.

5. Global assessment, other arguments and conclusion

The goods compared are partly identical, partly similar and partly dissimilar. They are directed at both, the public at large and professionals, whose degree of attention is likely to vary from average to higher than average.

The signs are visually and aurally similar to a low degree and conceptually dissimilar.

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).

Despite the coincidences described in section c) and the identity or similarity of part of the goods, the Opposition Division considers that likelihood of confusion is not likely to occur, since the differences between the signs lend them a different overall impression, which is sufficient for consumers to differentiate the marks and their commercial origin. This is even more the case for the consumers that pay a higher than average degree of attention.

The opponent refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities. This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case. In the present case, the cases referred to by the opponent are not relevant to the present proceedings, since they refer to different goods and/or series and/or different signs (e.g. they are not mentally dissected in the same way and/or do not contain elements of low distinctive character or with a total lack of it). Therefore, the same reasoning cannot be expected to be followed or the same outcome reached.

Considering all the above, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

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

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

The Opposition Division

Chantal VAN RIEL

María del Carmen SUCH SANCHEZ

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.