OPPOSITION No B 3 086 712

Geze GmbH, Reinhold-Vöster-Str. 21 - 29, 71229 Leonberg, Germany (opponent), represented by Manitz Finsterwald Patent- und Rechtsanwaltspartnerschaft mbB, Martin-Greif-Str. 1, 80336 München, Germany (professional representative)

a g a i n s t

Innjoo Technology Co., Ltd, Room 1303, Block 3, Manjinghua Yiluan Building, Xixiang Avenue, Bao'an District, Shenzhen, People’s Republic of China (applicant), represented by Ipside, 6 Impasse Michel Labrousse, 31100 Toulouse, France (professional representative).

On 27/04/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 086 712 is upheld for all the contested goods and services, namely:

Class 6: Padlocks; locks of metal, other than electric; spring locks; lock bolts; locks of metal for vehicles; door fasteners of metal; spring locks of metal, other than electric.

Class 9: Locks, electric; electronic locks; biometric fingerprint door locks; digital door locks; radio-frequency controlled locks; electronic access control systems for interlocking doors; pulse operated latching relays; electric locks for vehicles; theft prevention installations, electric; anti-theft warning apparatus.

Class 20: Locks, other than electric, not of metal; door fasteners, not of metal; cylinder locks made of non-metallic materials; locks, not of metal, for vehicles; door fittings, not of metal.

Class 37: Installation, changing, replacement and repair of locks; lock repair services; repair of security locks; electric appliance installation and repair; installation of doors and windows.

2. European Union trade mark application No 18 047 105 is rejected for all the contested goods and services. It may proceed for the remaining goods and services.

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

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 18 047 105 for the figurative mark , namely against all the goods in Class 9 and some of the goods and services in Classes 6, 20 and 37. The opposition is based on European Union trade mark registration No 11 576 717 for the word mark ‘IQ lock’. The opponent invoked Articles 8(1)(a) and (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 goods and services on which the opposition is based are the following:

Class 6: Door, gate and window fittings of metal; locks [other than electric] of metal; spring locks; padlocks.

Class 9: Electric and electronic locks; electric self-locking panic locks, electric motorised locks and electric lever locks; locking devices, namely electric locking devices for doors in emergency and safety exits; electric and electronic access control apparatus; alarm device; access control apparatus (as far as included in class 9); switches.

Class 20: Locks, other than electric, not of metal.

Class 37: Assembly and installation for commissioning and maintenance and repair of doors, gates, windows; installation for commissioning and the maintenance and repair of fire prevention equipment, namely fire and smoke control shutters, fire and smoke and heat alarms and devices for operating and controlling ventilation elements.

The contested goods and services are the following:

Class 6: Padlocks; locks of metal, other than electric; spring locks; lock bolts; locks of metal for vehicles; door fasteners of metal; spring locks of metal, other than electric.

Class 9: Locks, electric; electronic locks; biometric fingerprint door locks; digital door locks; radio-frequency controlled locks; electronic access control systems for interlocking doors; pulse operated latching relays; electric locks for vehicles; theft prevention installations, electric; anti-theft warning apparatus.

Class 20: Locks, other than electric, not of metal; door fasteners, not of metal; cylinder locks made of non-metallic materials; locks, not of metal, for vehicles; door fittings, not of metal.

Class 37: Installation, changing, replacement and repair of locks; lock repair services; repair of security locks; electric appliance installation and repair; installation of doors and windows.

The term ‘namely’, used in the opponent’s list of goods and services to show the relationship of individual goods and services to a broader category, is exclusive and restricts the scope of protection only to the goods and services specifically listed.

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 6

Padlocks; locks of metal, other than electric; spring locks are identically contained in both lists of goods (albeit using a slightly different wording).

The contested lock bolts; locks of metal for vehicles; door fasteners of metal; spring locks of metal, other than electric are included in, or overlap with, the broad category of the opponent’s locks [other than electric] of metal. Therefore, they are identical.

Contested goods in Class 9

Locks, electric; electronic locks are identically contained in both lists of goods.

The contested biometric fingerprint door locks; digital door locks; radio-frequency controlled locks; electronic access control systems for interlocking doors; electric locks for vehicles are all access control devices. Accordingly, these contested goods are included in the broad category of the opponent’s electric and electronic access control apparatus. Therefore, they are identical.

The contested theft prevention installations, electric include, as a broader category, the opponent’s alarm device. 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 anti-theft warning apparatus are included in the broad category of the opponent’s alarm device. Therefore, they are identical.

The contested pulse operated latching relays are classified under ‘electrical and electronic components’ and thus they are similar to the opponent’s electric and electronic access control apparatus, as they can have the same producer, distribution channels and relevant public.

Contested goods in Class 20

Locks, other than electric, not of metal are identically contained in both lists of goods.

The contested cylinder locks made of non-metallic materials; locks, not of metal, for vehicles are included in the broad category of the opponent’s locks, other than electric, not of metal. Therefore, they are identical.

The contested door fasteners, not of metal; door fittings, not of metal are similar to the opponent’s locks, other than electric, not of metal, as they can have the same producer, distribution channels and relevant public.

Contested services in Class 37

Installation of doors and windows are identically contained in both lists of services (albeit using a slightly different wording).

The contested electric appliance installation and repair are similar to the opponent’s assembly and installation for commissioning and maintenance and repair of doors, gates, windows, as these services have the same nature. They can also have the same providers and target the same relevant public.

The contested installation, changing, replacement and repair of locks; lock repair services; repair of security locks are similar to the opponent’s electric and electronic locks in Class 9, as they can have the same provider, distribution channels and relevant public.

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 identical or similar are directed at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention may vary from average to high, depending on the price, sophistication, or terms and conditions of the goods and services purchased. For example, the degree of attention will be average in the case of spring locks, locks, other than electric, not of metal, whereas it will be high in the case of theft prevention installations, electric.

3. The signs

IQ lock
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). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The element ‘LOCK’ that the signs have in common is meaningful in certain territories, for example in those countries where English is understood, and its meaning has a direct impact in relation to some of the relevant goods and services. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the non‑English speaking part of the public, such as the Spanish consumers for which this element is meaningless, since this is the best case‑scenario for likelihood of confusion to arise.

The element ‘LOCK’ is meaningless for the relevant public under examination and, therefore, distinctive.

The respective elements ‘IQ’ of the earlier mark and ‘iO’ of the contested sign will not be associated to any concept and are, therefore, distinctive in relation to the goods and services in question.

The stylisation of the contested sign is rather standard and, therefore, will have a very limited distinctive character.

The earlier mark is a word mark. In the case of word marks, it is the word as such that is protected and not its written form. Therefore, it is irrelevant whether it is depicted in upper or lower case letters, or in a combination thereof. Consequently, the difference in the signs under comparison in this regard is immaterial.

Visually and aurally, the signs coincide in the first letter of their first element, ‘I’, and its sound, as well as in their second element, ‘LOCK’, and its pronunciation. The signs differ in the second letter of their first element, ‘O’ versus ‘Q’, and in their sounds, although they are visually quite similar. The signs also differ in the arrangement of the elements in the contested sign, one above the other, and their rather standard stylisation. The signs coincide in their lengths, rhythms and intonations.

Therefore, the signs are visually and aurally highly similar.

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. 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 and services in question from the perspective of the relevant public under examination. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. 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. 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).

In the present case, the goods and services are partly identical and partly similar. They target the public at large and business customers with a degree of attention that varies from average to high.

The distinctiveness of the earlier mark is normal.

The signs are visually and aurally similar to high degree on account of their important commonalities, as explained in section c) of the present decision, whereas the conceptual comparison between the signs is not possible.

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 their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54). In the present case, bearing in mind that the differing letters ‘Q’ and ‘O’ are visually very similar, and the rest of the verbal elements forming the signs are identical, it is highly probable that the relevant public, even when displaying a high degree of attention, will not recall in detail the difference abovementioned.

Considering all the above, there is a likelihood of confusion on the Spanish‑speaking part of the public. 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.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 11 576 717. It follows that the contested trade mark must be rejected for all the contested goods and services.

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(1)(a) EUTMR, as the signs are obviously not identical.

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

Marzena MACIAK

Marta GARCÍA COLLADO

Chantal VAN RIEL

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.