OPPOSITION No B 3 093 068

Camper, S.L., Poligono Industrial s/n, 07300, Inca (Baleares), Spain (opponent), represented by Abril Abogados, C/Amador de los Ríos, 1-1°, 28010, Madrid, Spain (professional representative)

a g a i n s t

Michael Walter, Emilienstraße 23, 04107 Leipzig, Germany (applicant), represented by Jan Marschner, Markt 9, 04109 Leipzig, Germany (professional representative)

On 19/08/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 093 068 is upheld for all the contested goods, namely:

Class 25: Gym suits; underwear; track jackets; sports pants; sweat shorts;

tee-shirts; jackets [clothing]; socks; shoes; boots for sports; caps

[headwear]; waist belts; sweaters; tank tops; caps with visors.

2. European Union trade mark application No 18 059 210 is rejected for all the contested goods. It may proceed for the remaining services in Class 41.

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

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 18 059 210 ‘TWINKX’ (word mark), namely against all the goods in Class 25. The opposition is based on, inter alia, European Union trade mark registration No 11 285 806 . 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 European Union trade mark registration No 11 285 806.

a) The goods

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

Class 25: Clothing, footwear, headgear.

The contested goods are the following:

Class 25: Gym suits; underwear; track jackets; sports pants; sweat shorts; tee-shirts; jackets [clothing]; socks; shoes; boots for sports; caps [headwear]; waist belts; sweaters; tank tops; caps with visors.

The contested goods are all items of clothing, footwear or headgear and consequently included in these broad categories of the opponent. Therefore, the goods are identical.

b) 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 is considered to be average.

c) The signs

	TWINKX
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 earlier mark is a figurative mark although the depiction of the bold black upper case letters is not particularly stylized and of a mere decorative nature.

Since the earlier mark is an English word that would be understood by the English-speaking part of the public as e.g. ‘something containing or consisting of two matching or corresponding parts’ and thus would have an influence on the conceptual assessment of the signs, 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 French-, Italian-, and Spanish-speaking parts of the public, which would be more likely to confuse the signs, as the English word ‘TWINS’ is meaningless to them, since it clearly differs from the equivalent words in the relevant languages (e.g. ‘gemelli’ in Italian, ‘gemelos’ in Spanish and ‘jumeauxt’ in French). Consequently, the verbal element ‘TWINS’ will be perceived as a meaningless fanciful term by these parts of the public and has an average degree of distinctiveness in relation to the goods in question.

The contested sign has no meaning for the relevant public either and is normally distinctive.

Visually, the signs coincide in ‘TWIN’. They differ in the letter type of the earlier mark - albeit merely decorative - and their respective endings ‘S’ and ‘KX’.

In the present case it is particularly important to take into account that consumers generally tend to focus on the beginning of a sign when they encounter a trade mark (because the public reads from left to right, which makes the part placed at the left of the sign the one that first catches the attention of the reader).

Consequently, the fact that the beginning of the contested sign, namely ‘TWIN’ is identical to four out of five letters of the earlier mark, contributes significantly to the degree of visual similarity between the signs.

Therefore, the signs are considered visually similar to an average degree.

Aurally, as there is little perceptible difference by the relevant public in the pronunciation of the different endings of the signs, namely ‘S’ and ‘KX’, which letter combination provokes equally an ‘s’ sound at the end of the contested sign since the letter ‘K’ receives less sound or might even be silent when preceding the letter ‘X’, ‘TWINS’ and ‘TWINKX’ are considered to be highly similar on an aural level.

Conceptually, neither of the signs has a meaning for the public in the relevant territory on which the current assessment focuses. 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.

d) 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 on which the current assessment focuses. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) Global assessment, other arguments and conclusion

Account should also be 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).

As concluded above, the contested goods are identical to the opponent’s goods and they target the public at large which has an average degree of attention. The inherent distinctiveness of the earlier mark is normal.

The contested sign is visually similar to an average degree and aurally highly similar to the earlier mark, whereas the conceptual aspect remains neutral. As detailed in section c), the first four letters of the marks are identical and the differences lie in their ending, respectively one and two letters, ‘S’ and ‘KX’. It is therefore considered that the difference between the signs is not of such a nature as to distract consumers’ attention from their identical beginnings and especially also considering that aurally the signs are highly similar and the stylization of the earlier mark is relatively standard.

Bearing in mind the principle of imperfect recollection, and the considerable overall similarities between the signs, the Opposition Division finds that there is a likelihood of confusion on the part of the public at large in the relevant territory that will perceive both signs as consisting of fanciful words without any meaning. Indeed, the relevant general public under analysis is likely to believe that the goods offered under the contested sign originate from the same undertaking that offers identical goods under the earlier mark, or by an economically linked undertaking.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the non-English-speaking part of the public, such as the French-, Italian-, and Spanish-speaking parts of the public. As stated above in section c) of this decision, a likelihood of confusion for only part 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 11 285 806.

It follows from the above that the contested trade mark must be rejected for all the contested goods.

As the aforesaid earlier right 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

Rasa BARAKAUSKIENÉ

Cynthia DEN DEKKER

Biruté SATAITE-GONZÁLEZ

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.