OPPOSITION No B 3 087 712

Kondator AB, Energivägen 8, 135 49 Tyresö, Sweden (opponent), represented by Ehrner & Delmar Patentbyrå AB, Drottninggatan 33, plan 4, 111 51 Stockholm, Sweden (professional representative)

a g a i n s t

Wanka Technology Limited, 2/F Building C, Licheng Tech. Ind. Zone, Shajing Town, Baoan District, Shenzhan City (Guangdong Province), People’s Republic of China (applicant), represented by Arpe Patentes y Marcas S.L., C/Proción 7, Edificio América II, Portal 2 1ºC, 28023 Madrid-Aravaca, Spain (professional representative).

On 17/09/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 087 712 is upheld for all the contested goods, namely

Class 9: Couplers [data processing equipment]; electric connectors; electrical adapters; chargers for electric batteries; materials for electricity mains [wires, cables].

2. European Union trade mark application No 18 063 421 is rejected for all the contested goods. It may proceed for the remaining goods.

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 18 063 421 for the word mark ‘powerlot’, namely against some of the goods in Class 9. The opposition is based on European Union trade mark registration No 15 305 139 for the figurative 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.

a) The goods

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

Class 9: Power adapters; connecting sockets; peripheral devices for mains adapters and connection sockets, included in this class; all the aforesaid goods solely in relation to sale to retailers or distributors.

The contested goods are the following:

Class 9: Couplers [data processing equipment]; electric connectors; electrical adapters; chargers for electric batteries; materials for electricity mains [wires, cables].

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.

The contested electric connectors are included in, or overlap with, the opponent’s connecting sockets. Therefore, they are identical.

The contested electrical adapters; chargers for electric batteries are included in, or overlap with, the opponent’s power adapters, as all these function as power supplies. Therefore, they are identical.

The contested couplers [data processing equipment]; materials for electricity mains [wires, cables] are electric materials with the purpose of transmitting electricity, and are highly similar to the opponent’s power adapters and connecting sockets. They coincide in nature, purpose, method of use, as well as producer and relevant public.

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 or highly similar are directed at the public at large and directed at business customers with specific professional knowledge or expertise. The degree of attention is average, contrary to the applicant’s view, as the goods are everyday simple electrical devices.

c) The signs

	powerlot
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.

Although the consumer normally perceives a trade mark as a whole and does not proceed to analyse its various details, they will nevertheless, when perceiving a verbal sign, break it down into verbal elements which, for them, suggest a concrete meaning or which resemble words known to them (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57).

The Opposition Division finds that all the relevant public will separate the word ‘POWER’ in the contested mark from the additional letters. The English word ‘power’ is widely used in relation to the goods at issue (e.g. for batteries and battery chargers) throughout the European Union and is considered a basic English word. Therefore, the consumers will understand ‘POWER’ as ‘ …energy, especially electricity, that is obtained in large quantities from a fuel source and used to operate lights, heating, and machinery’ (information extracted from the Collins English Dictionary on 08/09/2020 at https://www.collinsdictionary.com/es/diccionario/ingles/power) and, consequently, as referring directly to the purpose of the relevant goods in Class 9. Bearing this in mind, ‘POWER’ is deemed descriptive in both marks (25/05/2020, R 2184/2019‑5, FORCE POWER (fig.) / FORSEE POWER (fig.) et al.§ 37,38).

Moreover, the English speakers will identify also the words ‘dot’ and ‘lot’ in the signs. However, these words have different meanings that cannot be regarded as basic and understood throughout the European Union. Consequently, as the conceptual difference will not be grasped by those who do not understand English, such as the Spanish-speaking public, the Opposition Division finds it appropriate to focus the comparison of the signs on the Spanish-speaking part of the public.

The earlier sign is composed of the verbal elements ‘power’ and ‘dot’, one under the other in a slightly stylised bold font. Their conceptual meaning has been elaborated further above, stating that ‘power’ will be understood as a basic English word and non-distinctive for the relevant goods, as it refers to the transmission/existence of energy/electricity. The verbal element ‘dot’ will not be understood and, consequently, has a normal degree of distinctiveness. The letter ‘o’ of the word ‘dot’ is a purple circle. The figurative elements, stylised bold font and the purple circle, being a simple geometrical shape, are of a purely decorative nature. Therefore, the verbal elements are more distinctive than the figurative elements. Moreover, no element can be considered more dominant than other elements, as none is visually more striking than another but are more or less the same size, contrary to the applicant’s arguments.

The contested sign is a single word, ‘powerlot’, which has no meaning and is distinctive to a normal degree as a whole. However, as stated previously, the verbal element ‘power’ will be understood and has no distinctiveness in relation to the relevant goods. The remaining letters form an English word, ‘lot’, which, however, is not basic, contrary to the applicant’s arguments (no evidence to sustain this claim was submitted) and will not be understood by the relevant public. It is, therefore, distinctive.

Visually, the signs coincide in the letters forming the word ‘power’ and the last two letters, ‘ot’. However, they differ in the figurative stylisation of the earlier sign, which is of a decorative nature, and the letters ‘d’/’l’ (the first letter of the second element of the earlier mark and the middle letter of the contested sign respectively). Moreover, the signs differ in that the earlier mark is depicted on two lines while the contested mark forms one single element.

Therefore, as the signs coincide in seven out of eight letters, a similarity between them cannot be denied. This is even though the first five letters form the non-distinctive word ‘POWER’, as, in all, the verbal elements of the signs differ in only one letter. Consequently, even bearing in mind the non-distinctive character of the word ‘POWER’ and the different composition of both marks, they are visually similar at least to a low degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘power*ot’, differing only in the middle letters ‘d/l’. Consequently, the signs are aurally similar to a high degree.

Conceptually, neither of the signs has a meaning as a whole. Although the coinciding word ‘power’ will evoke a concept, it is not sufficient to establish any conceptual similarity, as this element is non-distinctive and cannot indicate the commercial origin. The attention of the relevant public will be attracted by the additional fanciful verbal elements, which have no meaning. 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. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of some non‑distinctive elements in the mark, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

According to case-law, a likelihood of confusion must be appreciated globally, in accordance with the relevant public’s perception of the signs and of the goods and services in question, taking into account all factors relevant to the circumstances of the case (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22, and 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18), in particular the similarity between the marks and the similarity between the goods and services, which are interdependent criteria in the sense that a lesser degree of similarity between the goods 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).

The signs are visually similar to at least a low degree and aurally similar to a high degree, and the conceptual aspect does not influence the assessment. The same non-distinctive element at the beginning, followed by three letters out of which two coincide (‘*ot’), and which do not have any meaning for the relevant public, consequently create no conceptual difference to sufficiently differentiate between the signs; all these factors produce an unmistakeable perception of a shared commercial origin. Moreover, the goods are identical or highly similar, the earlier sign has a normal degree of inherent distinctiveness and the public’s degree of attention is also average. Therefore, the lesser degree of similarity between the signs is offset by the complete identity and high similarity of the goods (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

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). A difference of a single letter, or a separation of the sign into two separate elements, could be covered by this imperfect recollection. The decorative figurative elements will not be capable of differentiating sufficiently between the signs for the public to avoid the likelihood of confusion.

Considering all the above, there is a likelihood of confusion on the part of 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 15 305 139. 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 Maria CHYLIŃSKA

Astrid Victoria WÄBER

Beatrix STELTER

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.