OPPOSITION Nо B 3 101 753

Glaskoch B. Koch Jr. GmbH + Co. KG, Industriestraße 23, 33014 Bad Driburg, Germany (opponent), represented by Rehberg Hüppe + Partner Patentanwälte Partg mbB, Robert-Gernhardt-Platz 1, 37073 Göttingen, Germany (professional representative)

a g a i n s t

María Carmen Marco Perona, C/ Leonardo Bonet Marzal Nº 6 B, 5, 46860 Albaida (Valencia), Spain (applicant), represented by Fernando López-Prats Lucea, C/ Pizarro Nº 29, Pta. 4, 46004 Valencia, Spain (professional representative).

On 21/06/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 101 753 is rejected in its entirety.

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

REASONS

On 30/10/2019, the opponent filed an opposition against all the goods and services of European Union trade mark application No 18 064 504 for the figurative mark . The opposition is based on the European Union trade mark registration No 8 897 738 for the figurative mark , German trade mark registration No 302 009 068 273 and international trade mark registration designating Benelux, Bulgaria, the Czech Republic, Denmark, Estonia, Ireland, Greece, Spain, France, Croatia, Italy, Hungary, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden and the United Kingdom No 1 063 015, both for the figurative mark . The opponent invoked Article 8(1)(b) EUTMR.

CEASING OF EXISTENCE OF EUROPEAN UNION TRADE MARK REGISTRATION No 8 897 738

According to Article 46(1)(a) EUTMR, within a period of three months following the publication of an EUTM application, notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8:

(a) by the proprietors of earlier trade marks referred to in Article 8(2) as well as licensees authorised by the proprietors of those trade marks, in respect of Article 8(1) and 8(5);

[…].

Furthermore, according to Article 8(2) EUTMR, ‘earlier trade mark’ means:

(i) trade marks with a date of application for registration which is earlier than the date of application of the contested mark, taking account, where appropriate, of the priorities claimed in respect of the marks referred to in Article 8(2)(a) EUTMR;

(ii) applications for a trade mark referred to in Article 8(2)(a) EUTMR, subject to their registration;

(iii) trade marks which are well known in a Member State.

Therefore, the legal basis of the opposition requires the existence and validity of an earlier right within the meaning of Article 8(2) EUTMR.

In this respect, the opposition may be upheld only with respect to an earlier right that is valid at the moment when the decision is taken. The reason why the earlier right ceases, or ceased to have effect does not matter. Since the EUTM application and the earlier right that has ceased to have effect cannot coexist any more, the opposition cannot be upheld to this extent. Such a decision would be unlawful (13/09/2006, T‑191/04, Metro, EU:T:2006:254, § 33-36).

In the present case, the opponent filed an opposition based on, inter alia, European Union trade mark registration No 8 897 738. However, this mark expired on 19/02/2020 and therefore cannot serve as a valid basis for an opposition within the meaning of Article 46(1)(a) EUTMR and Article 8(2) EUTMR.

The opposition must therefore be rejected as unfounded insofar as it is based on this earlier right.

PRELIMINARY REMARK ON INTERNATIONAL TRADE MARK REGISTRATION DESIGNATING THE UNITED KINGDOM No 1 063 015

On 01/02/2020, the United Kingdom (UK) withdrew from the EU subject to a transition period until 31/12/2020. During this transition period EU law remained applicable in the UK. As from 01/01/2021, UK rights ceased ex-lege to be earlier rights protected ‘in a Member State’ for the purposes of proceedings based on relative grounds. The conditions for applying Article 8(1) EUTMR, worded in the present tense, must also be fulfilled at the time of taking the decision.

As international trade mark registration designating the United Kingdom No 1 063 015 is no longer a valid basis of the opposition, it is considered inadmissible and the opposition must be dismissed insofar as it is based on this earlier right.

PROOF OF USE

Proof of use of the earlier mark was requested by the applicant. However, at this point, the Opposition Division does not consider it appropriate to undertake an assessment of the evidence of use submitted (15/02/2005, T‑296/02, Lindenhof, EU:T:2005:49, § 41, 72). The examination of the opposition will proceed as if genuine use of the earlier mark(s) had been proven for all the goods invoked, which is the best light in which the opponent’s case can be considered.

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.

As far as international registration designating Benelux, Bulgaria, the Czech Republic, Denmark, Estonia, Ireland, Greece, Spain, France, Croatia, Italy, Hungary, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden and the United Kingdom No 1 063 015 is concerned, the earlier mark covers different lists of goods for each designation. For reasons of procedural economy, the Opposition Division considers it appropriate to focus the comparison on the international registration designating France and Italy, which are amongst those that cover the widest specification of goods as is the case for the earlier German trade mark registration No 302 009 068 273.

a) The goods and services

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

International registration No 1 063 015 designating France

Class 4: Candles for lighting.

Class 8: Table cutlery; can openers (non-electric), cutting tools.

Class 14: Precious metals and their alloys and goods of precious metals or coated therewith (included in this class); jewellery, precious stones; horological and chronometric instruments.

Class 20: Furniture; mirrors; picture frames.

Class 21: Glassware, crystal glassware, porcelain, earthenware, included in this class; unworked or semi-worked glass (except glass used in building); drinking vessels, pitchers, decanters, drinking glasses; tableware; tea services, coffee services and dinner services; dishes; plates; vases; trays; coasters (table utensils); butter dishes; egg cups; candlesticks; sparkling wine buckets, ice buckets; soap dispensers; soap holders, dishes for soaps, soap boxes; toothbrush glasses, toothbrush glass holders, toothbrush holders; toilet paper holders, toilet brushes, toilet brush holders; towel holders (not of metal), bath towel holders (not of metal).

Class 24: Textiles and textile goods (included in this class); bed linen; bed covers; table covers; covers for cushions; curtains of textile; place mats (not of paper); roller blinds of textile; table napkins of textile; wall hangings of textile.

Class 26: Artificial plants, artificial flowers.

Class 34: Ashtrays of (non-precious metals).

International registration No 1 063 015 designating Italy

Class 3: Essential oils; preparations for perfuming linen; scented oils; scented water; room scenters (fragrances); soaps; perfumery goods; cosmetics for body and beauty care.

Class 4: Candles for lighting.

Class 8: Table cutlery; can openers (non-electric), cutting tools.

Class 11: Lighting apparatus; lights; LED lights; electric lamps; lighting devices; parts and replacement parts for the aforesaid goods, included in this class; fairy lights for festive decoration.

Class 14: Precious metals and their alloys and goods of precious metals or coated therewith (included in this class); jewellery, precious stones; horological and chronometric instruments.

Class 20: Furniture; mirrors; picture frames.

Class 21: Glassware, crystal glassware, porcelain, earthenware, included in this class; unworked or semi-worked glass (except glass used in building); drinking vessels, pitchers, decanters, drinking glasses; tableware; tea services, coffee services and dinner services; dishes; plates; vases; trays; coasters (table utensils); butter dishes; egg cups; candlesticks; sparkling wine buckets, ice buckets; soap dispensers; soap holders, dishes for soaps, soap boxes; toothbrush glasses, toothbrush glass holders, toothbrush holders; toilet paper holders, toilet brushes, toilet brush holders; towel holders (not of metal), bath towel holders (not of metal).

Class 24: Textiles and textile goods (included in this class); bed linen; bed covers; table covers; covers for cushions; curtains of textile; place mats (not of paper); roller blinds of textile; table napkins of textile; wall hangings of textile.

Class 26: Artificial plants, artificial flowers.

German trade mark registration No 302 009 068 273

Class 3: Essential oils; preparations for perfuming linen; scented oils; scented water; room scenters (fragrances); soaps; perfumery goods; cosmetics for body and beauty care.

Class 4: Candles for lighting.

Class 8: Table cutlery; can openers (non-electric); cutting tools.

Class 9: Apparatus for recording, transmitting and reproducing sound and images; data processing apparatus, computers, laptops (computers), computer screens, LCD screens, computer peripheral devices, computer keyboards, computer programs (downloadable), computer software (recorded); television apparatus; telephone apparatus, mobile phones; headsets, speakers, speaker boxes; spectacle frames, eyeglass frames, spectacle lenses, contact lenses, containers for contact lenses, sunglasses, goggles for sports; scales.

Class 11: Lighting apparatus; lights; LED lights; electric lamps; lighting devices; parts and replacement parts for the aforesaid goods, included in this class; fairy lights for festive decoration.

Class 14: Precious metals and their alloys and goods of precious metals or coated therewith (included in this class); jewellery, precious stones; horological and chronometric instruments.

Class 18: Leather and imitations of leather and goods made of these materials (included in this class); bags with wheels, handbags, wallets, shopping bags, satchels, sports bags (included in this class), purses; portfolios (included in this class); trunks, travelling bags, vanity cases, backpacks, garment bags for travel; umbrellas, parasols; walking sticks; dog collars, dog leads.

Class 20: Furniture; mirrors; picture frames.

Class 21: Glassware, crystal glassware, porcelain, earthenware (included in this class); unworked or semi-worked glass (except glass used in building); drinking vessels, pitchers, decanters, drinking glasses; tableware; tea services, coffee services and dinner services; dishes; plates; vases; trays; coasters (table utensils); butter dishes; egg cups; candlesticks; sparkling wine buckets, ice buckets; soap dispensers; soap holders, dishes for soaps, soap boxes; toothbrush glasses, toothbrush glass holders, toothbrush holders; toilet paper holders, toilet brushes, toilet brush holders; towel holders, bath towel holders, hand-towel hooks (not of metal), bath-towel hooks (not of metal).

Class 24: Textiles and textile goods (included in this class); bed linen; bed covers; table covers; covers for cushions; curtains of textile; place mats (not of paper); roller blinds of textile; table napkins of textile; wall hangings of textile.

Class 26: Artificial plants, artificial flowers.

Class 27: Carpets; floor coverings; mats; rugs; bath mats; wall hangings (non-textile); wall coverings (non-textile).

Class 34: Ashtrays (not of precious metals).

The contested goods and services are the following:

Class 3: Cosmetics, perfumery; bath, beauty and cosmetic lotions; cosmetic masks; face creams for cosmetic use; perfumed soaps and gels; essential oils; toiletry preparations and bath preparations; baby care products; make-up pads of cotton wool; cosmetic kits; compacts containing make-up; body sprays; all-purpose cotton buds for personal use.

Class 4: Perfumed candles; perfumed candles.

Class 5: Car deodorants; air deodorising preparations; air freshener refills; deodorizing preparations for household, commercial or industrial use; baby food; babies’ diapers.

Class 9: Spectacles [optics]; covers and cases for mobile devices and telephones; Cords and straps for telephones and mobile devices.

Class 10: Clinical thermometers; dummies and feeding bottles.

Class 12: Safety seats for infants and children for vehicles; infants’ carriages with removable infant supports; wheeled transporters for babies; stroller covers.

Class 14: Costume jewellery and jewellery; clocks and watches and articles for clocks and watches, including cases and holders therefor.

Class 18: Animal skins, hides; trunks and travelling bags; umbrellas, parasols, canes and walking sticks; goods of leather and imitations of leather, namely, handbags, bags, travelling bags, wallets; canvas bags, multi-purpose sports bags, book bags.

Class 20: Bassinets; beds; cushions and pillows; furniture; photograph frames; baskets, non-metallic; tea carts; boxes of wood; statues, figurines, works of art and ornaments and decorations, made of materials such as wood, wax, plaster or plastic, included in the class; coatstands; mirrors (silvered glass); furniture for children; high chairs for babies; deck chairs; safety gates for babies and children (not of metal); picture frames; changing mats; playpens; baby bath seats; babies’ bouncing chairs.

Class 21: Vases; cups; trivets [table utensils]; tableware, cookware and containers; flower pots; epergnes; combs; baby baths, portable.

Class 24: Bed linen and table linen; laminated fabrics; waterproof textile fabrics and laminated fabrics.

Class 25: Clothing; footwear; headgear.

Class 26: Lace, embroidery; bows, ribbons and braid for the hair; buttons, hooks and eyes.

Class 27: Carpets; doormats, mats.

Class 28: Rattles [playthings]; plush toys; toys, games, playthings and novelties; infants’ swings.

Class 35: Advertising; franchising relating to business management assistance; import and export of perfumery and cosmetics, bath lotions, beauty lotions and lotions for cosmetic purposes, beauty masks, facial creams, perfumed soaps and gels, essential oils, toiletry preparations and bath preparations, baby care products, make-up pads of cotton wool, cosmetic kits, make-up cases, body sprays, multipurpose cotton sticks for personal use, scented candles and perfumed candles, air deodorising preparations for cars, air deodorisers, refills for air fresheners, deodorising preparations for household, commercial or industrial use, food for babies, babies’ nappies, relating to spectacles, cases for mobile telephones and devices, cords and straps for mobile telephones and devices, clinical thermometers, of dummies (teats) for babies, babies’ bottles, safety seats for infants and children for vehicles, pushchairs with removable infant supports, wheeled transporters for babies, pushchair covers, jewellery and horological articles, cases therefor, animal skins, hides, trunks and travelling bags, umbrellas, parasols, and walking sticks, bags, wallets, travelling bags, wallets, duffel bags, multi-purpose sports bags, and book bags, cots, beds, pillows and cushions, of furniture, photograph and picture frames, baskets, not of metal, tea trolleys, boxes of wood, statues, figurines (statuettes) and works of art, and ornaments and decorative articles made from materials including wood, flour wax, gypsum or plastic, coatstands, mirrors (looking glasses), furniture for babies, high chairs for babies, hammocks, safety gates, not of metal, for babies and children, baby changing mats, playpens for babies, bath seats for babies, babies’ bouncing chairs, combs, baby baths [portable], vases, cups, place mats, tableware, cooking pot sets and containers, flower pots, centrepieces, bed linen and table linen, featuring apparel, footwear, headgear, and lace trimmings, embroidery, braid, ribbons and braid for the hair, carpets, mats and matting, rattles (playthings), plush toys, games, playthings and novelties and infants’ swings; commercial wholesaling and retailing, or via mail order catalogues or via electronic media or via websites or teleshopping programmes of perfumery and cosmetics, bath lotions, beauty lotions and lotions for cosmetic purposes, beauty masks, facial creams, perfumed soaps and gels, essential oils, toiletry preparations and bath preparations, baby care products, make-up pads of cotton wool, cosmetic kits, make-up cases, body sprays, multipurpose cotton sticks for personal use, scented candles and perfumed candles, air deodorising preparations for cars, air deodorisers, refills for air fresheners, deodorising preparations for household, commercial or industrial use, food for babies, babies’ nappies, relating to spectacles, cases for mobile telephones and devices, cords and straps for mobile telephones and devices, clinical thermometers, of dummies (teats) for babies, babies’ bottles, safety seats for infants and children for vehicles, pushchairs with removable infant supports, wheeled transporters for babies, pushchair covers, jewellery and horological articles, cases therefor, animal skins, hides, trunks and travelling bags, umbrellas, parasols, and walking sticks, bags, wallets, travelling bags, wallets, duffel bags, multi-purpose sports bags, and book bags, cots, beds, pillows and cushions, of furniture, photograph and picture frames, baskets, not of metal, tea trolleys, boxes of wood, statues, figurines (statuettes) and works of art, and ornaments and decorative articles made from materials including wood, flour wax, gypsum or plastic, coatstands, mirrors (looking glasses), furniture for babies, high chairs for babies, hammocks, safety gates, not of metal, for babies and children, baby changing mats, playpens for babies, bath seats for babies, babies’ bouncing chairs, combs, baby baths [portable], vases, cups, place mats, tableware, cooking pot sets and containers, flower pots, centrepieces, bed linen and table linen, featuring apparel, footwear, headgear, and lace trimmings, embroidery, braid, ribbons and braid for the hair, carpets, mats and matting, rattles (playthings), plush toys, games, playthings and novelties and infants’ swings.

Some of the contested goods and services are identical or similar to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above. The examination of the opposition will proceed as if all the contested goods and services were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 and services assumed to be identical are directed at the public at large and business customers with specific professional knowledge or expertise.

The degree of attention is expected to vary between average and high on account of the price and frequency of purchase of some of the goods and services in question (e.g. those in Class 14).

c) The signs

Earlier trade marks	Contested sign

The relevant territories are France and Italy (for the international registration designating those countries) and Germany (for the earlier German trade mark).

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 verbal element ‘LEONARDO’ of the earlier marks is a male first name and will be perceived as such across the European Union, thus including the countries taken into account in the present examination. Since this element has no clear connection with the goods in question, it is deemed distinctive to an average degree.

The figurative element of the earlier marks depicts a white irregular shape against a background of a blue square with rounded corners. The figurative element of the earlier marks may lend itself to non-univocal interpretations. However, one of those interpretations is that of a highly stylised cloud. Since the depiction of a cloud is the only coincidence between the signs, the Opposition Division finds it appropriate to examine the opposition under this assumption, which represents the best-case scenario in which the case can be assessed for the opponent.

The figurative element of the earlier marks has no precise link with the majority of the goods in question and is, therefore, distinctive to that extent. The figurative element (assumed to be the depiction of a cloud) is allusive of the characteristics of the goods and services or their intended purpose, to the extent that icons of a ‘cloud’ nowadays refer to cloud computing, that is, the ability to store and access data and programs via the internet instead of using a computer’s hard drive. Therefore, the figurative element in question is weak for some of the goods covered by earlier German trade mark No 302 009 068 273 in Class 9, such as computer programs (downloadable), computer software (recorded).

Account is taken of the fact that when signs consist of both verbal and figurative components, as in the case of the earlier marks, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37). Consequently, it is considered that the verbal element ‘LEONARDO’ will have a greater impact on the overall impression produced by the earlier marks.

The contested sign is a figurative mark. It is composed of a device which is likely to be perceived as a stylised cloud (at least by the part of the public on which the present examination is focused), placed against a rectangular background. Since this element has no clear connection with the goods and services at issue, it is considered distinctive.

Neither of the signs has any element that could be considered clearly more dominant (eye-catching) than other elements.

Visually, the figurative elements in the signs demonstrate some similarities to the extent that both include a rounded cloud-like shape, placed against a quadrilateral-shaped background. However, a coincidence in features, which are merely generic to clouds (e.g. the curvy line outlining the cloud device), cannot be given much weight. The only similarities between the clouds in the signs are limited to the fact that they both have three rounded protuberances and they are placed against a quadrilateral-shaped background. However, while the depiction of the cloud in the earlier marks is asymmetric and inclined to the right, the cloud in the contested mark appears more regular (symmetric), with a straight bottom line. The only peculiarity being the right bottom corner, which is pointed instead of rounded. The irregular shape of the cloud in the earlier marks differs from the style of the cloud in the contested sign, which is somewhat more like the standard depictions used for clouds, for example, in trade (e.g. icons of cloud referring to cloud computing). These different styles, which will easily be identified by consumers, provide the signs with numerous differences in their shapes and proportions (e.g. the positions, shapes and proportion of the rounded protuberances, the inclination of the cloud in the earlier marks or the degree of symmetry of the cloud shapes).

Moreover, the background also differs. In the earlier marks the background has a square-like shape with four rounded corners, while in the contested mark the background is a rectangle.

The signs further differ in the earlier marks’ verbal element ‘LEONARDO’, which is distinctive and plays an important role in the overall impression, as seen above, whereas the contested sign is purely figurative. Therefore, the signs demonstrate a distinct structure and overall layout.

Therefore, the signs are, at best, visually similar to a low degree on account of some coincidences in the arrangement of the cloud devices against a quadrilateral-shaped background in both signs.

From an aural point of view, purely figurative signs are not subject to a phonetic assessment. As one of the signs is purely figurative, it is not possible to compare them aurally.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Insofar as one of the possible perceptions of the earlier marks is that they contain a depiction of a cloud, the signs share an analogous semantic content. However, there is an additional meaningful and distinctive element ‘LEONARDO’ in the earlier marks, which is not shared by the contested sign. Furthermore, the perception of the cloud in each mark differs to the extent that such depiction is more fanciful in the earlier marks and somewhat more similar to the standard depiction of a cloud in the contested sign. Consequently, insofar as the signs merely share the idea of a ‘depiction of a cloud’, they are conceptually similar only to a low degree (18/02/2013, R 1671/2011‑2, DEVICE OF AN ELK (FIG. MARK) / DEVICE OF AN ELK (FIG. MARK) et al., § 41; 14/06/2017, R 1941/2016‑2, DEVICE OF A SWALLOW IN A CIRCLE (fig.) / DEVICE OF A COLIBRI (fig.), § 46).

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 marks

The distinctiveness of the earlier marks 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 marks are particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. In the present case, the earlier trade marks as a whole have no meaning for the majority of the goods in question from the perspective of the public in the relevant territory, despite the presence of a weak element for some of the goods covered by earlier German trade mark No 302 009 068 273.

e) Global assessment, other arguments and conclusion

A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered.

The Court of Justice has held that a conceptual similarity between signs with analogous semantic content may give rise to a likelihood of confusion where the earlier mark is particularly distinctive (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 24 and 25).

However, in the present case, although the opponent submitted evidence to demonstrate genuine use of its marks, it did not explicitly claim that the earlier trade marks’ distinctiveness is enhanced.

The goods and services have been assumed to be identical. The signs are visually and conceptually similar only to a low degree, without this finding being altered by any phonetic impression. This degree of similarity is based on the recognition by the relevant consumers of a cloud device in each mark, their depictions showing relevant visual differences. Moreover, consumers are more likely to pay more attention to the verbal element ‘LEONARDO’ of the earlier marks, which will be the primary identifier of that mark. This is because consumers will more easily refer to the signs in question by their verbal element than by describing their figurative element.

Bearing in mind the foregoing, the Opposition Division finds that the noticeable visual and conceptual differences are sufficient to prevent consumers from considering these goods and services as deriving from the same (or economically linked) traders. Therefore, it is concluded that there can be no likelihood of confusion within the meaning of Article 8(1)(b) EUTMR, even if the goods and services at issue were identical and the public’s degree of attention average.

These visual and conceptual dissimilarities are considered to be noticeable, a fortiori, by consumers who will have a high degree of attention. The conceptual link between the two marks is not strong enough to counteract the substantial visual and conceptual differences between them. Therefore, it is concluded that there can be no likelihood of confusion within the meaning of Article 8(1)(b) EUTMR for the goods and services in question, even if they were identical.

In light of the foregoing, even assuming that the goods and services are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

This absence of a likelihood of confusion equally applies to the part of the public that will not identify a cloud in the earlier marks. This is because, for this part of the public, the similarities between the signs are even less pronounced.

Given that the opposition is not well founded under Article 8(1) EUTMR, it is unnecessary to examine the evidence of use filed by the opponent.

The opponent has also based its opposition on the international registration designating Benelux, Bulgaria, the Czech Republic, Denmark, Estonia, Ireland, Greece, Spain, Croatia, Hungary, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden and the United Kingdom No 1 063 015 .

Since this mark is identical to the one that has been compared and covers the same or a narrower scope of goods, the outcome cannot be different with respect to goods and services for which the opposition has already been rejected. In particular, the meaning of the verbal element ‘LEONARDO’ will also be grasped in the same way by the relevant public in those territories where the earlier international trade mark is protected. Therefore, no likelihood of confusion exists with respect to those goods and services.

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

Félix ORTUÑO LÓPEZ

Claudia ATTINÀ

Chiara BORACE

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.