OPPOSITION Nо B 3 091 832

 

Voltus GmbH, Loog 7, Bad Schwartau, Germany (opponent), represented by König und Kollegen, Dienerreihe 2 (Block W/5. Boden), 20457 Hamburg, Germany (professional representative) 

 

a g a i n s t

 

Huizhou Coolway Technology Co., Ltd., 14th Floor, unit 1, Rui He Jia Yuan Commercial Square, No.1, Yanda 1st Road, He Nan An Area, Huizhou City, Guangdong, China (applicant), represented by Sakellarides Law Offices, Adrianou Str. 70, 10556 Athens, Greece (professional representative).

On 27/07/2021, the Opposition Division takes the following

 

 

DECISION:

  

1.	Opposition No B 3 091 832 is rejected in its entirety.

 

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

 

REASONS

 

On 13/08/2019, the opponent filed an opposition against all the goods of European Union trade mark application No 18 074 707 (figurative mark), namely against all the goods in Class 9. The opposition is based on European Union trade mark registration No 16 758 071 (figurative mark). The opponent invoked Article 8(1)(a) and 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.

PRELIMINARY REMARKS

On 08/03/2021 (after the current opposition was filed), the specification of the goods and services covered by the EUTM invoked as the basis of the current opposition was limited at the opponent’s request and recorded by the Office.

The following comparison of the goods and services will be carried out on the basis of the goods and services for which the earlier mark is registered at the time of taking the present decision.

a) The goods and services

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

Class 7: Dispensing machines; Current generators; Sweeping, cleaning, washing and laundering machines; Agricultural, earthmoving; Motors and engines, drives and general machine parts; compressors and fans; Laboratory robots; Robots for welding; Transportation robots; Moving and handling equipment; none of the aforesaid relating to pipe couplings, pipe fittings, pipe joining, or fire protection, fire suppression, or fire sprinkler systems.

Class 9: Scientific research and laboratory apparatus, educational apparatus and simulators; Apparatus, instruments and cables for electricity; Recorded content; Scientific and laboratory devices for treatment using electricity; Information technology and audiovisual equipment; Magnets, magnetizers and demagnetizers; Measuring, detecting and monitoring instruments, indicators and controllers; Navigation, guidance, tracking, targeting and map making devices; Optical devices, enhancers and correctors; Safety, security, protection and signalling devices; Diving equipment; none of the aforesaid relating to pipe couplings, pipe fittings, pipe joining, or fire protection, fire suppression, or fire sprinkler systems.

Class 37: Extraction of natural resources; Building, construction and demolition; Extermination, disinfection and pest control; Rental of tools, plant and equipment for construction and demolition; Vehicle service, repair, maintenance and refuelling; Building maintenance and repair; Alarm, lock and safe installation, maintenance and repair; Lift and elevator installation, maintenance and repair; Computer hardware and telecommunication apparatus installation, maintenance and repair; Furniture maintenance and repair; Re-inking and refilling of toner cartridges; Cleaning and care of fabric, textile, leather, fur and goods made thereof; Clock and watch repair; Glazing, installation, maintenance and repair of glass, windows and blinds; Rental of cleaning and washing machines and equipment; Tyre maintenance and repair; Scaffolding dismantling; Road sealing and stripping; Interior sealing and caulking services; Waterproofing of basements; Waste removal [cleaning]; Drain cleaning services; Septic tank pumping and cleaning; Lubrication services; Road stripping; Application of bridge expansion joints; Application of slip-resistant safety floor sealers; Application of underlayments; Application of waterproof linings; Pavement striping; Erection of signs; Signs (Painting or repair of -); Plant refurbishment; Painting of metal surfaces to prevent corrosion; Coating of drains; Coating of sewers; Floor coating services; Coating of brickwork; Asbestos extraction; Spindle reconditioning; Installation of temporary structures for business exhibitions; Installation of temporary structures for trade fairs; Erection of temporary constructions for outdoor events; Installation of stands for exhibitions; Installation of stands for trade fairs; Installation of tents; Installation of temporary barriers; Installation of temporary fences; Coating [painting] services; Application of coatings to tunnels; Application of coatings for the repair of walls; Application of screeds; Application of rendering to tunnels; Application of waterproof coatings for roofs; Application of surface coatings; Application of protective paint to wood; Recharging of batteries and accumulators; Sign posting services; Erection of display boards; Erection of signboards; Application of anti-graffiti coatings; Application of coatings to swimming pools; Application of protective coatings to cavity surfaces; Application of protective coatings to tank surfaces; Application of rendering to swimming pools; Excavating services for verifying the location of utility lines; Advisory services relating to the installation of engines; Advisory services relating to the installation of solid fuel heating systems; Advisory services relating to the installation of power plants; Advisory services relating to the installation of pumps; Advisory services relating to the repair of civil engineering structures; Advisory services relating to the repair of plumbing; Advice relating to preventing blockages in grease traps; Advice relating to preventing blockages in septic tanks; Advice relating to preventing blockages in plumbing lines; Advisory services relating to the maintenance of plumbing; Advisory services relating to the reinstatement of trenches; Advisory services relating to surfacing projects; Advisory services relating to the installation of fixings; Advisory services relating to the installation of generators; Advisory services relating to the installation of gearboxes; Advisory services relating to the installation of plumbing; Information services relating to installation of security systems; Repair information; Replacement of batteries; Replacement of brakes; Replacement of lights; Masonry; Painting, interior and exterior; Glazier services; Construction of wave energy power plants; Apartment refurbishment services; Advisory services relating to the repair of environmental control systems; Advisory services relating to the maintenance and repair of mechanical and electrical equipment; Advisory services relating to the maintenance of slip gauges; Advisory services relating to the maintenance of environmental control systems; Advisory services relating to the installation of lighting apparatus; Advisory services relating to the installation of hydraulic equipment; Advisory services relating to the installation of audiovisual equipment; Advisory services relating to the installation of building automation equipment; Advisory services relating to the installation of passenger lifts; Providing information relating to the repair or maintenance of firearms; Providing information relating to the repair or maintenance of sewing machines; Providing information relating to the repair or maintenance of electric motors; Providing information relating to the repair and maintenance of spectacles; Providing information relating to the repair or maintenance of power-driven floor cleaning machines; Providing information relating to the repair or maintenance of medical machines and apparatus; Providing information relating to the repair or maintenance of industrial washing machines; Providing information relating to the repair or maintenance of chemical processing machines and apparatus; Providing information relating to the repair or maintenance of freezing machines and apparatus; Providing information relating to the repair or maintenance of textile machines and apparatus; Providing information relating to the repair or maintenance of laboratory apparatus and instruments; Providing information relating to the repair or maintenance of boilers; Providing information relating to the repair or maintenance of cinematographic machines and apparatus; Providing information relating to the repair or maintenance of water pollution control equipment; Providing information relating to the repair or maintenance of cooking pots and pans; Providing information relating to the rental of construction machines and apparatus; Providing information relating to the repair or maintenance of pumps; Providing information relating to the repair of fishing tackle; Providing information relating to the repair or maintenance of painting machines and apparatus; Providing information relating to the repair or maintenance of bicycle parking apparatus; Providing information relating to the repair or maintenance of burners; Providing information relating to the repair or maintenance of storage tanks; Advisory services relating to the maintenance of buildings; Advisory services relating to the renovation of property; Advisory services relating to the maintenance of fixings; Providing information relating to the sharpening of scissors and kitchen knives; Providing information relating to furniture restoration; Providing information relating to the repair or maintenance of office machines and apparatus; Providing information relating to the repair or maintenance of signboards; Providing information relating to the repair or maintenance of amusement machines and apparatus; Providing information relating to the repair or maintenance of agricultural machines and implements; Providing information relating to the repair or maintenance of mechanical parking systems; Providing information relating to the repair or maintenance of nuclear power plants; Providing information relating to the repair of billiard equipment; Providing information relating to the repair of spectacles; Providing information relating to umbrella repair; Providing information relating to the repair of game machines and apparatus; Providing information relating to the repair of toys or dolls; Providing information relating to the repair of sports equipment; Providing information relating to the repair or maintenance of bathtubs; Providing information relating to the repair or maintenance of chemical plants; Providing information relating to the repair or maintenance of fishing machines and instruments; Providing information relating to the repair or maintenance of fishing tackle; Providing information relating to the repair or maintenance of industrial furnaces; Providing information relating to the repair or maintenance of power generators; Providing information relating to the repair or maintenance of tobacco processing machines; Providing information relating to the repair or maintenance of gasoline station equipment; Providing information relating to the repair or maintenance of water purifying apparatus; Providing information relating to the repair or maintenance of electric lighting apparatus; Providing information relating to the repair or maintenance of non-electric cooking apparatus and installations; Providing information relating to the repair or maintenance of automobiles; Providing information relating to the rental of mops; Providing information relating to the repair or maintenance of machines and apparatus for manufacturing glassware; Providing information relating to the repair or maintenance of construction machines and apparatus; Providing information relating to the repair or maintenance of semiconductor manufacturing machines and systems; Providing information relating to the repair or maintenance of plastic processing machines and apparatus; Providing information relating to the repair or maintenance of metalworking machines and tools; Providing information relating to the repair or maintenance of musical instruments; Providing information relating to the repair or maintenance of industrial dishwashing machines; Providing information relating to the repair or maintenance of optical machines and instruments; Providing information relating to the repair or maintenance of photographic machines and apparatus; Providing information relating to the repair of bags or pouches; Providing information relating to the repair or maintenance of consumer electrical appliances; Providing information relating to the repair or maintenance of vehicle washing installations; Providing information relating to the repair or maintenance of waste crushing machines and apparatus; Providing information relating to the repair or maintenance of vending machines; Providing information relating to the repair or maintenance of packing or wrapping machines and apparatus; Providing information relating to the repair or maintenance of waste compacting machines and apparatus; Coating of concrete; Coating of conduits; Coating services for the repair of industrial engineering plant; Coating services for the repair of marine engineering plant; Coating services for the maintenance of industrial engineering plant; Coating services for the maintenance of marine engineering plant; Concrete repairs; Concrete renovation; Self-service laundries; Drilling; Provision of computerised information relating to the maintenance of carpets; Roofing installation; Resurfacing of roofs; Ceiling installation; Decorating of buildings; Decorative painting services; Asbestos removal; Diagnostic maintenance services for photocopiers; Cobbler's services [repair]; Soil erosion control services; Pavement marking services; Pressure grouting services; Installation of sewer liners; Installation of lighting systems; Fitting of floor coverings; Installation of ground anchors; Installation of foundry products; Installation of grills; Services for the installation of cavity wall ties; Installation of interior partitions for buildings; Installation of cavity wall insulation; Installation of cooking appliances; Installation of furniture for shops; Installation of stands for conferences; Installation of sun roofs; Installing drywall panels; Installation of doors; Installation of windscreens; Installation of draught proofing for sash windows; Installation of false floors; Installation of mezzanine floors; Installation of internal partitioning; Installation of commercial cooking apparatus; Installation of oil production apparatus; Services for the fitting of kitchens; Trash collection [refuse clean-up]; Setting of gems [repair]; Setting of saw blades; Oil burner regulation and repair; Regulation of oil burners; Electrical wiring services; Electrical installation services; Airplane de-icing services; Spillage clearance; Removal of graffiti; Emptying [cleaning] services; Interference suppression in electrical apparatus; Interference suppression services for electrical apparatus; Rebuilding of clutches; Renovation of electrical wiring; Restoration of bathroom fittings; Renovation, repair and maintenance of electrical wiring; Erection of crowd control barriers; Installation of roof timbering; Erection of climbing formworks; Security fencing (Erection of -); Erection of reinforced concrete structures utilising sliding and climbing formworks; Erection of grandstands; Fence erection services; Erection of sliding formworks; Erection of curtain walling; Erection of temporary seating; Information services relating to maintenance of security systems; Information services relating to the refurbishment of buildings; Information on the maintenance of measuring and test equipment; Chimney sweeping; Damp proofing services; Stain removal; Tinkering; Floor maintenance services; Scaffolding; Buffing and polishing; Pressure washing services; Marine lifting services; Hygienic cleansing [baths]; Hygienic cleansing [pools]; Hygienic cleaning [mobile structures]; Industrial cleaning services; Interior fitting-out of offices; Interior fitting-out of company premises; Interior refurbishment of buildings; Interior renovation of commercial premises; Pipeline construction and maintenance; Antenna installation and repair; Irrigation devices installation and repair; Electric appliance installation and repair; Freezing equipment installation and repair; Furnace installation and repair; Installation and maintenance of irrigation systems; Installation and maintenance of photovoltaic installations; Installation and maintenance of solar thermal installations; Installation, repair and maintenance of steam condensers; Installation, repair and maintenance of boiler tubes; Installation, repair and maintenance of condensing apparatus; Installation, repair and maintenance radiators for motors and engines; Installation, repair and maintenance of cleanroom facilities and equipment; Installation services of working and building platforms; Installation services of building scaffolds; Installation of building scaffolds, working and building platforms; Installation of lighting apparatus; Installation of reactive power compensation apparatus; Installation of lightning conductors; Installation of fire performance coatings; Office equipment installation; Ceiling lining installation; Installation of theft prevention devices; Installation of fixtures and fittings for domestic premises; Installing pet containment systems; Installing fencing; Installation of energy-saving apparatus; Installation of oil refineries; Installation of vehicle simulator units; Installing septic tanks; Installation of plant; Installation of conveyors; Installation of gas supply and distribution apparatus; Installation of audiovisual equipment; Installation of electric light and power systems; Installation of electrical and generating machinery; Installation of electric and electronic equipment in automobiles; Installation of coloured panels in building facias; Installation of building automation equipment; Freezers (Installation of -); Installation of catering equipment; Installation of boilers; Installation of radio frequency communications systems; Installation of hydraulic equipment; Installation of industrial plant; Installation of industrial furnaces; Installation of oil exploration instruments; Installation of instrumentation systems; Installation of insulating materials; Installation of cable television systems; Installing septic fields; Installation of kitchens; Kitchen equipment installation; Installation of kitchen appliances; Installation of kitchen cabinets; Installation of refrigerating apparatus; Installation of storage facilities; Installation of aeronautical engines; Installation of photovoltaic cells and modules; Installation of shelving; Installation of industrial machinery; Installation of integrated radio networks; Installation of pneumatic bulk material handling systems; Installation of rainwater drainage systems; Installation of rainwater collection systems; Installation of rainwater harvesting systems; Installation of rainwater tanks; Installation of radios; Installation of smelting furnaces; Installation of security and safety equipment; Installation of street information placards; Installation of street furniture; Installation of power generating apparatus; Installation of closed circuit television systems; Installation of drying apparatus; Installation of door fittings; Installation of environmental protection systems; Installation of traffic management systems; Installing wallboard; Installation of laundry and kitchen equipment; Installation of tubular linings in passageways; Installation of sanitary apparatus; Installation of solar powered systems; Installation of environmental engineering systems; Installation of fabricated construction units; Installation of basement waterproofing products; Installation of transmission lines; Installation of water softeners; Installation of plumbing systems; Installation of water supply apparatus; Installation of central vacuum cleaning systems; Office machines and equipment installation, maintenance and repair; Machinery installation, maintenance and repair; Installation, maintenance and repair of broadcasting apparatus; Installation services for building scaffolds, working and building platforms; Maintenance and repair services relating to automatic door equipment; Maintenance and repair of ballast lines; Maintenance and repair of aircraft weapons; Maintenance and repair of cargo holds; Maintenance and repair of solid fuel boilers; Maintenance and repair of engines; Maintenance and repair services relating to door closers; Maintenance and repair services relating to automatic barriers; Maintenance and restoration of works of art; Maintenance of aquariums; Office equipment maintenance; Servicing of industrial boilers; Servicing of cranes; Maintenance of cleaning machines; Servicing of conduits; Maintenance of typewriters; Swimming-pool maintenance; Maintenance of roads; Maintenance of internal combustion engines; Servicing of machine tools; Maintenance, servicing and repair of household and kitchen appliances; Repair or maintenance of industrial furnaces; Insulation services; Laying of cables; Re-tinning; Plumbing and glazing services; Conservation and preservation services for works of art; Anti-corrosion treatment; Artificial snow-making services; Varnishing; Varnishing of card materials; Varnishing of board materials; Land irrigation; Reclamation of land; Sign painting services; Painting and varnishing; Repair of machines; Repair of machines; Repair of industrial machinery; Mechanical cleaning of waterways; Installing siding; Installation of fittings for buildings; Installation of felt roofs; Installation of fitted furniture; Furniture installation; Installation of racks; Installation of bolts; Installation of doors and windows; Erection of pre-fabricated buildings; Mechanic services; Assembling [installation] of storage systems; Assembling [installation] of machine plant; Assembling [installation] of shelving; Assembling [installation] of building framework; Installation of motors; Refinishing silver; Re-barrelling; Machinery retrofit and conversion services; Re-blacking of rifles; Re-blacking of guns; Repointing of brickwork; Parquet floor laying; Care and repair of skis; Valeting services relating to household cleaning; Valeting services relating to office cleaning; Oil and gas drilling; Valeting services relating to industrial cleaning; Polishing (cleaning); Concrete polishing; Polishing of jewellery; Pumping septic tanks; Fluid pumping services; Cleaning of drains; Abrasive cleaning of surfaces; Clearing of pipework systems used in the manufacturing industries; Clearing of pipework systems used in the refining industries; Cleaning of water supply plumbing; Cleaning of surgical instruments and equipment; Cleaning by means of sanding (Services for -); Cleaning by water jetting (Services for -); Cleaning by means of scouring (Services for -); Boiler cleaning and repair; Cleaning of drains by high pressure water jetting; Cleaning of exhibition stands; Cleaning of exterior airport runways; Cleansing of baths; Cleaning of ballast lines; Cleaning of building sites; Cleaning of site roads; Cleaning of industrial premises; Cleansing of mobile structures; Cleaning of boilers; Cleaning of monuments; Cleaning of furnishings; Cleaning of electrical motors; Cleaning of floor coverings; Cleaning of property; Cleaning of industrial boilers; Septic tank cleaning; Cleaning of cargo holds; Cleaning of storage containers; Cleaning of machines; Cleaning of stone work; Cleaning of blinds; Cleaning of exterior ships' decks; Tube cleaning services; Swimming pool cleaning services; Cleaning of storage tanks; Cleaning of wall surfaces; Cleaning of water tanks; Cleaning of mobile sanitary facilities; Cleaning of urban areas; Cleaning of public areas; Cleansing of public conveniences; Cleaning services; Renovation of property; Renovation of kitchens; Welding for repair purposes; Repair or maintenance of bathtubs; Repair or maintenance of building equipment; Repair or maintenance of bicycle parking apparatus; Repair or maintenance of conveyors; Repair or maintenance of signboards; Repair or maintenance of chemical plants; Repair or maintenance of electric motors; Repair or maintenance of machines and apparatus for processing beverages; Repair or maintenance of waste crushing machines and apparatus; Repair or maintenance of glassware manufacturing machines and apparatus; Repair or maintenance of loading-unloading machines and apparatus; Repair or maintenance of integrated circuits manufacturing machines and systems; Repair or maintenance of milking machines; Repair or maintenance of measuring machines and instruments; Repair or maintenance of harvesting machines and implements; Repair or maintenance of machines and apparatus for paper-working; Repair or maintenance of machines and apparatus for papermaking; Repair or maintenance of plant fiber processing machines and implements; Repair or maintenance of testing machines and instruments; Repair or maintenance of diving machines and apparatus; Repair or maintenance of vending machines; Repair or maintenance of gas water heaters; Repair or maintenance of agricultural machines and implements; Repair or maintenance of construction machines and apparatus; Repair or maintenance of mining machines and apparatus; Repair or maintenance of cultivating machines and implements; Repair or maintenance of printing or bookbinding machines and apparatus; Repair or maintenance of fodder mixers; Repair or maintenance of fodder mills; Repair or maintenance of fodder presses; Repair or maintenance of freezing machines and apparatus; Repair or maintenance of semiconductor manufacturing machines and systems; Repair or maintenance of machines and apparatus for woodworking; Repair or maintenance of cooking apparatus for industrial purposes; Repair or maintenance of cooking pots and pans; Repair or maintenance of rubber-goods manufacturing machines and apparatus; Repair or maintenance of sericultural machines and implements; Repair or maintenance of shoe making machines and instruments; Repair or maintenance of sewing machines; Pump repair or maintenance; Repair or maintenance of firearms; Repair or maintenance of power generators; Repair or maintenance of textile machines and apparatus; Repair or maintenance of industrial dish washing machines; Repair or maintenance of industrial washing machines; Repair or maintenance of cinematographic machines and apparatus; Repair or maintenance of medical machines and apparatus; Repair or maintenance of optical machines and instruments; Repair or maintenance of fishing tackle; Repair or maintenance of egg incubators; Repair or maintenance of bookbinding apparatus and machines; Repair or maintenance of office machines and apparatus; Repair or maintenance of vehicle washing installation; Repair or maintenance of fishing machines and instruments; Repair or maintenance of photographic machines and apparatus; Repair or maintenance of fodder cutters; Repair or maintenance of machines and apparatus for lumbering; Repair or maintenance of nuclear power plants; Repair or maintenance of cooking apparatus; Repair or maintenance of machines and apparatus for processing food or beverages; Repair or maintenance of power distribution or control machines and apparatus; Repair or maintenance of machines and apparatus for use in barbers' shops; Repair or maintenance of machines and apparatus for pulp-making; Repair or maintenance of musical instruments; Repair or maintenance of machines and apparatus for processing foods; Repair or maintenance of overhead projectors; Repair or maintenance of tobacco processing machines; Maintenance and repair of storage tanks; Repair or maintenance of vessels; Repair or maintenance of electric cooking apparatus and installations; Repair or maintenance of electronic machines and apparatus; Repair or maintenance of power-driven floor cleaning machines; Repair or maintenance of non-electric cooking apparatus and installations; Repair or maintenance of machines and apparatus for veneer making; Repair or maintenance of machines and apparatus for plywood making; Repair or maintenance of machines and apparatus for use in beauty salons; Repair and maintenance of building scaffolds, working and building platforms; Repair and maintenance of spectacles; Maintenance and repair of camping equipment; Maintenance and repair of earth moving equipment; Maintenance and repair of earth moving machines; Maintenance and repair of sporting equipment; Maintenance and repair of transport containers; Repair or maintenance of electric lighting apparatus; Book repair and restoration; Repair and restoration of furniture; Maintenance and repair of electronic apparatus; Repair and maintenance of feed or booster pumps; Repair or maintenance of water pollution control equipment; Repair or maintenance of plastic processing machines and apparatus; Repair or maintenance of laboratory apparatus and instruments; Repair or maintenance of painting machines and apparatus; Repair or maintenance of metalworking machines and tools; Repair or maintenance of gasoline station equipment; Repair or maintenance of amusement machines and apparatus; Repair or maintenance of packing or wrapping machines and apparatus; Repair or maintenance of video frequency machines and apparatus; Repair or maintenance of chemical processing machines and apparatus; Repair or maintenance of waste compacting machines and apparatus; Maintenance and repair of axles and parts thereof; Maintenance and repair of automatic transmissions; Maintenance and repair of mining equipment; Film projector repair and maintenance; Maintenance and repair of garden tools; Maintenance and repair of gears; Maintenance and repair of gymnastic and sporting articles; Maintenance and repair of manual transmissions; Maintenance and repair of hearing aids for the deaf; Maintenance and repair of compressors; Maintenance and repair of refrigerating apparatus; Maintenance and repair of cooling appliances and installations; Maintenance and repair of multimedia apparatus; Pump repair and maintenance; Maintenance and repair of toys; Maintenance and repair of sports and fitness equipment; Maintenance and repair of road making equipment; Maintenance and repair of road making machines; Maintenance and repair of electricity generators; Maintenance and repair of drying apparatus; Maintenance and repair of wave energy power plants; Repair or maintenance of consumer electric appliances; Maintenance and repair of electronic installations; Maintenance and repair of photographic apparatus; Repair or maintenance of printing machines; Maintenance and repair of energy generating installations; Maintenance and repair of gas and electricity installations; Maintenance and repair of laser measuring apparatus; Maintenance and repair of presses for processing metals; Maintenance and repair of vacuum pumps; Maintenance and repair of wind power plants; Maintenance and repair of surgical instruments and apparatus; Maintenance and repair of electronic display panels; Maintenance and repair of agricultural machines; Repair or maintenance of mechanical parking systems; Maintenance and repair of medical instruments, apparatus and equipment; Repair and restoration of household articles; Repair of fishing tackle; Repair of installations for use in metal production, metal processing and metal working; Repair of structures for use in high temperature conditions; Repair of intake air filters for machinery; Repair of intake air filters and parts thereof; Repair of bathtubs; Repair of construction machines and equipment; Repair of billiard equipment; Repair of biogas plants and machines; Repair of fire damage; Repair of automatic livestock feeders; Repair services for medical apparatus; Office machine repair; Repair of office machines and apparatus; Repair of steam generating apparatus; Repair of pressurised containers; Repair of compressed air machines; Repair of ironmongery; Repair of electrical equipment; Repair of electrical equipment and electrotechnical installations; Repair of energy production plants and machines; Repair of energy supply installations; Repair of axles for vehicles; Repair of binoculars; Television repair; Repair of filters for machines, motors or engines; Repair of aerial navigation equipment; Photographic apparatus repair; Repair of photocopiers; Repair of feeding troughs; Repair of gas cylinders; Repair of gas supply systems; Repair of surgical apparatus; Repair services for domestic electrical appliances; Repair of power lines; Repair of electronic apparatus; Repair of electronic cash register systems; Emergency servicing of gas supply apparatus; Freezers (Repair of -); Repair of water pollution control equipment; Repair services for electronic business equipment; Repair of power generating apparatus and installations; Scaffolding repair; Repair of household and kitchen appliances; Boiler repair services; Repair of hollowware; Repair of industrial waste treatment machines; Repair of industrial furnaces; Camera repair; Repair of canalization systems; Services for the repair of canals; Repair of cooking apparatus; Suitcase repair; Refrigerator repair; Repair of shopfitments; Repair of lighting apparatus; Repair of air filtering apparatus; Repair of air filters; Repair of air filters and parts thereof; Repair of machines for treating organic waste; Repair of axles for machines; Repair of metalworking machines and apparatus; Repair of milk filters; Repair of parts of engines; Repair of musical instruments; Pump repair; Umbrella repair; Services for the repair of conduits; Repair of radio or television sets; Radio repair; Sign repair; Jewelry repair; Remounting of jewellery; Repair of spectacles; Repair of sails; Parasol repair; Repair of sunglasses; Repair of game machines and apparatus; Repair services for toys; Repair of toys or dolls; Repair of sports equipment; Repair of medical machines and apparatus; Repair of non-electric cooking heaters; Repair of optical instruments; Repair of personal ornaments; Repair of sanitary installations; Vacuum cleaner repair; Stereo system repair; Emergency servicing of apparatus for supplying electricity; Repair of bags; Repair of bags or pouches; Repair of animal waste treatment systems; Repair of toilet bowls with integrated bidet water jets; Repair of transport containers; Repair of drying apparatus; Repair of turbines; Repair of water supply apparatus; Repair of water supply installations; Repair of tools; Services for the repair of heat exchangers; Repair of fences; Repair services for electric generators and wind turbines; Repair services relating to engines; Repairing construction works; Restoration of works of art; Restoration of musical instruments; Rust removing; Rustproofing; Routine servicing of refrigerating apparatus; Renovating services relating to discharge conduits; Restoration of baths; Restoration of architectural works; Restoration of retail premises; Renovation of industrial boilers; Renovation of machinery; Renovating services relating to conduits for water supply; Renovation of nuclear plant; Remedial services for floor coverings; Remedial services for stair coverings; Remedial services for wall coverings; Re-sharpening of scissors; Sign maintenance; Sharpening services; Knife sharpening; Floor sanding; Re-sharpening of skates; Engine lubrication; Snow removal services; Drill bit sharpening; Sharpening of kitchen knives; Lawn mower blade sharpening; Sharpening of lawnmowers; Sharpening of scissors and kitchen knives; Ski tuning services; Spray painting; Spray painting of metals; Sterilisation of surgeon's instruments; Piano-tuning; Musical instrument tuning services; Abrasive cleaning of metallic surfaces; Underwater abrasive cleaning of metallic surfaces; Abrasive cleaning of non-metallic surfaces; Underwater abrasive cleaning of non-metallic surfaces; Street sweeping services; Marking of roads; Street cleaning; Ceiling texturing; Texturing (Ceiling or wall -); Wall texturing; Paper hanging; Crime scene clean-up services; Carpet and rug cleaning; Pipeline laying; Carpet-laying; Joinery [repair]; Drywall contractor services; Marine dry docking services; Reconditioning of industrial machinery; Overhaul of machines; Spindle rebuilding; Reconditioning of vacuum pumps and parts thereof; Reconditioning machines, motors and engines that have been worn or partially destroyed; Reconditioning motors that have been worn or partially destroyed; Rebuilding and reconditioning of motors; Conversion of shop premises; Application of sheathing to optical fibres; Application of sheathing to cables; Maintenance of property; Underwater dredging; Underwater repair; Floor layering; Installation of gas and water pipelines; Installing wood flooring; Laying of land cables; Mains laying; Laying floor tile; Tile laying, bricklaying or block laying; Laying of sea cables; Rental and maintenance of work platforms; Rental of dishwashers for household purposes; Rental of dishwashers for industrial purposes; Rental of dish drying machines; Rental of industrial dish drying machines; Riveting; Overhaul of engines; Rebuilding machines that have been worn or partially destroyed; Rebuilding engines that have been worn or partially destroyed; Oil well casing, tubing, and drill pipe installation; Machinery maintenance services; Servicing of nuclear plant; Burner maintenance and repair; Maintaining and repair of roof guttering; Maintenance and repair of flooring; Maintenance and repair of gas turbines; Servicing and repair of aerial work platforms; Servicing and repair of lifting apparatus; Repair or maintenance of cooking apparatus and installations; Maintenance and repair of machines and machine tools for treating and processing metals; Maintaining and repair of rain channels; Repair or maintenance of water purifying apparatus; Maintenance and repair of systems incorporating hoses which convey fluid; Servicing and repair of mechanical access platforms; Maintenance of medical apparatus and instruments; Maintenance of automata; Maintenance of catering equipment; Maintenance of dictation equipment; Maintenance of pneumatic hand tools; Maintenance of consumer electric appliances; Maintenance, servicing and repair of power generating apparatus and installations; Maintenance, servicing and repair of weapon systems; Maintenance, repair and reconditioning of photovoltaic apparatus and installations; Furniture restoration, repair and maintenance; Servicing of manufacturing machines and apparatus; Maintenance of power generating apparatus and installations; Maintenance of water pollution control equipment; Maintenance of beverage processing apparatus; Servicing of mains services; Maintenance of domestic refrigeration; Maintaining septic systems; Tube maintenance services; Maintenance of welding machines and equipment; Provision of maintenance services for sports establishments; Servicing of power generating apparatus and installations; Maintenance of water purifying apparatus; Maintenance of electronic apparatus; Maintenance of industrial machinery; Maintenance of commercial electrical systems; Maintenance of medical equipment; Maintenance of non-electric cooking heaters; Civil engineering maintenance involving the use of pressurised jets of abrasive-containing water; Civil engineering maintainance involving the use of hydromechanical cutting equipment; Civil engineering maintenance involving the use of water-jet cutting equipment; Washing of fish boxes; Motor vehicle wash; Washing of knitwear; Fire extinguisher recharging services; Computer and telephone battery recharge services; Recharging of batteries; Carpentry services; Providing information relating to floor polishing services; Providing information relating to the repair or maintenance of machines and apparatus for processing food or beverages; Providing information relating to the repair and maintenance of furnaces; Providing information relating to street cleaning services; Providing information relating to storage tank cleaning services; Providing information relating to septic tank cleaning services; Providing information relating to the installation of machinery; Providing information relating to the repair or maintenance of cooking apparatus and installations; Providing information relating to the repair or maintenance of machines and systems for manufacturing integrated circuits; Providing information relating to the repair or maintenance of machines and instruments for making shoes; Providing information relating to the repair of tatami mats; Provision of information, advice and consultancy relating to cleaning; Providing information relating to the repair or maintenance of sporting equipment; Providing information relating to the repair or maintenance of bookbinding apparatus and machines; Providing information relating to the repair or maintenance of printing machines; Providing information relating to the repair or maintenance of cooking apparatus; Providing information relating to the installation of electrical apparatus; Providing information relating to the repair or maintenance of electric cooking apparatus and installations.

Class 38: Telecommunication services.

The contested goods are the following:

Class 9: Microphones; Horns for loudspeakers; Headphones; Portable media players; wireless headsets for smartphones; Portable radios; Headphones for use with computers; Car audio speaker; Car audio equipment; Cabinets for loudspeakers; MP3 players; MP4 players.

The opponent stated in its initial observations that it specialises in goods and services related to ‘smart homes’. The applicant claims that, on the basis of said specialisation, the contested goods must be found dissimilar to the opponent´s goods and services, and provided numerous screenshots from the opponent’s website in this regard.

It must be borne in mind that in order to assess the similarity of the good in question within the meaning of Article 8(1)(b) EUTMR, and in the absence of the obligation to prove the use of the earlier mark, account must be taken of the category of goods and services protected by the conflicting marks and not of the goods and services actually marketed under those trade marks (06/06/2021, T-487/08, Kremezin, EU:T:2010:237, §º71; 17/01/2012, T-249/10, Kico, EU:T:2012:7, §º23; 31/01/2013, T-66/11, Babilu, EU:T:2013:48, §º45; 21/01/2016, T-846/14, SPOKeY, EU:T:2016:24, §º27). Consequently, the applicant’s arguments have no bearing on the assessment of the following comparison between the contested goods and opponent´s goods and services.

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 microphones; horns for loudspeakers; headphones; portable media players; wireless headsets for smartphones; portable radios; headphones for use with computers; car audio speaker; car audio equipment; MP3 players; MP4 players are included in the broader category of, or overlap with, the opponent’s audiovisual equipment. Therefore, they are identical.

The contested cabinets for loudspeakers are complementary to the opponent’s audiovisual equipment. These goods target the same public, can be produced by the same manufacturers and distributed through the same commercial channels. Thus, they are similar.

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

 

The degree of attention in the case at hand may vary from average to high, depending on the price and specialised nature of the goods purchased.

c) The signs

 

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 earlier sign is comprised of a pronounced, black letter ‘V’ in a minimally stylised and rather standard typeface, together with an orange figurative element. Both the stem (left-hand side) and the arm (right-hand side) of the letter ‘V’ extend upwards and outwards symmetrically at approximately 65-degree angles from a flat-based vertex. The letter ‘V’ of the opponent’s mark has no meaning with respect to the relevant goods and is, therefore, distinctive to an average degree.

The orange figurative element in the opponent’s mark appears behind the arm of the letter ‘V’ and is configured along the same baseline as the letter (adjacent to its flat base), from which the coloured figurative element protrudes horizontally. This orange stroke-like element reproduces the degree of inclination and the form of the arm of the letter ‘V’, although it extends noticeably above the cap-line (the upper limit) of said letter. In the overall impression of the earlier mark, this orange device will be either seen as an integral part of the letter ‘V’ or as a simple geometrical background shape which will barely be seen as an indicator of commercial origin. The earlier sign has no element that could be considered clearly more dominant than other elements.

The contested sign corresponds to a bold, black, abstract shape, formed by a straight vertical line, from the top of which a much shorter horizontal line with a slanted edge extends rightwards towards the centre of the sign. The black figurative element continues upwards from the base of the shape, ends in line with the horizontal element of the mark and presents a marked inclination (of approximately 35 to 40 degrees) to the right. The striking inclination of the contested sign is further highlighted by the additional black line which runs parallel to the right-hand side of the sign, where only a narrow gap or margin separates the two.

As the contested sign is comprised of a single, abstract, figurative element, there are no parts of this sign which can be held to dominate its overall impression. The highly stylised figurative element comprising the contested sign fails to convey any meaning and bears no relationship to the goods applied for, rendering it is distinctive to an average degree.

The Opposition Division does not share the opponent’s view that the contested sign would be perceived by the public as a stylised depiction of the letter ‘V’. The sign’s specific stylisation and characteristics preclude the possibility that even a non-negligible part of the relevant public would – immediately and without any mental effort – clearly and indisputably perceive the sign in accordance with the opponent’s claims. In order for the public to potentially perceive the contested sign as such (remote though that possibility is), they would have to first undertake an in-depth analysis of the contested mark, which consumers do not tend to perform (03/10/2016, R 177/2016-4, / , § 10) and would nonetheless need to rely on a high level of imagination in order to perceive said stylised letter in the abstract device corresponding to the contested mark, especially given that the contested sign is devoid of any verbal elements which could suggest said letter to the public (19/05/2020, R 2381/2019-4,  /  , § 23.

The findings set out above as to the lack of dominant elements and the degree of distinctive character of the contested sign hold true even if the public were to see it as a stylised letter ‘V’.

Visually, the only faint similarity between the figurative elements of both signs is their flat base (as if sitting on an imaginary base-line). However, the respective visual impression created by said flat base differs in both signs, owing to the marks’ different stylisation, respective use or lack of colour, their positioning and inclination, in the proportions of the linear aspects comprising each sign (where the base of the contested sign is considerably wider in appearance when compared to the earlier sign) and due to the gap in the base of the contested sign (which is not present in the earlier sign).

The signs at issue further differ in all their other aspects and stylisation. The presence of colour in the earlier sign has no counterpart in the contested sign, which further serves to distance the signs visually (26/03/2021, R 551/2018-G, / , §58).

Moreover, the fact that the bright orange figurative element in the opponent’s sign extends above the cap-line of the letter ‘V’, emphasises the overall appearance of the sign as extending upwards or vertically. The contested sign, on the other hand, has more of a squat appearance, as its figurative element appears contained within the same imaginary cap-line at the top of the sign. The overall horizontally-extended impression of the sign applied for is accentuated by its pronounced rightwards-tilted appearance or inclination to the right.

Even for the public who would allegedly perceive the letter ‘V’ in the contested sign, its graphical representation differs significantly from that of the latter ‘V’ in the earlier mark (13/07/2009, R 1170/2008-2,  /  §35).

Therefore, the signs are at most visually similar to a low degree.

 

With regard to the aural comparison, it must be borne in mind that the public does not tend to analyse signs and where signs combine figurative and verbal elements or letters, the public will more easily refer to such signs by their verbal element, rather than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37).

Thus, as the public will immediately and effortlessly perceive the earlier mark as a stylised depiction of the letter ‘V’, they will refer to and pronounce it as such, irrespective of the different pronunciation rules in different parts of the relevant territory.

Conversely, as the contested sign is purely figurative in nature, it will not normally be pronounced by the public (07/10/2021, T-424/10, Eléphants dans un rectangle, § 45; and 26/03/2021, R 551/2018-G, / , § 59). As the contested sign is not subject to a phonetic assessment, it is not possible to compare the signs aurally.

For the sake of completeness, in the unlikely event that the relevant public were to perceive the contested sign as a stylised letter ‘V’, the signs would be aurally identical.

Conceptually, as the relevant public will perceive the earlier sign as comprised of the letter ‘V’, said sign evokes the concept of this letter.

Conversely, the abstract figurative sign corresponding to the contested mark is devoid of any clear and immediately perceptible meaning for the relevant public. Since one of the signs will not be associated with or convey any meaning, the signs are not conceptually similar.

 

For the sake of completeness, in the unlikely event that the relevant public would perceive the contested sign a stylised letter ‘V’, the signs would be conceptually identical.

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 with respect to the relevant goods from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) Global assessment, other arguments and conclusion

The appreciation of a likelihood of confusion on the part of the public 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).

The relevant public is both the public at large and the professional public, whose degree of attention will vary from average to higher than average. The goods have been found identical and similar. The earlier mark is endowed with an average degree of inherent distinctiveness, which affords it a normal scope of protection.

Consumers are capable of perceiving differences between the stylisation of signs and the key issue in the case at hand is the overall impression they create. The signs have been found at most visually similar to a low degree, owing to their clear differences, as outlined above under section c) of this decision. The Opposition Division maintains that the relevant public will perceive the contested sign as a meaningless, purely figurative mark, such that the signs under comparison are conceptually dissimilar and cannot be compared aurally. Even without undertaking a particularly meticulous and detailed examination of the signs, it is clear that they are immediately distinguishable (20/07/2017, T- 521/15, vs. , § 49).

The same conclusion must be reached even in the unlikely event that the public perceives the contested sign as a stylised letter ‘V’, such that the signs would be aurally and conceptually identical, whilst remaining visually similar to at most a low degree.

The signs’ short nature further supports this conclusion, as in principle, the shorter the sign, the more easily the public is able to perceive all its single elements and appreciate the overall impression the signs convey. The Court has established that in the assessment of the likelihood of confusion between signs comprising the same single letter (as per the opponent’s claims), the visual comparison is in principle decisive, and thus sufficient visual differences between the marks can override aural and conceptual identity (10/05/2011, T-187/10, / § 60).

It follows that the signs’ aural and conceptual identity and at best low level of visual similarity would be largely offset by the overwhelming visual differences between the short signs at issue (19/05/2020, R 2381/2019-4, / , § 43). Said differences would, moreover, be immediately appreciated by even the public who displays only an average degree of attentiveness.

Even under the principle of interdependence, such a low degree of similarity between the marks would require some degree of enhanced distinctiveness, even for identical goods, which the opponent did not claim (12/04/2021, R 945/2020-5, / , § 55). There can be no automatism for finding a likelihood of confusion in instances where the similarity is only low (22/03/2011, T-486/07, CA, EU:T:2011:104, § 69).

Consequently, even bearing in mind the principle of imperfect recollection, the Opposition Division holds that in light of the evident visual differences between the signs (including where the letter ‘V’ is perceived in both), the relevant public will be able to safely distinguish between them without confusing the commercial origin of goods bearing said signs, including for identical goods.

As there is no likelihood of confusion, the opposition based on the grounds of Article 8(1)(b) EUTMR must be rejected.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR, because 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 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

  

Denitza STOYANOVA-VALCHANOVA

Begoña URIARTE VALIENTE

Michaela SIMANDLOVA

 

 

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.