OPPOSITION No B 3 097 271

Kampa UK Limited, Little Braxted Hall, Little Braxted, CM8 3EU, Witham, United Kingdom (opponent), represented by Dummett Copp LLP, 25 The Square, Martlesham Heath, IP5 3SL, Ipswich, United Kingdom (professional representative)

a g a i n s t

Spieler Thinktank GmbH, Innsbruckerstrasse 126, 5020, Salzburg, Austria and Wolfgang Spieler, Dorf 36, A-6352 Ellmau, Austria (applicants).

On 25/08/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 097 271 is partially upheld, namely for the following contested goods:

Class 12: Camper vans; Camping vehicles.

2. European Union trade mark application No 18 088 323 is rejected for all the above goods. It may proceed for the remaining goods and services.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 18 088 323 ‘camppa’. The opposition is based on European Union trade mark registration Nos 15 175 946 ‘KAMPA’ and 11 928 884 ‘ and United Kingdom trade mark registration No 2 498 459 . 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 and services

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

EUTM No 11 928 884:

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

Class 21: Household or kitchen utensils and containers; sponges; brushes (except paint brushes); brush-making materials; articles for cleaning purposes; steelwool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes.

Class 22: Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes); padding and stuffing materials (except of rubber or plastics); raw fibrous textile materials.

EUTM No 15 175 946:

Class 4: Fuels and illuminants; gas cartridges, barbecue fuel, charcoal fuel, charcoal briquettes, firelighters, kindling wood.

Class 7: Air pumps, electric pumps; parts and fittings for all the aforesaid goods included in this class.

Class 11: Apparatus for lighting, heating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes; friction lighters for igniting gas; gas lighters; lamps, including flash lights, bicycle lights, torches for lighting, electric pocket torches, diving lights, head lamps, LED lamps, gas lamps, oil lamps, portable lamps, safety lamps, overhead lamps; lamp reflectors; pocket warmers; immersion heaters; ultraviolet ray lamps, not for medical purposes; water filtering apparatus; water sterilizers, water heaters, electric water heaters, gas water heaters, solar water heaters, portable water heaters, cool boxes (electric), chilling containers, refrigerating containers, gas heaters, gas space heaters, portable electric heaters for use in tents, caravans and motorhomes, electric blankets, dehumidifiers, air dehumidifiers, portable toilets; gas regulators, barbecues, gas barbecues, charcoal barbecues, portable gas stoves, gas ovens, portable gas ovens, gas hobs, electric ovens, portable electric hobs, electric hobs, hobs, toasters, electric toasters, electric kettles, water dispensers; parts and fittings for all the aforesaid goods included in this class.

Class 12: Trolleys, covers for motor cars, covers for caravans, covers for trailers, covers for trailer tents; parts and fittings for all the aforesaid goods included in this class.

Class 20: Furniture; sleeping bags; folding furniture; beds and cots, air beds, air cushions, air pillows and air mattresses; roll mats, pillows, mattresses; tent pegs and tent poles, folding beds; camp beds; air mattresses, inflatable mattresses, foam camping mattresses, foam mattresses, picnic baskets, portable water carriers (containers) made of plastics, portable waste water carriers (containers) made of plastics, non-metal wheel chocks; folding chairs; folding tables; parts and fittings for all the aforesaid goods included in this class.

Class 21: Household and kitchen utensils and containers; cooking pots and pans; cork screws; crockery, dishes; glasses and drinking vessels; insulating flasks; lunch boxes; picnic baskets; portable coolers; cool boxes; vacuum flasks, insulated containers, jugs, boxes, chests, mugs, beakers and bags, bowls, plastic bowls, washing up bowls, picnic boxes and bags (fitted), picnic crockery, insulated backpacks, insulated bottle bags, steel vacuum flasks and carafes, insulated carafes and cafetieres, glassware, glass vessels; culinary and domestic utensils and containers, bottles, flasks and containers, ice containers, utensils for dispensing liquids, glass stoppers, tea infusers, tea urns, coffee urns, clothes drying racks, buckets, plastic buckets, brushes for cleaning, barbecue mitts, whistling kettles, non-electric kettles, water dispensers; parts and fittings for all the aforesaid goods

Class: 22: Tents, awnings, tarpaulins and unfitted coverings; awnings for caravans, awnings for vehicles, awnings for motorhomes, canopies, ground sheets, fly sheets; washing lines, waterproof coverings for camps, waterproof covers, hammocks, rope ladders, marquees (textile), ropes, string, nets; washing lines, windbreaks; parts and

fittings for all the aforesaid goods included in this class.

UK trade mark registration No 2 498 459

Class 22: Tents; awnings; tarpaulins; sails; marquees.

The contested goods and services are the following:

Class 9: Mobile apps; Charging stations for electric vehicles.

Class 12: Camper vans; Camping vehicles.

Class 35: Online ordering services.

Class 39: Rental of recreational vehicles; car parking; provision of car parks and car parking services; parking and vehicle storage, mooring; airport parking services; parking place rental; rental of garages and parking places; rental of parking places and garages for vehicles.

Class 43: Booking of campground accommodation; providing temporary trailer park facilities; providing campground facilities.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 9

The opponent’s earlier marks cover fuels; illuminants in Class 4, pumps and related parts and fittings in Class 7, Apparatus for lighting, heating, cooking, refrigerating, drying, ventilating, water supply and sanitary apparatuses; toasters; barbecues; kettles and related parts and fittings in Class 11, trolleys, covers for motor cars, caravans trailers and related parts and fittings in Class 12, furniture; sleeping bags; mattresses and related parts and fittings in Class 20, household and kitchen utensils, glassware and and related parts and fittings in Class 21 and ropes, tents, awnings, bags, coverings, textile materials and related parts and fittings in Class 22.

It is rather clear that none of the above goods of the opponent have any connection with the contested mobile apps; charging stations for electric vehicles in Class 9. The Opposition Division sees no link whatsoever between the opponent’s goods and these contested goods in terms of their manufacturers, customers, distribution channels and methods of use. Furthermore, these goods under comparison are neither in competition nor complementary. The mere fact, as argued by the opponent, that the contested mobile apps may be used in relation to a wide variety of goods, or that the contested charging stations are used for vehicles is certainly not a sufficiently close link. In particular with regard to the opponent’s electronic apparatuses in Class 11, it must be noted that while today a large number and variety of such apparatuses may contain software, it is not their crucial element. The mere fact that the opponent’s goods may be incorporated in some of the contested goods is in itself not enough since, in general, the fact that one product is used for the manufacture of another will not be sufficient to show that the goods are similar, as their natures, purposes and distribution channels may be quite distinct (13/04/2011, T-98/09, T Tumesa Tubos del Mediterraneo S.A., EU:T:2011:167, § 49-51).

Therefore, these contested goods must be considered to be dissimilar to the opponent’s goods.

Contested goods in Class 12

The contested camper vans; camping vehicles are similar to the opponent’s covers for caravans, covers for trailers, covers for trailer tents since these goods under comparison may coincide in their customers, producers and distribution channels and there is a degree of complementarity between them, too.

Contested services in Class 35

The contested online ordering services have nothing in common with any of the opponent’s goods. While these contested services may concern the same goods as covered by the earlier marks, this mere clerical/administrative function has no relevant connection to any goods as they differ in their nature, manufacturers/providers, customers, distribution channels, and they are neither in competition nor directly complementary to one another. Therefore, these contested services must be considered to be dissimilar to any of the opponent’s goods.

Contested services in Class 39

The contested services in this class, namely rental of recreational vehicles; car parking; provision of car parks and car parking services; parking and vehicle storage, mooring; airport parking services; parking place rental; rental of garages and parking places; rental of parking places and garages for vehicles are dissimilar to the opponent’s goods as listed above. Apart from the fundamental difference between the contested intangible services and the opponent’s tangible goods, they do not have anything in common in terms of their manufacturers/providers, distribution channels, customers, and they are neither in competition nor complementary. The mere fact, as argued by the opponent, that the contested services include rental of vehicles is not a sufficiently close link in relation to the opponent’s goods since car rental or parking agencies do not usually manufacture, for example, trolleys or covers for vehicles, and consumers of one or the other would not presume they originate from the same undertaking. Equally, the contested parking services essentially refer to the service whereby vehicles are parked/stored for a fee. These services are not similar to any kind of goods, including any of the goods that are parked and stored (see, by analogy, 22/06/2011, T-76/09, Farma Mundi Farmaceuticos Mundi, EU:T:2011:298, § 32.). For the sake of completeness, it is noted that these contested services are even further apart from and dissimilar to the opponent’s other goods as specified above, given that those goods cannot even be considered to be potentially used in relation to the contested services at issue.

Contested services in Class 43

With regard to the contested booking of campground accommodation; providing temporary trailer park facilities; providing campground facilities in this class, conclusions similar to those in the preceding paragraph may be drawn. The mere fact that these services provide facility to be used in relation to the opponent’s goods is not a sufficiently close link. Apart from the fundamental difference between tangible goods and intangible services, such facility owners do not manufacture, for example, trolleys, tents or covers for vehicles, and consumers of one or the other would not presume they originate from the same undertaking, and these services and goods also differ in their methods of use, distribution channels and they are neither in competition nor complementary. For the sake of completeness, it is noted that these contested services are even further apart from the opponent’s other goods as specified above, given that those goods cannot even be considered to be potentially used in relation to the contested services at issue. In conclusion, these contested goods and all of the opponent’s goods are dissimilar.

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 similar are directed at the public at large and at the professional public.

The degree of attention is considered to be higher than average in relation to the contested Camper vans; Camping vehicles since, prior to purchase of those goods, consumers are usually well informed, taking all relevant factors into consideration, for example, price, consumption, insurance costs, personal needs or even prestige (22/03/2011, T‑486/07, CA, EU:T:2011:104, § 27-38; 21/03/2012, T‑63/09, Swift GTi, EU:T:2012:137, § 39-42).

For the remaining relevant goods, consumers usually exercise an average degree of attention.

Since similarity of goods was only found in relation to goods covered by the opponent’s European Union mark trade mark registration No 15 175 946, comparison of the signs will proceed accordingly, that is, only taking into account the said earlier mark.

c) The signs

KAMPA	camppa
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.

In the present case, from the perspective of the Italian-speaking public, the signs at issue are meaningless and their initial letters are pronounced in a highly similar, if not identical, manner. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the Italian-speaking part of the public.

Both signs are word marks and lack any meaning, therefore, both have a normal degree of distinctiveness.

Visually, the signs coincide in the letter sequence ‘-AMP-‘ as well as in their final letter ‘A’. They differ in their initial letters ‘K’ / ‘c’ and in the second ‘p’ inside the contested sign. This also means that all but the first letter of the earlier mark is reproduced in the contested sign, in the same order and in nearly the same position. While the differing first letters have a certain differentiating impact, the second ‘p’ in the contested sign has a much lesser role given its position. Overall, the reproduction of nearly the whole of the earlier mark in the contested sign will make the signs similar to an average degree.

Aurally, reference is made to the preceding paragraph in terms of the signs’ structure and coinciding and differing elements. In addition, their differing first letters, ‘K’ and ‘c’ are pronounced in a near-identical manner and the double ‘p’ will hardly be stressed after the consonant ‘m’ in the middle part of the contested sign. Considering all these factors, the signs are highly similar.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

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.

According to the opponent, the earlier mark have been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

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

e) Global assessment, other arguments and conclusion

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).

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services 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).

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

Some of the contested goods are similar to the opponent’s goods while some of the goods and all of the services are dissimilar. Furthermore, the signs are similar to an average degree visually and to a high degree aurally, with the conceptual aspect playing no role in the present case. The fact that nearly the entire earlier mark is reproduced in the contested sign will clearly lead consumers to believe that the similar goods originate from the same or linked undertakings.

In its observations, the opponent argues that future evolution of its brand should be taken into account and there will be a natural expansion of the range of goods and services which it may offer. It also refers to how the applicants are using its mark now, based on its website. In this regard, the Opposition Division notes that, in opposition proceedings, specific or future marketing strategies are not relevant. The Office must take the usual circumstances in which goods or services covered by the marks are marketed as its benchmark and must base its assessment of the signs on the actual goods and services registered / applied for.

Considering all the above, there is a likelihood of confusion on the part of the Italian-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 partly well founded on the basis of the opponent’s European Union trade mark registration No 15 175 946. It follows that the contested trade mark must be rejected for the contested goods found to be similar.

The rest of the contested goods and services are dissimilar. As the similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods and services cannot be successful.

The opposition is partly successful on the basis of the inherent distinctiveness of the earlier mark. There is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its extensive use as claimed by the opponent since the result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness given the dissimilarity of the remaining goods and services as explained above. This also applies to the remaining two earlier marks, for these same reasons.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Nicole CLARKE

Ferenc GAZDA

Biruté SATAITE-GONZÁLEZ

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.