OPPOSITION Nо B 3 097 349

 

Jean-Lucien Mazeau, Les Coeurs, 45 500 Autry-Le-Chatel, France (opponent).

 

a g a i n s t

 

Stephan Patzschke, Spessartstr. 3, 63829 Krombach, Germany (applicant), represented by Slopek Vonau Rechtsanwälte, Zippelhaus 6, 20457 Hamburg, Germany (professional representative).

On 11/12/2020, the Opposition Division takes the following

 

 

DECISION:

 

 

1.	Opposition No B 3 097 349 is rejected in its entirety.

 

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

 

REASONS

 

The opponent filed an opposition against all the services of European Union trade mark application No 18 088 612 ‘D=’ (word mark), namely against all the services in Classes 36, 38 and 42. The opposition is based on French trade mark registration No 4 532 952, (figurative mark). The opponent invoked Article 8(1)(a) EUTMR 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.

 

 

a) The services

 

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

Class 35: Market research consultancy; taxation [accountancy] consultation; consultancy regarding advertising communication strategies; public relations services; consultancy regarding public relations communication strategies; commercial intermediation services; presentation of goods on communication media, for retail purposes

Class 36: Financial consultancy; financial economic advisory services; financial advisory services provided for bankers; financing services relating to real estate development; financial information; financial analysis; currency exchange and advice; capital investment consultation; e-wallet payment services; virtual currency services; consultancy services relating to credit; financial evaluation [insurance, banking, real estate]

 

The contested services are the following:

 

Class 36: Finance services; financing and funding services; monetary affairs; insurance underwriting.

Class 38: Telecommunication services.

Class 42: Technological services; design services; research services; software development.

The services in Classes 38 and 42 do not coincide in any of the established criteria for finding similarity between goods and services. Namely, telecommunication and technological services do not have the same nature, intended purpose, are not complementary and are not in competition nor do they share the same market sector or distribution channels with financial and market services. The services from the earlier right concern marketing, taxation commercial services as well as financial and insurance related services. The fact that these services may use the contested services in some shape or form is not indicative of any degree of similarity unless there is an interdependent relationship, which is not the case here. It is therefore evident that the services in those Classes are clearly dissimilar to the ones on which the opposition is based.

When it comes to the contested services in Class 36, some of the contested services are identical or similar to services on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the services in Class 36. The examination of the opposition will proceed solely for the services in Class 36 and will be conducted on the hypothesis of all the contested services in this Class being 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

 

In the present case, the services found to be identical or similar are directed at the public at large as well which is reasonably well informed and reasonably observant and circumspect, as the professional public which might use these services for business purposes.

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.

 

Since the services assumed identical are specialised services that may have important financial consequences for their users, consumers’ level of attention would be quite high when choosing them (03/02/2011, R 719/2010-1, f@ir Credit (fig.) / FERCREDIT, § 15; 19/09/2012, T-220/11, F@ir Credit, EU:T:2012:444, dismissed; 14/11/2013, C-524/12 P, F@ir Credit, EU:C:2013:874, dismissed).

c) The signs

 

	D=
Earlier trade mark	Contested sign

 

  

The relevant territory is France.

 

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).

 

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

  

The contested sign is a short sign that consists of the elements ‘D=’, which have no meaning for the relevant public for the services in question and are, therefore, distinctive.

The element ‘ ’ of the earlier mark is likely to evoke to the mind of the relevant French speaking public a currency symbol. Currency symbols tend to include one or two lines in them (ex. €, ¥, £, $) and in the majority of them, those lines are horizontal. Seeing as in the relevant territory the currency is Euro, the symbol ‘ ’ is very likely to be associated with the design of the Euro currency symbol which also comprises two horizontal lines, just like the earlier mark. Bearing in mind that the services in question are financial services, this element is related to those services and is, therefore, weak.

 

Visually, the letter ‘D’ appears in both the earlier and the contested sign. However, the stylisation of the earlier sign is made in a way that the letter D along with the two horizontal lines will be visually conceived by relevant public as one entity, rather than two separate components. On the contrary, when it comes to the contested sign, the letter ‘D’ and the symbol ‘=’ are presented next to each other. Both signs are short marks. The length of the signs may influence the effect of the differences between them. The shorter a sign, the more easily the public is able to perceive all of its single elements. Therefore, in short words, small differences may frequently lead to a different overall impression. In contrast, the public is less aware of differences between long signs. In light of the above, seeing as the symbol ‘=’ will be conceived as the equality sign in the contested mark, but not in the earlier mark, it is concluded that the two signs are visually dissimilar.

  

Aurally, the pronunciation of the signs coincides in the sound of the letter ‛D’, present identically in both signs. The pronunciation differs in the sound of the symbol ‘=’. As previously said, this symbol is to be interpreted as an equality sign by the relevant, French-speaking public. The latter would therefore pronounce the contested sign as ‘Dé égal’ and the earlier mark as just ‘Dé’. Therefore, it is concluded that the signs are aurally similar to a low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs will be associated with a dissimilar meaning, the signs are conceptually not similar.

As the signs merely coincide in irrelevant aspects, they are dissimilar.

 

 

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 a meaning for the services in question from the perspective of the public in the relevant territory. The distinctiveness of the earlier mark must be seen as normal, despite the presence of some weak elements in the mark, as stated above in section c) of this decision.

 

e) Global assessment, other arguments and conclusion

 

As already established before, the services in which the comparison if focused have been assumed to be all identical. The rest of the services are dissimilar.

The relevant public is the French-speaking public and more precisely the professional public and the public at large. The degree of attention is high for the services assumed identical.

When it comes to the signs in question, those have been found visually dissimilar, aurally similar to a low degree and not conceptually similar.

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).

 

Considering all the above, even assuming that the services in Class 36 are identical, there is no likelihood of confusion on the part of the public for those services. Further, for the rest of the services which are clearly dissimilar, as previously stipulated, given that likelihood of confusion requires an identity or similarity of the goods and services, the opposition fails on this account. Therefore, based on the aforementioned, the opposition 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

 

 

Vanessa PAGE HOLLAND

Inés GARCIA LLEDO

Martin EBERL

 

 

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.