OPPOSITION No B 3 093 180

Intergamma B.V., Storkstraat 2, 3833 LB Leusden, Netherlands (opponent), represented by Bakker & Verkuijl B.V., Alexander Office, Prinsenkade 9D, 4811 VB Breda, Netherlands (professional representative)

a g a i n s t

Guangdong Alpha Lighting Co., Ltd., Building 1, No. 3 Longtong 1st Road, Wanjiang Street, Dongguan, Guangdong, People’s Republic of China (applicant), represented by Intermark Patentes y Marcas, S.L.P. (also trading as Lidermark Patentes y Marcas), C/ Obispo Frutos, 1b 2°a, 30003 Murcia, Spain (professional representative).

On 12/03/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 093 180 is upheld for all the contested goods and services.

2. European Union trade mark application No 18 092 820 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 18 092 820 ‘ALPHAGAMMA’ (word mark). The opposition is based on Benelux trade mark registration No 1 029 170 ‘GAMMA’ (word mark). The opponent invoked Article 8(1)(b) EUTMR.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs, and the relevant public.

a) The goods and services

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

Class 11: Apparatus and installations for lighting, heating, sanitary purposes.

Class 35: Wholesale services in the field of kits for the treatment of burns, consisting of medical products for the treatment of burns.

Following the finalisation of a partial refusal, the contested goods and services are:

Class 11: Lamps; light-emitting diodes [LED] lighting apparatus; solar thermal collectors [heating]; lighting apparatus and installations; fairy lights for festive decoration; aquarium lights; diving lights; ultraviolet ray lamps, not for medical purposes; chandeliers; luminaires.

Class 35: Wholesale services for pharmaceutical, veterinary and sanitary preparations and medical supplies.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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 11

The contested lamps; light-emitting diodes [LED] lighting apparatus; lighting apparatus and installations; fairy lights for festive decoration; aquarium lights; diving lights; chandeliers; luminaires are either included in the broad category of the opponent’s apparatus and installations for lighting, or contained identically in both lists (including synonyms). Therefore, they are identical.

The contested solar thermal collectors [heating] are included in the broad category of the opponent’s apparatus and installations for heating. Therefore, they are identical.

The contested ultraviolet ray lamps, not for medical purposes are included in the broad category of the opponent’s apparatus and installations for sanitary purposes. Therefore, they are identical.

Contested services in Class 35

Wholesale services of specific goods and wholesale services of other goods have the same nature, and the same purpose, as both permit consumers to conveniently satisfy different shopping needs. They also have the same method of use.

There is similarity between those wholesale services where the goods concerned are commonly retailed together in the same outlets and target the same public. However, the degree of similarity between the wholesale of specific goods and the wholesale of other goods may vary depending on the proximity of the wholesale goods and the particularities of the respective market sectors.

The contested wholesale services for pharmaceutical, veterinary and sanitary preparations and medical supplies are services offered in relation to broad categories of goods that include those to which the opponent´s wholesale services in Class 35 are offered (i.e. kits for the treatment of burns, consisting of medical products for the treatment of burns). Therefore, it can be considered that the contested services include, as broader categories, the services of the opponent. Since the Opposition Division cannot dissect ex officio the broad category of the contested services, they are considered identical to the opponent’s services.

b) Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods and services found to be identical are directed at the public at large (e.g. lamps) and in part at professionals (e.g. wholesale services for pharmaceutical, veterinary and sanitary preparations and medical supplies).

The public’s degree of attentiveness may vary from average to high, depending on the price, specialised nature, or terms and conditions of the goods and services purchased. In particular it may be somewhat higher for the services in Class 35, as they are business related and are connected to company spending/investment.

c) The signs and the distinctiveness of the earlier mark

GAMMA	ALPHAGAMMA
Earlier trade mark	Contested sign

The relevant territory is Benelux.

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).

Both signs are single word marks. The earlier sign is ‘GAMMA’, and the contested sign ‘ALPHAGAMMA’.

In its observations, the opponent claims that the relevant public can perceive different concepts in the components comprising the signs under comparison, namely ‘GAMMA’ and ‘ALPHA’.

Since it is not necessary to establish that there is a likelihood of confusion for the whole of the relevant public (20/07/2017, T‑521/15, D (fig.) / D (fig.) et al., EU:T:2017:536, § 69), the Opposition Division finds it appropriate to focus the comparison of the signs on the significant part of the public in the relevant territory that will perceive ‘GAMMA’ and ‘ALPHA’ as the names of the third (γ) and first (α) letters of the Greek alphabet (even though, for part of the relevant consumers, they are spelled differently: e.g. ‘ALFA’ in Dutch). For this part of the public, the signs present conceptual similarities and, therefore, this is the part in which likelihood of confusion is more likely to occur. This also avoids having various scenarios concerning reduced parts of the public, which would have no bearing on the final outcome of the case.

Therefore, the earlier mark, ‘GAMMA’, has no meaning in relation to the relevant goods and services, and in the absence of a claim for enhanced distinctiveness from the opponent, the distinctiveness of the earlier mark must be seen as normal.

The contested sign, ‘ALPHAGAMMA’, as a whole, will be perceived as an invented term by the relevant public. However, although it is true that the consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that they will break down a word into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57). Therefore, despite its depiction as a single verbal element, the relevant public will break the contested sign down into two components that they recognise, namely ‘ALPHA’ and ‘GAMMA’. This division is highly likely considering that consumers naturally look for a meaning when reading words.

The conclusions regarding the distinctiveness of ‘GAMMA’ also apply in relation to the contested sign’s additional component ‘ALPHA’. As it is not descriptive, allusive or otherwise weak in relation to the relevant goods and services, it is also distinctive to an average degree.

Visually and aurally, the signs coincide in the sole and distinctive element of the earlier mark, ‘GAMMA’, and in its pronunciation. However, they differ in the additional component ‘ALPHA’, placed at the beginning of the contested sign, and its pronunciation.

Therefore, the signs are visually and aurally similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. The signs are conceptually similar in that they both contain the component ‘GAMMA’. The contested sign differs from the earlier mark in its component ‘ALPHA’. Therefore, the signs are conceptually similar to an average degree.

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

d) Global assessment, other arguments and conclusion

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).

The goods and services are identical. They target the public at large as well as professionals with a degree of attention that varies from average to high.

The signs are visually, aurally and conceptually similar to an average degree due to their coinciding component ‘GAMMA’, which is the entire earlier mark. The earlier mark is distinctive to a normal degree.

The additional component ,‘ALPHA’ of the contested sign is not sufficient to safely exclude a likelihood of confusion given the identity between the goods and services and the fact that the earlier mark is entirely included in the contested sign.

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. Furthermore, it is common practice in the relevant market for manufacturers to make variations of their trade marks, for example by adding/removing verbal or figurative elements to them, in order to denote a new product line or to endow a trade mark with a new, fashionable image.

Although the relevant public might detect certain differences between the conflicting signs, the likelihood that it might associate the signs with each other is very real. It is highly likely that the relevant consumer will perceive the contested sign as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49). It is, therefore, conceivable that the relevant public will regard the goods and services designated by the conflicting signs as belonging to two ranges of products coming from the same undertaking, under the ‘GAMMA’ brand.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public under analysis, who will perceive the components ‘GAMMA’ and ‘ALPHA’ as letters of the Greek alphabet.

Therefore, the opposition is well founded on the basis of the opponent’s Benelux trade mark registration No 1 029 170. It follows from the above that the contested trade mark must be rejected for all the contested goods and services.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

María del Carmen SUCH SÁNCHEZ

Sofía SACRISTÁN MARTÍNEZ

Manuela RUSEVA

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.