OPPOSITION Nо B 3 103 226

Frank Porst, Frohnbergstraße 23, 92256 Hahnbach, Germany (opponent), represented by Advotec. Patent- Und Rechtsanwälte, Bahnhofstr. 5, 94315 Straubing, Germany (professional representative)

a g a i n s t

Yaling Liu, Room 1303, Building 6, Block 20 Yujiangnan International Community, No. 3 Jinquan Aven., Xinan Str., Null Sanshui District, Foshan City, Guangdong Province, People’s Republic of China (applicant), represented by Sakellarides Law Offices, Adrianou Str. 70, 10556 Athens, Greece (professional representative).

On 29/10/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 103 226 is upheld for all the contested goods, namely:

Class 6: Window stops of metal; chains of metal; furniture casters of metal; door handles of metal; knobs of metal; hinges of metal; fittings of metal for furniture; sliding rails of metal; door fittings of metal; sash pulleys.

2. European Union trade mark application No 18 098 603 is rejected for all the contested goods. It may proceed for the remaining services.

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

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 18 098 603 (figurative mark), namely against all the goods in Class 6. The opposition is based on European Union trade mark registration No 17 693 045 ‘HERMAT’ (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

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

Class 6: Door fittings, of metal; ironwork for doors; fittings of metal for furniture; fittings of metal for windows; mouldings of metal for building; profiles of metal for doors, windows and glass partitions; metallic divisions [partitions]; doorstops of metal; signboards of metal; stepladders of metal.

The contested goods are the following:

Class 6: Window stops of metal; chains of metal; furniture casters of metal; door handles of metal; knobs of metal; hinges of metal; fittings of metal for furniture; sliding rails of metal; door fittings of metal; sash pulleys.

Door fittings of metal; fittings of metal for furniture are identically contained in both lists of goods (including synonyms).

The contested chains of metal; furniture casters of metal; knobs of metal; hinges of metal; sliding rails of metal are included in the broad category of, or overlap with, the opponent’s fittings of metal for furniture. Therefore, they are identical.

The contested window stops of metal; sash pulleys are included in the broad category of, or overlap with, the opponent’s fittings of metal for windows. Therefore, they are identical.

The contested door handles of metal are included in the broad category of the opponent’s door fittings, of metal. Therefore, they are identical.

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 identical are directed at the public at large and business customers with specific professional knowledge or expertise. The degree of attention is average.

c) The signs

HERMAT
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.

The Opposition Division finds it appropriate to focus the comparison of the signs on the German-speaking part of the public, as it is more prone to confusion in this case since the differing letter ‘ö’ of the contested sign is not unusual in German and therefore will not have a striking impact on the visual aspect.

The signs have no meanings for the relevant public and are, therefore, distinctive.

The verbal element, ‘Hömat’, of the contested sign is depicted in a slightly stylised black font, except for the letters ‘ö’ and ‘a’, which are partly in light blue. However, these figurative aspects of the sign have a reduced impact, because when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37).

Visually and aurally, the signs coincide in the sequence of letters/sounds ‘H*(*)MAT’. However, they differ in the second and third letters/sounds ‘ER’ of the earlier mark and in the letter/sound of the second letter of the contested sign, ‘ö’.

Moreover, the signs differ visually in the contested sign’s slight stylisation and colours. However, as stated above, these differing components have a reduced impact, as the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal elements rather than by describing their figurative aspects.

Aurally, the signs have the same rhythm and intonation, as they have the same number of syllables (two).

Therefore, bearing in mind that the signs are not short, and their coincidences reside in their beginnings and endings, the signs are visually and aurally similar to an average degree.

Conceptually, neither of the signs has a meaning for the relevant public. 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.

The opponent did not explicitly claim that his 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 for the goods in question from the perspective of the relevant public. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) 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).

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 covered are from the same or economically linked undertakings.

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).

The goods at issue found to be identical target the general and professional public whose degree of attention may vary from average to higher than average. The signs are visually and aurally similar to an average degree as they coincide in four letters/sounds ‘H*(*)MAT’, placed identically at the beginning and ending of each sign. The differences resulting from the different letters, ‘ER’ v ‘ö’, in the middle of the signs, which are not short, as well as the contested sign’s figurative aspects, which have a reduced impact, are not sufficient to outweigh the abovementioned similarities. The distinctiveness of the earlier mark is normal and neither of the signs has a meaning that could help the relevant public to more easily differentiate them.

Therefore, and given the interdependence principle, it is highly conceivable that the relevant public, who have to rely on their imperfect recollection of the signs, will confuse the trade marks.

Considering all the above, there is a likelihood of confusion on the part of the German-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 well founded and the contested trade mark must be rejected for all the contested goods.

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, they 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

Beatrix STELTER

Lidiya NIKOLOVA

Marta Maria CHYLIŃSKA

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.