OPPOSITION No B 3 096 549

Euronics Italia S.p.A, Via Montefeltro 6/A, 20156, Milano, Italy (opponent), represented by Perani & Partners SpA, Piazza Armando Diaz, 7, 20123, Milano, Italy (professional representative)

a g a i n s t

easyGroup Ltd, 168 Fulham Road, London SW10 9PR, United Kingdom (applicant), represented by Kilburn & Strode LLP, Laapersveld 75, 1213 VB Hilversum, Netherlands (professional representative).

On 21/12/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 096 549 is upheld for all the contested services.

2. European Union trade mark application No 18 109 922 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the services of European Union trade mark application No 18 109 922 . The opposition is based on, inter alia, European Union trade mark registration No 13 419 718 . 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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 13 419 718 .

a) The services

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

Class 36: Financial and monetary affairs; Providing and arranging finance; Valuation services; Insurance; Insurance guarantees; Insurance guarantees; Insurance consultation.

The contested services are the following:

Class 36: life insurance.

The contested life insurance is included in the broad category of the opponent’s insurance. 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 services found to be identical are directed at the public at large.

However, since such services 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

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 signs coincide fully in their sole verbal elements ‘EASY LIFE’, which have a unitary meaning in English, namely a life of comfort, without problems or worries.

Whether the signs are understood as such or perceived as meaningless, it is rather immaterial in the present case since the degree of distinctiveness of the signs' verbal elements is on equal footing. Indeed, the only differentiating features, which lie in the figurative elements thereof, namely the rhombus-shaped background (in black with inner white border) of the earlier mark and the orange coloured rectangular background of the contested sign, have a decorative function and, therefore, they are non-distinctive. The stylisation of the verbal elements is very standard and, therefore, non-distinctive.

It follows that the signs are visually similar and aurally and conceptually identical, at least for the part of the public that will grasp a meaning in the verbal elements.

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

In the present case, the services are identical, the signs are aurally and conceptually identical and visually similar, and the level of attention of the relevant public is higher than average.

Taking into account the aforementioned, and especially the fact that the contested sign reproduces the entirety of the verbal elements of the earlier mark, the differences between the signs – consisting of the figurative/stylised elements – are not sufficient to counteract their prominent similarities. Furthermore, 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).

Therefore, it is likely that the relevant consumer, on encountering both signs in relation to identical services, and having an imperfect recollection of the contested sign, might think that the services originate from the same undertaking or from economically linked undertakings. This conclusion would hold true even if the distinctiveness of the coinciding element and the earlier mark as a whole was very low.

In its submissions the applicant submits that the verbal elements of the contested sign amount to a neologism on the basis that ‘easyLife’ is said to be a coined word. However, even leaving aside the fact that the letter ‘L’ is capitalised in the contested sign such that this sign is immediately perceived as being the combination of the words ‘easy’ and ‘Life’, this contention does not change the fact that the verbal elements of both signs will be perceived by the public that will understand them as having the same meaning, as set out under section c) above.

Moreover, the applicant has argued that the colour used in the contested sign and the manner of presentation of the verbal elements is redolent of the applicant. However, the assessment of a likelihood of confusion under Article 8(1)(b) EUTMR is based on the contested sign as filed and so the actual use or reputation thereof is irrelevant for the current assessment. In any event, the stylised/figurative elements of the contested sign are non-distinctive for the reasons set out at section c) above.

Considering all the above, there is a likelihood of confusion on the part of the relevant public and this is so even if a higher than average degree of attention is exercised.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 13 419 718. It follows that the contested trade mark must be rejected for all the contested services.

As the said earlier right leads to the success of the opposition and to the rejection of the contested trade mark for all the services against which the opposition was directed, there is no need to examine the other earlier right invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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

Angela Di BLASIO

Kieran HENEGHAN

Begoña URIARTE VALIENTE

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.