OPPOSITION No B 3 104 714

Aldi GmbH & Co. KG, Burgstr. 37, 45476, Mülheim/Ruhr, Germany (opponent), represented by Schmidt, Von Der Osten & Huber Rechtsanwälte Steuerberater Partnerschaft mbb, Rüttenscheider Str. 26, 45128, Essen, Germany (professional representative)

a g a i n s t

Shangqin Yan, 12 Shenghui South Road, Nantou Town, Zhongshan City, People’s Republic of China (applicant), represented by GLP S.R.L., Viale Europa Unita, 171, 33100, Udine, Italy (professional representative).

On 11/02/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 104 714 is upheld for all the contested goods.

2. European Union trade mark application No 18 122 805 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 of European Union trade mark application No 18 122 805 for the figurative mark . The opposition is based on European Union trade mark registration No 11 457 686 for the word mark ‘ambiano’. 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 the following:

Class 7: Grinders/crushers, electric, for household purposes; blenders, electric, for household purposes; beaters, electric; kitchen machines, electric; knives, electric.

Class 9: Kitchen weighing scales; electronic thermometers, other than for medical use.

Class 11: Toasters; roasting apparatus; heating apparatus, electric; hearths; coffee machines, electric; cooking apparatus and installations; cooking utensils, electric; cooking rings; kilns; electric chip pans; microwave ovens [cooking apparatus]; stoves [heating apparatus]; ice machines and apparatus; fruit roasters; electric vegetable steamer; autoclaves [electric pressure cookers]; steam sterilizers; heaters, electric, for feeding bottles.

The contested goods are the following:

Class 7: Agitators; mixing machines; dishwashers; crushers for kitchen use, electric; mixers [machines]; mills for household purposes, other than hand-operated; tin openers, electric; can openers, electric; pepper mills, other than hand-operated; beaters, electric; coffee grinders, other than hand-operated; blenders, electric, for household purposes; kitchen machines, electric; whisks, electric, for household purposes; fruit presses, electric, for household purposes; food processors, electric; kitchen grinders, electric; spin dryers [not heated]; spin driers [not heated]; washing machines [laundry]; wringing machines for laundry; centrifugal mills.

Class 11: Bakers’ ovens; coffee roasters; fruit roasters; roasters; autoclaves, electric, for cooking; pressure cookers, electric; coffee percolators, electric; coffee machines, electric; deep fryers, electric; kettles, electric; microwave ovens [cooking apparatus]; bread baking machines; bread-making machines; multicookers; food steamers, electric; refrigerating cabinets; ice machines and apparatus; refrigerators; fans [air-conditioning]; air purifying apparatus and machines; hair dryers; hair driers.

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 7

The contested agitators; mixing machines; dishwashers; crushers for kitchen use, electric; mixers [machines]; mills for household purposes, other than hand-operated; tin openers, electric; can openers, electric; pepper mills, other than hand-operated; beaters, electric; coffee grinders, other than hand-operated; blenders, electric, for household purposes; kitchen machines, electric; whisks, electric, for household purposes; fruit presses, electric, for household purposes; food processors, electric; kitchen grinders, electric; spin dryers [not heated]; spin driers [not heated]; washing machines [laundry]; wringing machines for laundry; centrifugal mills are at least similar to the opponent’s kitchen machines in Class 7, as they can at least coincide in numerous relevant criteria such as their nature, general purpose, method of use, distribution channels and/or producers.

Contested goods in Class 11

The contested bakers’ ovens; coffee roasters; fruit roasters; roasters; autoclaves, electric, for cooking; pressure cookers, electric; coffee percolators, electric; coffee machines, electric; deep fryers, electric; kettles, electric; microwave ovens [cooking apparatus]; bread baking machines; bread-making machines; multicookers; food steamers, electric; refrigerating cabinets; ice machines and apparatus; refrigerators include various types of electrical kitchen equipment. They are at least similar to the opponent’s goods in Class 11, as they can target the same relevant public and serve the same purpose or related purposes. Furthermore, they are distributed through the same trade channels and can have the same producers.

The contested fans [air-conditioning]; air purifying apparatus and machines are devices and apparatus for the treatment of air, namely cleaning, filtration, sterilisation, freshening, circulation and ventilation. The earlier heating apparatus, electric in Class 11 are mechanisms for maintaining temperatures at a desirable level. They are often part of HVAC apparatus (heating, ventilation and air-conditioning) and, therefore, include air conditioners and ventilation devices with a heating function. This apparatus also usually has an air circulation function by way of a fan or swing. Air conditioners take the air from inside a space, heat it or cool it, depending on their setting, and then recycle the same air back into the room. They usually have filters and can also have air cleaning and purification systems, as it is common that they remove contaminants from the air. They are similar to the earlier heating apparatus, electric since they can have the same functions (08/05/2014, T‑575/12, Pyrox / Pyrot ea, EU:T:2014:242, § 70-71) and can also be integrated into the latter. All the goods concerned can be complementary (24/09/2015, T‑195/14, PRIMA KLIMA / PRIMAGAZ et al., EU:T:2015:681, § 25-26), target the same consumers, have the same commercial origin and share distribution channels and sales outlets. In addition, these goods may coincide in their operating method, namely the emission and treatment of air (22/08/2019, R 1530/2018‑5, TESLA (fig.) / Tessla, § 109-113; 07/11/2017, R 688/2017‑2, ecoSTOR / ecostar COMBUSTION SYSTEMS (fig.), § 24; 13/02/2017, R 1133/2016‑4, Ka2O (fig.) /K2O (fig.), § 19). Therefore, they are similar.

The contested hair dryers; hair driers are similar to at least a low degree to the opponent’s heating apparatus, electric in Class 11, as they may be available in the same stores selling small electric home appliances. Furthermore, these goods may originate from the same undertaking and coincide in their relevant public.

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 at least to a low degree are directed at the public at large.

The degree of attention is considered to be average.

c) The signs

ambiano
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 earlier mark is a word mark, ‘ambiano’. In the case of word marks, it is irrelevant whether they are written in lower- or upper-case letters, since it is the word as such that is protected and not its written form.

The contested sign is a figurative mark comprising a slightly stylised heart shape above the slightly stylised word ‘Amagiano’.

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 verbal elements ‘ambiano’ and ‘Amagiano’ are not meaningful in certain territories, for example, in those countries where German is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the German-speaking part of the public. As these elements have no meaning for the relevant public they are distinctive.

In principle, a heart shape is a relatively simple form, which may be more complex than other geometric shapes, but is not, however, visually rich. A heart shape is generally created by two (often perpendicular) lines that meet at one end to form a V-shape and at the other end to form two arcs, and are often coloured red. In the present case, the depiction of a heart in the contested sign is no more than a simple, commonplace and banal figure, of the type used in countless contexts (04/03/2016, R 804/2015‑2, AMO (FIG.) / AM (FIG.), § 32). The consumers will only see a decorative arrangement, to which they will not pay particular attention or go to the trouble of analysing (22/09/2016, T‑512/15, SUN CALI (fig.), EU:T:2016:527, § 62).

With regard to the slight stylisation of the letters of the verbal element ‘Amagiano’, it must be noted that its use for marketing purposes is a standard commercial practice. Therefore, the stylisation of the letters of the contested sign is purely decorative.

Furthermore, 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 ‘Am**iano’. However, they differ in the letters ‘*b*’ of the earlier mark and ‘*ag*’ of the contested sign and in the figurative elements of the contested sign, which are decorative and have less impact.

Therefore, the signs are at least similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the heart shape in the contested sign will be perceived as merely decorative, it probably will not be seen as an indication of the commercial origin. Therefore, as neither of the signs as a whole has a meaning for the public in the relevant territory, a conceptual comparison is not possible, and 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 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 no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association that can be made with the registered mark and the degree of similarity between the marks and between the goods or services identified (recital 11 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

The contested goods are similar to at least a low degree to the opponent’s goods. They target the public at large with an average degree of attention. The earlier mark has a normal degree of distinctiveness.

The marks are visually and aurally similar to at least an average degree. In particular, they coincide in almost all of their letters, as the earlier mark ‘ambiano’ and the verbal element ‘Amagiano’ of the contested sign only differ in the letters ‘*b*’ and ‘*ag*’ respectively. Furthermore, the figurative elements of the contested sign are of a decorative nature and have less impact.

Therefore, the differences between the signs are not sufficient to outweigh their similarities.

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). In the present case, the similarities between the marks are sufficient to compensate for the low degree of similarity of some of the goods.

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 on the basis of the opponent’s European Union trade mark registration No 11 457 686. It follows that 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, 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

Aldo BLASI

Francesca CANGERI

Andrea VALISA

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.