OPPOSITION Nо B 3 106 804

 

Jula AB, Box 363, 532 24 Skara, Sweden (opponent), represented by Hansson Thyresson AB, Norra Vallgatan 58, 201 20 Malmö, Sweden (professional representative) 

 

a g a i n s t

 

Shenzhen Huateng Smart Technology Co., Ltd., 603 Huashenghui Commercial Building, Jinhai Rd, Yantian Community, Xixiang Street, Baoan District, 518000 Shenzhen, People’s Republic of China (applicant), represented by Würth & Kollegen, Auf Dem Berge 36, 28844 Weyhe, Germany (professional representative).

On 01/12/2020, the Opposition Division takes the following

 

 

DECISION:

1.	Opposition No B 3 106 804 is rejected in its entirety.

 

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

 

REASONS

 

The opponent filed an opposition against some of the goods of European Union trade mark application No 18 126 102  (figurative mark), namely against all the goods in Class 9. The opposition is based on international trade mark registration designating the European Union No 1 108 230 ‘JULA’ (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 the following:

 

Class 9: Photographic, cinematographic and optical apparatus and instruments; apparatus and instruments for surveying, watching, weighing, measuring, signaling, lifesaving and teaching; apparatus and instruments for control (surveillance), not for medical purposes; apparatus and instruments for recording, transmission of sound and images; magnetic data carrier; sound recording discs and sound recording discs including CD ROM disks; cassette tapes and video tapes; calculating machines; data processing equipment and computers; alcoholmeters; batteries included in this class; battery chargers; protective helmets and protective masks; switches; safety switches; circuit breakers; fuses included in in this class; electrical contacts, socket outlets including socket outlets for car heaters, sockets, plugs, cable shoes and other electrical connectors included in in this class; electric cables and wires; electric connections and junction boxes; glasses including safety goggles; electronic marking device; parts and components for the aforesaid named goods included in in this class.

The contested goods are the following:

 

Class 9: Computers; computer software, recorded; counters; scales with body mass analysers; signal lanterns; transmitters of electronic signals; headphones; audiovisual teaching apparatus; lenses for astrophotography; wires, electric; igniting apparatus, electric, for igniting at a distance; electrolysers; sprinkler systems for fire protection; protection devices for personal use against accidents; theft prevention installations, electric; spectacle chains; batteries, electric; animated cartoons; sports whistles; meters.

Some of the contested goods are identical or similar to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were 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

 

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 deemed to be identical are directed at the public at large as well as business customers with specific professional knowledge or expertise.

 

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price. 

c) The signs

 

JULA
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).

 

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 earlier mark is a word mark consisting of the word ‘JULA’. The protection of a word mark concerns the word as such, as long as the depiction does not depart from the usual way of writing (standard rules of capitalisation), as is the case here. The fact that the earlier right is depicted in capital letters only is therefore immaterial. Furthermore, the earlier mark, being a word mark, by means of definition, does not have any dominant (visually eye catching) elements. The word ‘JULA’ might be perceived by parts of the public as a reference to a female first name (e.g. in Slovenia) or as a reference to the months of July (e.g. in Slovakia, Hungary and Croatia). In other territories, for example in Bulgaria or Poland the sign will not be associated with any particular meaning. No matter whether understood in the above mentioned sense or not, the earlier mark has no particular meaning with regard to the relevant goods and is therefore of normal distinctive character.

The contested sign is a figurative mark consisting of the verbal element ‘joul’ depicted in a stylised font in lowercase letters. The first three letters are depicted in black colour, whereas the last letter is depicted in white colour being located within a black coloured square. The verbal element might be associated, depending on the territory, with the meaning of the English word ‘joule’, which in physics refers to a unit of energy or work (e.g. in the Czech Republic, Slovakia, Slovenia, Germany, Ireland). In other territories, for example in Bulgaria or Poland, it has no meaning. No matter whether understood in the above mentioned sense or not, the contested sign has no particular meaning with regard to the relevant goods either, and is therefore of normal distinctive character, too.

The contested sign has no element that could be considered clearly more dominant than other elements. 

Account has to be taken of the fact that 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.

 

Visually, the signs coincide in the letters ‘J’, ‘U’ and ‘L’, which are however placed in different positions (safe for the shared first letter ‘J’). While the signs are of the same length, they differ on account of the letters ‘A’ and ‘O’, which have no counterpart in the respective other sign. Apart from a shared first letter, the signs differ in the sequence of their remaining letters, which are ‘U-L-A’ in the earlier mark and ‘O-U-L’ in the contested sign. Furthermore, the signs differ on account of the stylisation as well as the figurative element of the contested sign, although these elements are of rather low impact on the perception of the sign by the relevant public. Taking into account the fact that both signs are rather short signs, each consisting of 4 letters only, and that the string of coinciding letters differs (safe for one letter), the signs are considered to be visually similar to a low degree only.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincide in the sound of the letters ‘J’, ‘U’ and ‘L’, which, however are placed in different positions of the signs (except for the first letter ‘J’). The signs differ on account of the sound of the letters ‘A’ and ‘O’, which have no counterparts in the respective other sign. As mentioned above, the signs are relatively short with the result that even small differences will be more easily identified by the relevant public. The Opposition Division is therefore of the view that the signs are at best aurally similar to an average degree.

 

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As mentioned above, the signs may convey various meanings depending on the relevant territory, which however, are different. For the part of the public who understands the various meanings of both signs, the signs are therefore conceptually dissimilar.

To the extent that parts of the public may only understand the meaning of one sign, but not of the other, the signs are conceptually not similar.

Finally, for the part of the public for whom neither of the signs has a meaning, 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

 

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 goods have been assumed to be identical and target the public at large as well as professionals, whose degree of attention will vary from average to high depending on the goods in question. The degree of inherent distinctiveness of the earlier mark is normal. The signs are visually similar to a low degree whereas they are aurally similar to an at most average degree. Moreover, the signs are either conceptually dissimilar, not conceptually similar or a conceptual comparison is not possible.

While the signs are similar to some extent, it has to be recalled that the signs are relatively short. Due to such shortness each sign will be seen immediately as noticeably different overall to the other. The signs only coincide in the position of its first shared letter whereas the remaining three letters, albeit two of them are the same, are placed in different positions, which in the view of the Opposition Division leads to a different overall impression of the signs. Additionally, the sings differ on account of the type-font and figurative element of the contested sign. Although, these elements are of reduced impact on the perception of the contested sign, such elements cannot be ignored completely. In the view of the Opposition Division the differences of the signs outbalance the existing similarities.

Considering all the above, even assuming that the goods are identical, that for some of the goods the relevant public may pay only an average degree of attention, and that for parts of the public a conceptual comparison is not possible, there is no likelihood of confusion. Therefore the opposition must be rejected.

In its submissions dated 01/06/2020 the opponent refers not only to the earlier mark which has been the subject of the above mentioned analysis, but also to the earlier European Union trade mark registration No 10 327 931 (figurative mark). Irrespective of the question whether the opposition was admissible for this mark, which was not identified during the three months period for filing the opposition, the Opposition Division notes that this earlier right, being of figurativ nature, is even less similar to the contested sign. As the opposition has been already rejected despite an assumed identity between the relevant goods the outcome could not be different.

 

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

Begoña URIARTE VALIENTE

Holger Peter KUNZ

Christian STEUDTNER

 

 

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.