OPPOSITION Nо B 3 112 020

 

Dometic UK Awnings Limited, Little Braxted Hall, Little Braxted, Witham CM8 3EU, United Kingdom (opponent), represented by Dummett Copp LLP, 25 The Square, Martlesham Heath, Ipswich IP5 3SL, United Kingdom (professional representative) 

 

a g a i n s t

 

Shenzhen LiXiangge Technologies Co., Ltd., 201, Lane 7, Nankeng North, Bantian Street, Longgang District, Shenzhen, People’s Republic of China (applicant), represented by Isabelle Bertaux, 55 Rue Ramey, 75018 Paris, France (professional representative).

On 04/08/2021, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 112 020 is partially upheld, namely for the following contested goods:

 

Class 11: All the goods in this Class.   Class 22: All the goods in this Class.   Class 24: Mosquito nets; pillowcases; sleeping bag liners; pillow shams; sleeping bags for babies; baby buntings; sleeping bags; covers [loose] for furniture; loose covers for furniture; furniture coverings of textile.

2.	European Union trade mark application No 18 133 922 is rejected for all the above goods. It may proceed for the remaining goods.

 

3.	Each party bears its own costs.

REASONS

 

On 19/02/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 133 922 for the word mark ‘Campaholic’. The opposition is based on European Union trade mark registration No 11 928 884 for the figurative mark , European Union trade mark registration No 15 175 946 for the word mark ‘KAMPA’ and United Kingdom national trade mark registration No 2 498 459 for the figurative mark . The opponent initially invoked Article 8(1)(b) and Article 8(5) EUTMR, however, Article 8(5) EUTMR was later renounced. Furthermore, the opponent initially invoked also Article 8(4) EUTMR with regard to its earlier non-registered trade marks for the word mark ‘KAMPA’ and for the figurative mark used in the territory of the United Kingdom.

PERLIMINARY REMARK CONCERNING BREXIT

On 01/02/2020, the United Kingdom withdrew from the European Union subject to a transition period until 31/12/2020. During this transition period EU law remained applicable in the United Kingdom. As from 01/01/2021, UK rights ceased ex-lege to be earlier rights protected ‘in a Member State’ for the purposes of proceedings based on relative grounds. The conditions for applying Article 8(1), (4) and (5) EUTMR, worded in the present case, must also be fulfilled at the time of taking the decision.

The opposition no longer has a valid basis in relation to UK national trade mark registration No 2 498 459 and earlier non-registered trade marks for the word mark ‘KAMPA’ and for the figurative mark . Therefore, it must be dismissed in this regard. It should be also noted that the opponent put forward that ‘following the end of the Brexit transition period, we believe the UK registration will have fallen away as a conflicting earlier right, and this opposition will be considered to rely only on the aforementioned EU registrations’.

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 15 175 946 for the word mark ‘KAMPA’.

a) The goods and services

 

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

Class 4: Fuels and illuminants; gas cartridges, barbecue fuel, charcoal fuel, charcoal briquettes, firelighters, kindling wood.

Class 7: Air pumps, electric pumps; parts and fittings for all the aforesaid goods included in this class.

Class 11: Apparatus for lighting, heating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes; friction lighters for igniting gas; gas lighters; lamps, including flash lights, bicycle lights, torches for lighting, electric pocket torches, diving lights, head lamps, LED lamps, gas lamps, oil lamps, portable lamps, safety lamps, overhead lamps; lamp reflectors; pocket warmers; immersion heaters; ultraviolet ray lamps, not for medical purposes; water filtering apparatus; water sterilizers, water heaters, electric water heaters, gas water heaters, solar water heaters, portable water heaters, cool boxes (electric), chilling containers, refrigerating containers, gas heaters, gas space heaters, portable electric heaters for use in tents, caravans and motorhomes, electric blankets, dehumidifiers, air dehumidifiers, portable toilets; gas regulators, barbecues, gas barbecues, charcoal barbecues, portable gas stoves, gas ovens, portable gas ovens, gas hobs, electric ovens, portable electric hobs, electric hobs, hobs, toasters, electric toasters, electric kettles, water dispensers; parts and fittings for all the aforesaid goods included in this class.

Class 12: Trolleys, covers for motor cars, covers for caravans, covers for trailers, covers for trailer tents; parts and fittings for all the aforesaid goods included in this class.

Class 20: Furniture; sleeping bags; folding furniture; beds and cots, air beds, air cushions, air pillows and air mattresses; roll mats, pillows, mattresses; tent pegs and tent poles, folding beds; camp beds; air mattresses, inflatable mattresses, foam camping mattresses, foam mattresses, picnic baskets, portable water carriers (containers) made of plastics, portable waste water carriers (containers) made of plastics, non-metal wheel chocks; folding chairs; folding tables; parts and fittings for all the aforesaid goods included in this class.

Class 21: Household and kitchen utensils and containers; cooking pots and pans; cork screws; crockery, dishes; glasses and drinking vessels; insulating flasks; lunch boxes; picnic baskets; portable coolers; cool boxes; vacuum flasks, insulated containers, jugs, boxes, chests, mugs, beakers and bags, bowls, plastic bowls, washing up bowls, picnic boxes and bags (fitted), picnic crockery, insulated backpacks, insulated bottle bags, steel vacuum flasks and carafes, insulated carafes and cafetieres, glassware, glass vessels; culinary and domestic utensils and containers, bottles, flasks and containers, ice containers, utensils for dispensing liquids, glass stoppers, tea infusers, tea urns, coffee urns, clothes drying racks, buckets, plastic buckets, brushes for cleaning, barbecue mitts, whistling kettles, non-electric kettles, water dispensers; parts and fittings for all the aforesaid goods included in this class.

Class 22: Tents, awnings, tarpaulins and unfitted coverings; awnings for caravans, awnings for vehicles, awnings for motorhomes, canopies, ground sheets, fly sheets; washing lines, waterproof coverings for camps, waterproof covers, hammocks, rope ladders, marquees (textile), ropes, string, nets; washing lines, windbreaks; parts and fittings for all the aforesaid goods included in this class. 

The contested goods are the following:

Class 11: Bicycle lights; electric flashlights; searchlights; portable headlamps; lanterns for lighting; roasting spits; gas burners; cooking stoves; bread toasters; water filtering apparatus; stoves [heating apparatus]; lighters; gas lighters.

Class 22: Ropes; hemp bands; string; belts, not of metal, for handling loads; car towing ropes; ropes, not of metal; tarpaulins; hammocks; network; tents; awnings of synthetic materials; drop cloths; sacks for the transport and storage of materials in bulk; bags [envelopes, pouches] of textile, for packaging; awnings of textile; covers for camouflage.

Class 24: Bath mitts; household linen; towels of textile; serviettes of textile; handkerchiefs of textile; face towels of textile; sheets [textile]; mosquito nets; pillowcases; sleeping bag liners; pillow shams; sleeping bags for babies; baby buntings; sleeping bags; covers [loose] for furniture; loose covers for furniture; furniture coverings of textile.

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.

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

 

The term ‘including’, used in the opponent’s list of goods, indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T-224/01, Nu-Tride, EU:T:2003:107).

 

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.

Contested goods in Class 11

Gas lighters; water filtering apparatus are identically included in both lists of goods.

The contested bicycle lights; electric flashlights; searchlights; portable headlamps are included in the broad category of, or overlap with, the opponent’s lamps, including flash lights, bicycle lights, torches for lighting, electric pocket torches, diving lights, head lamps, LED lamps, gas lamps, oil lamps, portable lamps, safety lamps, overhead lamps. Therefore, they are identical.

The contested lanterns for lighting are included in the broad category of the opponent’s apparatus for lighting. Therefore, they are identical.

The contested roasting spits; gas burners; cooking stoves; bread toasters are included in the broad category of the opponent’s apparatus for cooking. Therefore, they are identical.

The contested stoves [heating apparatus] are included in the broad category of the opponent’s apparatus for heating. Therefore, they are identical.

The contested lighters include, as a broader category, the opponent’s gas lighters. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

Contested goods in Class 22

Ropes; tarpaulins; string; hammocks; tents are identically included in both lists of goods (including synonyms).

The contested car towing ropes; ropes, not of metal are included in the broad category of the opponent’s ropes. Therefore, they are identical.

The contested awnings of synthetic materials; awnings of textile are included in the broad category of the opponent’s awnings. Therefore, they are identical.

The contested network overlaps with the opponent’s nets. Therefore, they are identical.

The contested drop cloths; covers for camouflage overlap with the opponent’s unfitted coverings. Therefore, they are identical.

The contested hemp bands; belts, not of metal, for handling loads are similar to the opponent’s ropes. They can coincide in their purpose, distribution channels, producers and method of use.

The contested sacks for the transport and storage of materials in bulk; bags [envelopes, pouches] of textile, for packaging are similar to a low degree to the opponent’s bags in Class 21. They usually coincide in producer, relevant public and distribution channels. Furthermore, they are complementary.

Contested goods in Class 24

The contested sleeping bags for babies; baby buntings; sleeping bags are included in the broad category of the opponent’s sleeping bags (classified in Class 20 in the Nice Classification of 2016 – now in Class 24). Therefore, they are identical.

The contested mosquito nets are similar to the opponent’s nets in Class 22. They have the same purpose. Furthermore, they can coincide in their distribution channels and producers. It should be clarified that the nets in Class 22 include nets for protective use in gardening and have the same purpose of protecting against animals.

The contested pillowcases; sleeping bag liners; pillow shams are similar to the opponent’s pillows in Class 20. They have the same purpose. Furthermore, they can coincide in their distribution channels and public. Furthermore, they are complementary.

The contested covers [loose] for furniture; loose covers for furniture; furniture coverings of textile are similar to the opponent’s furniture in Class 20. They have the same purpose and method of use. Furthermore, they can coincide in their distribution channels and producers.

The contested household linen; sheets [textile] are similar to a low degree to the opponent’s beds in Class 20. They can coincide in their distribution channels and producers.

The contested bath mitts; household linen; towels of textile; serviettes of textile; handkerchiefs of textile; face towels of textile; sheets [textile] are dissimilar to the opponent’s goods. They differ not only in their nature and purpose, but also in their distribution channels, producers and method of use. Furthermore, they are not in competition nor necessarily complementary.

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 or similar (to varying degrees) are directed at the public at large and at business consumers. The degree of attention may vary from average to above average, depending on the specialised nature of the goods, the frequency of purchase and their price.

c) The signs

 

KAMPA	Campaholic
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).

Both signs are word marks as can be seen above. Therefore, it is irrelevant whether they are written in upper- or lower-case letters unless the word mark combines upper- and lower-case letters in a manner that departs from the usual way of writing (irregular capitalisation), which is not the case here.

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 element of the earlier mark ‘Kampa’ and the verbal components of the contested sign ‘Campa’ and ‘-holic’ can be associated with particular meanings in certain territories, for example in those countries where Dutch is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the Dutch-speaking part of the public.

The verbal element ‘Kampa’ as such is meaningless. However, it might be associated by the Dutch-speaking public with the word ‘KAMP’ which means ‘camp’ in Dutch, that is, ‘an outdoor area with buildings, tents, or caravans where people stay on holiday’ (extracted from Collins Dictionary at https://www.collinsdictionary.com/dictionary/english/camp on 09/07/2021).

The component ‘Camp’ will be understood as ‘kamp’ (with the meaning indicated above). It is because these two words are quite similar (at least when pronounced as the sound of the ‘c’ and ‘k’ are the same) and also because the command of the English language in the Dutch society is well established.

The ending ‘aholic’ in the contested sign will be understood as ‘indicating a person having an abnormal desire for or dependence on’ (extracted from Collins Dictionary at www.collinsdictionary.com/dictionary/english/holic on 09/07/2021). Since this element is a suffix used to form a noun within the contested sign, it has a limited degree of distinctiveness.

Therefore, the whole verbal element ‘Campaholic’ will be seen as indicating a camping fan, someone addicted to camping.

The element ‘KAMPA’ of the earlier mark and the component ’Camp’ of the contested sign will be associated with the same meaning as explained above. Bearing in mind that the relevant goods are camp-related, these elements have a limited distinctiveness for part of these goods, for example portable headlamps, tents and sleeping bags. With regard to the remaining goods, for instance lighters, network or furniture coverings of textile, these verbal elements/components are normally distinctive as they do not allude or inform about their characteristics.

Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Visually, the signs coincide in the string of letters ‘ampa’ in the same position in both signs. However, they differ in their first letters, namely ‘K’ (earlier mark) and ‘C’ (contested sign) and also the last five letters of the contested sign, that is, ‘holic’.

Therefore, bearing in mind the above principles and assertions on the distinctiveness of the elements contained in the signs, they are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘KAMPA’ of the earlier mark and ‘Campa’ of the contested sign as the letters ‘K’ and ‘C’ will be pronounced identically. However, the marks differ in the pronunciation of the last letters ‘holic’.

Therefore, bearing in mind the above principles and assertions on the distinctiveness of the elements contained in the signs, they are aurally similar to at least an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs will be associated with a similar meaning, the signs are conceptually highly similar.

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 claimed that the earlier trade mark enjoys enhanced distinctiveness/reputation but did not file any evidence in order to prove such a claim.

 

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark is limited with regard to some of the goods. The mark has a normal degree of distinctiveness for the remaining part of the relevant territory, where it has no meaning in relation to the goods in question.

e) Global assessment, other arguments and conclusion

A likelihood of confusion (including a likelihood of association) 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.

A global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular, similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 20; 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 24; 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).

The goods are partly identical and partly similar (to varying degrees) and partly dissimilar. They target the public at large and the professional public. The degree of attention varies from average to above average. The earlier mark as a whole has either a limited distinctiveness or is normally distinctive (this depends on the goods in question).

The marks are visually similar to an average degree, aurally similar to at least an average degree and conceptually highly similar.

In addition, account should also be taken of the fact that average consumers only rarely have the chance to make a direct comparison between the different marks and must place their trust in the imperfect picture of them that they have kept in their minds (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Even consumers with an above average degree of attention need to rely on the their imperfect recollection of trade marks (21/11/2013, T-443/12, ancotel, EU:T:2013:605, § 54).

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.

Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49) given the similarities in the beginnings and the addition of the suffix ‘aholic’ in the contested sign.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Dutch-speaking part of the public and, therefore, the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration
No 15 175 946 for the word mark ‘KAMPA’. 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.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar (to varying degrees) to those of the earlier trade mark.

 

The rest of the contested goods are dissimilar. As the identity or similarity of goods and services is a necessary condition for the application of Article 8(1)(b) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

The opponent has also based its opposition on the following earlier trade mark, namely European Union trade mark registration No 11 928 884 (registered for the following goods, that is, furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics (Class 20), household or kitchen utensils and containers; sponges; brushes (except paint brushes); brush-making materials; articles for cleaning purposes; steelwool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes (Class 21) and ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes); padding and stuffing materials (except of rubber or plastics); raw fibrous textile materials (Class 22).

 

The other earlier right invoked by the opponent is less similar to the contested mark. This is because it is depicted in a stylised letters. Moreover, it covers a narrower scope of the goods. Therefore, the outcome cannot be different with respect to goods for which the opposition has already been rejected; no likelihood of confusion exists with respect to those 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. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

 

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

 

 

 

The Opposition Division

 

 

Helen Louise MOSBACK

Michal KRUK

Chantal VAN RIEL

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.