OPPOSITION No B 3 111 558

200 Fahrenheit B.V., Oudeweg 101, 2031 CC Haarlem, Netherlands (opponent), represented by RISE, Jan Huijgenstraat 3, 2012 VC Haarlem, Netherlands (professional representative)

a g a i n s t

Rui Zhang, Kuhstrasse 12, 48143 Münster, Germany (applicant).

On 23/03/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 111 558 is partially upheld, namely for the following contested goods:

Class 11: Burners, boilers and heaters; cooking, heating, cooling and preservation equipment, for food and beverages; drying installations; filters for industrial and household use; flues and installations for conveying exhaust gases; heating, ventilating, and air conditioning and purification equipment (ambient); industrial treatment installations; lighting and lighting reflectors; personal heating and drying implements; refrigerating and freezing equipment; regulating and safety accessories for water and gas installations; sanitary installations, water supply and sanitation equipment.

Class 20: Containers, and closures and holders therefor, non-metallic; furniture and furnishings; ladders and movable steps, non-metallic; statues, figurines, works of art and ornaments and decorations, made of materials such as wood, wax, plaster or plastic, included in the class.

Class 21: Articles for the care of clothing and footwear; household utensils for cleaning, brushes; cosmetic and toilet utensils; statues, figurines, plaques and works of art, made of materials such as porcelain, terra-cotta or glass, included in the class; tableware, cookware and containers.

2. European Union trade mark application No 18 140 204 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 18 140 204, (figurative mark), namely against all the goods in Classes 11, 20 and 21. The opposition is based on, inter alia, Benelux trade mark registration No 1 387 941, (figurative 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.

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 Benelux trade mark registration No 1 387 941.

a) The goods

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

Class 8: Cutlery; knives, spoons and forks; knife blocks; hand tools for camping; camping equipment, namely shovels, axes, mallets and pullers for tent pegs.

Class 11: Apparatus and installations for lighting, heating, steam generating, cooking, cooling, drying, ventilating, water supply and sanitary purposes; apparatus for lighting, heating and cooking purposes; electric coffee percolators; petrol-fired and propane-fired cooking apparatus; lanterns and lamps; candle lanterns; lantern lighters, lantern tripods and butane lighters; electric and battery-powered lamps; electric and battery operated spot lights; clamp lights; incandescent mantles; heaters, including portable; electric torches; portable cooling apparatus for food storage and transport; refrigerators; portable ice chest electric; chemical toilets; outdoor showers; and fuel filters for camp stoves; sink units; barbecues, barbecue grills and parts and accessories therefor, namely barbecue covers, apparatus for grilling, connections for gas containers, grill grates, warming racks and buffet heaters, charcoal barbecues, side burners, plates of cast iron and steel, gas burners for barbecue grills and regulators for barbecue grills.

Class 18: Bags; suitcases; backpacks; backpacks with frame; duffel bags for traveling; large carrier bags; snap fasteners, closures and eyelets sold as an integral part of bags; backpack straps.

Class 20: Sleeping pads; air mattresses; mattresses; cushions; furniture; metal furniture and furniture for camping; beds, bedsteads; tables; seats and stools; cupboards; portable camping tables and cases comprising work surfaces; plastic fasteners; hand-held mirrors [toilet mirrors]; tent pegs, not of metal.

Class 21: Kitchenware; household utensils and crockery; glassware, porcelain and earthenware, not included in other classes; multifunctional household crockery; drinking cups; cutlery trays; cups; pans; pots; plates and bowls; plastic ice cube molds; bottles; sports bottles, flasks; lap bags; field bottles; containers for beverage cans; squeeze bottles, cup dispensers; drinking glasses; ladles; spatulas; waste bins; grill racks; crockery, games; cooking and eating utensils consisting of plates, pots, pans, cups; non-electric percolators; egg cartons; salt and pepper cans; toothbrushes and soap dishes and holders; toothbrush boxes; drying racks for laundry; bottle openers; hoppers; portable water carriers; non-electric grills; non-electric coffee apparatus; thermally insulated containers for food and drink; coolers and jars of both rigid material and fabrics for use at home, during picnics and at camping; cool boxes and bags; brushes (excluding brushes); spice holders; holders for grill accessories; cutting boards; brushes for basting meat; rollers [kitchen utensils]; meat cutlery; grill tongs; drip trays; woks for barbecue grills; grill skewers.

Class 22: Tents; fly sheet for tents; groundsheets, canopies; tarpaulins; tent bags; covers for generators of electricity; tarpaulin holders; tent wires and ropes; guy lines; guy ropes; retaining straps; straps for fastening tents, awnings and tent fabric to the ground; resealable storage bags made of nylon and polyethylene for the storage of clothing and household goods; washing lines; cord; hammocks; synthetic fill for sleeping bags.

Class 24: Fabrics and textile products not included in other classes; blankets and tablecloths; towels, tablecloths.

Class 28: Games, toys and playthings; sporting goods.

The contested goods are the following:

Class 11: Burners, boilers and heaters; cooking, heating, cooling and preservation equipment, for food and beverages; drying installations; filters for industrial and household use; flues and installations for conveying exhaust gases; heating, ventilating, and air conditioning and purification equipment (ambient); industrial treatment installations; lighting and lighting reflectors; personal heating and drying implements; refrigerating and freezing equipment; regulating and safety accessories for water and gas installations; sanitary installations, water supply and sanitation equipment; sun tanning appliances.

Class 20: Animal housing and beds; containers, and closures and holders therefor, non-metallic; displays, stands and signage, non-metallic; furniture and furnishings; ladders and movable steps, non-metallic; statues, figurines, works of art and ornaments and decorations, made of materials such as wood, wax, plaster or plastic, included in the class.

Class 21: Articles for the care of clothing and footwear; cosmetic and toilet utensils; household utensils for cleaning, brushes and brush-making materials; statues, figurines, plaques and works of art, made of materials such as porcelain, terra-cotta or glass, included in the class; tableware, cookware and containers; unworked and semi-worked glass, not specified for use.

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).

However, the term ‘namely’, used in the opponent’s list of goods to show the relationship of individual goods and services to a broader category, is exclusive and restricts the scope of protection only to the goods specifically listed.

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.

It should be pointed out that the comparison of the goods and services must be based on the wording indicated in the respective lists of goods and/or services. The actual or intended use of the goods and services not stipulated in the list of goods and/or services is not relevant for the examination (16/06/2010, T-487/08, Kremezin, EU:T:2010:237, § 71).

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 11

The contested cooking, heating, cooling equipment and also drying installations as well as sanitary installations, water supply and sanitation equipment are identically listed (even with a different wording), on the other hand burners, boilers and heaters; preservation equipment, for food and beverages; personal heating and drying implements; regulating and safety accessories for water installations are included in the broad categories of the opponent’s apparatus and installations for heating cooking, cooling, drying, ventilating, water supply and sanitary purposes. Therefore, they are identical.

The contested filters for industrial and household use are similar to apparatus for ventilating as they usually coincide in producer, relevant public and distribution channels. Furthermore, they are complementary.

The contested flues and installations for conveying exhaust gases are included in the broad category of the opponent’s installations for ventilating purposes. Therefore, they are identical.

The contested heating, ventilating, and air conditioning and purification equipment (ambient) are included in the broad categories of, or overlap with, the opponent’s apparatus and installations for heating, cooling, drying, ventilating purposes. Therefore, they are identical.

The contested lighting and lighting reflectors are identical to the opponent’s apparatus for lighting purposes, either because they are identically contained in both lists (including synonyms) or because the opponent’s goods include, are included in, or overlap with, the contested goods.

The contested refrigerating and freezing equipment include, as broader category the opponent’s refrigerators. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested industrial treatment installations overlap with, or are included in, the opponent’s apparatus and installations for water supply and sanitary purpose. Both sets of goods can be used for industrial, large water supply and treatment purposes in the respective industry. Therefore, they are identical.

The contested regulating and safety accessories for gas installations may have the same manufacturers, distribution channels and users as the opponent’s connections for gas containers since they are both accessories. Furthermore, the goods may be complementary. The goods are at similar.

The contested sun tanning appliances are tanning apparatus such as sun lamps, sunbeds or devices with ultraviolet rays in order to induce an artificial suntan. These goods have a different nature and purpose to any of the opponent’s goods in Classes 8, 11, 18, 20, 21, 22, 24, 28, including apparatus for lighting in Class 11 as the lamps used in these goods and those for sun tanning appliances have different characteristics and purposes and are aimed at a different public. They have different distribution channels and points of sale and they are not in competition with or complementary to each other. They are dissimilar.

Contested goods in Class 20

The contested closures and holders therefor, non-metallic include as a broader category, or overlap with, the opponent’s plastic fasteners.

The contested containers, non-metallic have similar nature as the opponent’s thermally insulated containers for food and drink in Class 21. They may have the same manufacturers, distribution channels and consumers. The goods are similar.

The contested furniture and furnishings are identical to the opponent’s furniture, either because they are identically contained in both lists (including synonyms) or because the opponent’s goods include the contested goods.

The contested statues, figurines, works of art and ornaments and decorations, made of materials such as wood, wax, plaster or plastic, included in the class are similar to furniture. It is common for furniture stores to offer for sale various types of works of art, such as statues, figurines, ornaments, to enable purchasers of furniture to buy them at the same time to achieve an accomplished and harmonious decorative outfit. In addition, these goods are commonly advertised together in the same catalogues and specialist interior design magazines. Therefore, consumers may believe that the responsibility for the production of these goods lies with the same undertaking, they are directed at the same public and often share the same distribution channels.

The contested ladders and movable steps, non-metallic are similar to a low degree to the opponent’s furniture as they coincide in purpose. They usually coincide in relevant public and distribution channels.

The contested animal housing and beds; displays, stands and signage, non-metallic have a different nature and purpose to any of the opponent’s goods in Classes 8, 11, 18, 20, 21, 22, 24, 28. They do differ in manufacturers. They have different distribution channels and points of sale and they are not in competition with or complementary to each other. They are dissimilar.

Contested goods in Class 21

The contested articles for the care of clothing and footwear include, as a broader category the opponent’s drying racks for laundry. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested household utensils for cleaning are included in the broad category of the opponent’s household utensils. Therefore, they are identical.

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

The contested tableware, cookware and containers include, as broader categories, the opponent’s respective plates and bowls; pans; containers for beverage cans. Since the Opposition Division cannot dissect ex officio the broad categories of the contested goods, they are considered identical to the opponent’s goods.

The contested statues, figurines, plaques and works of art, made of materials such as porcelain, terra-cotta or glass, included in the class are similar to furniture as they usually coincide in producer, relevant public and distribution channels.

The contested cosmetic and toilet utensils are at least similar to the opponent’s toothbrushes as they have the same purpose. They usually coincide in relevant public and distribution channels.

The contested brush-making materials; unworked and semi-worked glass, not specified for use have a different nature and purpose to any of the opponent’s goods in Class 8, 11, 18, 20, 21, 22, 24, 28. They have different distribution channels and points of sale and they are not in competition with or complementary to each other. They are dissimilar.

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 various degrees are directed at the public at large at business customers with specific professional knowledge or expertise.

The degree of attention is average.

c) The signs

Earlier trade mark	Contested sign

The relevant territory is the Benelux.

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).

As regards the marks, although they are composed of one verbal element, the relevant consumers, when perceiving a verbal sign, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58).

The earlier mark is a figurative mark composed of the word ‘CAMPGURU’, written in bold upper-case letters, and a figurative element above it, depicting three stylised trees with the shape of a tent in the middle.

The word ‘CAMPGURU’ is composed of the conjoined elements ‘CAMP’ and ‘GURU’. The element ‘CAMP’ refers to ‘an outdoor area with buildings, tents, or caravans where people stay on holiday; a collection of tents or caravans where people are living or staying, usually temporarily while they are travelling; if you camp somewhere, you stay or live there for a short time in a tent or caravan, or in the open air’ (information extracted from Collins English Dictionary on 10/03/2021 at https://www.collinsdictionary.com/dictionary/english/camp). This is a common English term understood widely in the relevant territory. Furthermore, this word also exists with the same meaning in French (https://www.larousse.fr/dictionnaires/francais/camp/12540). In Dutch it is written as ‘kamp’ (https://dictionary.cambridge.org/dictionary/dutch-english/kamp). In relation to the relevant goods which are/can be all used for/ during camping, the element ‘CAMP’ is non-distinctive.

The term ‘GURU’ will be understood as ‘a leading authority in a particular field (information extracted from Collins English Dictionary on 10/03/2021 at https://www.collinsdictionary.com/dictionary/english/guru). This is a common English term understood widely in the relevant territory. It is transcribed in French as ‘gourou’ (https://www.larousse.fr/dictionnaires/francais/gourou/37664) and in Dutch as ‘goeroe’ (https://www.vandale.nl/gratis-woordenboek/nederlands/betekenis/goeroe#.YE9t1Od7mUk) and due to their close equivalents it will be also understood in these languages. The Opposition Division considers that, although the word ‘GURU’ does not directly describe the goods or any of their essential characteristics, it is allusive to goods coming from a leading expert or an undertaking with expertise in a particular field. Therefore, its distinctiveness is slightly below average, contrary to the arguments of the parties.

As a whole, the word element of the earlier mark will be perceived in connection with the relevant goods, as laudatory, namely that they come from a company that is the expert in goods for persons camping accommodation and activities.

Regarding the figurative element of the earlier mark, 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; 19/12/2011, R 233/2011‑4 Best Tone (fig.) / BETSTONE, § 24; 13/12/2011, R 53/2011‑5, Jumbo (fig.) / DEVICE OF AN ELEPHANT (fig.), § 59). Moreover, the triangular shape of the tree placed in the centre is evocative of a tent on a campsite and therefore it is weak in relation to the goods.

The contested mark is a figurative mark consisting of a stylised conjoined word(s) ‘HomeGuru’. The term’ HOME’, present in the contested mark is considered a basic English term (14/07/2016, T 345/15, KRISTAL / HOME CRISTAL, EU:T:2016:405, § 56, 60) understood throughout the European Union. It means ‘the place or a place where one lives, a house or other dwelling (information extracted from Collins English Dictionary on 10/03/2021 at https://www.collinsdictionary.com/dictionary/english/home). According to the applicant, the word HOME, when used in internet shopping platforms, designates a home-products category of the relevant goods and should be considered non-distinctive. The Opposition Division concurs with the applicant, that in relation to the relevant goods the word ‘HOME’ is non-distinctive. The above considerations regarding the meaning and the distinctiveness of the word ‘GURU’ of the earlier mark equally apply to the word ‘GURU’ of the contested mark. The typeface and colour used are merely embellishments and will not affect the distinctiveness of the mark.

As a whole, the verbal element ‘HomeGuru’ of the contested mark is perceived, considering the relevant goods as laudatory, namely that they come from a company that is expert in goods specially designed for personal, home and household use.

Visually, the signs coincide in the element ‘GURU’, which constitutes the second element of both signs. They differ in the initial elements ‘CAMP’ and ‘HOME’, which are non-distinctive, and in the figurative element of the earlier mark and stylisation of the contested mark, as described above. Given that the distinctiveness of the coinciding element is slightly below average, the signs are considered visually similar to a low degree.

Aurally, irrespective of the pronunciation rules in the languages of the relevant territory, the pronunciation of the signs coincides in the sound of the element ‘GURU’, present identically in both signs. The signs have the same rhythm (three syllables) and intonation. The pronunciation differs in the sound of the elements ‘CAMP’ and ‘HOME’, which are both pronounced in one syllable. Given the above considerations regarding the distinctiveness of the signs’ elements, the signs are aurally similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. The signs are conceptually similar to a high degree since they coincide in the concept conveyed by the element ‘GURU’ and both signs refer to an expertise/ authority in human dwellings.

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 applicant 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. Although the earlier mark is composed of elements which are non-distinctive or which have a slightly below average degree of distinctiveness, as explained above in section c) of this decision, their unusual combination results that, as a whole, 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).

The conflicting goods are partly identical, partly similar to various degrees and partly dissimilar. They target the public at large and business professionals who will display an average level of attention.

The inherent distinctiveness of the earlier mark is normal.

The signs are visually similar to a low degree, aurally similar to an average degree and conceptually similar to a high degree. They have the same structure since they are composed of the non-distinctive elements ‘CAMP’ and ‘HOME’, respectively, joined together with the element ‘GURU’.

Despite the allusive character of the coinciding element ‘GURU’, the differences between the signs lying in weak or non-distinctive and/or secondary elements are insufficient to distinguish between the signs.

The consideration that the consumers pay more attention to the beginning of the mark also cannot prevail in all cases and cannot, in any event, undermine the principle that an examination of the similarity of the signs must take account of the overall impression produced by those signs, since the average consumer normally perceives a sign as a whole and does not examine its individual details (27/06/2012, T‑344/09, Cosmobelleza, EU:T:2013:40, § 52). Indeed, 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.

In the present case, due to the coinciding element ‘GURU’ and the identical structure of the signs, consumers may believe that the contested sign, ‘HOMEGURU’, constitutes a new product line of the earlier mark ‘CAMPGURU’, the former being intended for goods that are specifically designed for people’s homes, and the second being intended for goods that are specifically designed for use when camping. Consequently, they are likely to confuse the origin of the goods at issue by assuming that they come from the same or economically linked undertakings.

The applicant argues that its sign has been registered previously in China and by Amazon.com, and filed various items of evidence to substantiate this claim.

The right to an EUTM begins on the date when the EUTMA is filed and not before, and from that date on the EUTMA has to be examined with regard to opposition proceedings. Furthermore, registrations made in third countries cannot be taken into account in the present proceedings in respect of the European Union. It is also noted, that a registration in Amazon.com does not constitute a registration of a trade mark, since private companies lack the authority to grant trade mark protection.

Therefore, when considering whether or not the EUTMA falls under any of the relative grounds for refusal, events or facts that happened before the filing date of the EUTMA are irrelevant because the rights of the opponent, insofar as they predate the EUTMA, are earlier than the applicant’s EUTMA.

The applicant refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

While the Office does have a duty to exercise its powers in accordance with the general principles of European Union law, such as the principle of equal treatment and the principle of sound administration, the way in which these principles are applied must be consistent with respect to legality. It must also be emphasised that each case must be examined on its own individual merits. The outcome of any particular case will depend on specific criteria applicable to the facts of that particular case, including, for example, the parties’ assertions, arguments and submissions. Finally, a party in proceedings before the Office may not rely on, or use to its own advantage, a possible unlawful act committed for the benefit of some third party in order to secure an identical decision.

In view of the above, it follows that, even if the previous decisions submitted to the Opposition Division are to some extent factually similar to the present case, the outcome may not be the same as it is the case here, due to different factual aspects.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion, including likelihood of association, on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s Benelux trade mark registration.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to those of the earlier trade mark. Due to the sufficient similarity between the marks, the contested trade mark must be rejected also for goods found similar to a low degree.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) 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 marks:

European Union trade mark registration No 18 084 745 , registered for goods in:

Class 11: Apparatus and installations for lighting, heating, steam generating, cooking, cooling, drying, ventilating, water supply and sanitary purposes; apparatus for lighting, heating and cooking purposes; electric coffee percolators; petrol-fired and propane-fired cooking apparatus; lanterns and lamps; candle lanterns; lantern lighters, lantern tripods and butane lighters; electric and battery-powered lamps; electric and battery operated spot lights; clamp lights; incandescent mantles; heaters, including portable; electric torches; portable cooling apparatus for food storage and transport; refrigerators; portable ice chest electric; chemical toilets; outdoor showers; and fuel filters for camp stoves; sink units; barbecues, barbecue grills and parts and accessories therefor, namely barbecue covers, apparatus for grilling, connections for gas containers, grill grates, warming racks and buffet heaters, charcoal barbecues, side burners, plates of cast iron and steel, gas burners for barbecue grills and regulators for barbecue grills.

Class 20: Sleeping pads; air mattresses; mattresses; cushions; furniture; metal furniture and furniture for camping; beds, bedsteads; tables; seats and stools; cupboards; portable camping tables and cases comprising work surfaces; plastic fasteners; hand-held mirrors [toilet mirrors]; tent pegs, not of metal.

Class 22: Tents; fly sheet for tents; groundsheets, canopies; tarpaulins; tent bags; covers for generators of electricity; tarpaulin holders; tent wires and ropes; guy lines; guy ropes; retaining straps; straps for fastening tents, awnings and tent fabric to the ground; resealable storage bags made of nylon and polyethylene for the storage of clothing and household goods; washing lines; cord; hammocks; synthetic fill for sleeping bags.

European Union trade mark registration No 15 281 975, ‘ GRILL GURU’, registered for goods in:

Class 11: Apparatus for cooking, including barbecues, barbecue grills and parts and accessories therefor, namely grill covers, apparatus for grilling, connections for gas containers, grill grates, warming racks and baskets, charcoal barbecues, side burners, worktables for barbecue grills, plates of cast iron and steel, gas burners for barbecue grills, controllers for barbecue grills, spits.

Class 21: Household, kitchen and barbecue utensils and containers (not of precious metal or coated therewith); brushes (except paintbrushes); glassware, porcelain and earthenware not included in other classes; condiment holders; holders for grill accessories; carving boards; basting brushes; fish slices; spatulas; barbecue tongs; drip trays; pizza shovels, woks for barbecue grills; pans for barbecue grills.

Since the earlier marks are either identical (EUTM No 18 084 745) to the one which has been compared above or less similar to the contested sign (No 15 281 975 since it contains a word, ‘GRILL’, which is not present in the contested mark), and they cover the same or a narrower scope of goods than the one which has been compared above, the outcome cannot be different with respect to goods for which the opposition has already been rejected. Therefore, 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

Martina GALLE

Erkki MÜNTER

Félix ORTUÑO LÓPEZ

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.