OPPOSITION Nо B 3 115 071

Mikael Tarighi, Kungshöjdsgatan 11A, SE‑41120 Göteborg, Sweden (opponent), represented by Vamo Varumärkesombudet AB, Kungsportsavenyen 21, SE‑411 36 Göteborg, Sweden (professional representative)

a g a i n s t

Chimi AB, Krukmakargatan 31, SE‑118 51 Stockholm, Sweden (applicant), represented by Otmore Limited, No 2, Geraldu Farrugia Street, ZBG 4351 Zebbug, Malta (professional representative).

On 26/08/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 115 071 is upheld for all the contested goods, namely:

Class 24: Sheets [textile]; bed covers; furniture coverings of textile; curtains; iron-on cloth labels; textile tablecloths; towelling [textile]; tea cloths; bed linen and table linen; duvets; felt; covers for cushions; pillowcases; curtain fabric; interior decoration fabrics; replacement seat covers [loose] for furniture; sleeping bag liners; underblankets; comforters.

2. European Union trade mark application No 18 160 509 is rejected for all the contested goods. It may proceed for the remaining goods.

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

REASONS

On 30/03/2020, the opponent filed an opposition against some of the goods of European Union trade mark application No 18 160 509 ‘CHIMI’ (word mark), namely against all the goods in Class 24. The opposition is based on Swedish trade mark registration No 546 562 (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.

a) The goods

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

Class 24: Curtain fabric; interior decoration fabrics; replacement seat covers [loose] for furniture; furniture coverings of plastic; furniture coverings of textile; coverings of textile and of plastic for furniture (unfitted); bean bag covers; canopy covers; sofa covers; protective loose covers for mattresses and furniture; curtains; curtains for showers; ready made curtains; labels (textile -) for identifying linen; labels (textile-) for identifying linen; labels of textile for identifying clothing; labels (textile-) for identifying clothing; labels (textile -) for marking linen; labels (textile-) for marking linen; labels (textile -) for marking clothing; adhesive labels (textile -); tags of textile for attachment to clothing; markers [labels] of cloth for textile fabrics; badges made of fabric material; self-adhesive cloth labels; textile flags used for place settings; printed textile labels; iron-on cloth labels; labels of textile for bar codes; adhesive materials in the form of stickers [textile]; wall fabrics; table linen; textile tablecloths; towelling [textile]; tea cloths; kitchen linen; napery of textile; bed linen and table linen; contour sheets; duvets; disposable bedding of paper; cot blankets; blankets for household pets; sofa blankets; blankets for outdoor use; terry linen; pillow shams; covers for cushions; sleeping bag liners; sleeping bags [sheeting]; sheets [textile]; pillowcases; bed throws; quilts; quilt covers; throws; bed blankets; travelling rugs [lap robes]; bed canopies; bed valances; bed covers; underblankets; comforters.

The contested goods are the following:

Class 24: Sheets [textile]; bed covers; furniture coverings of textile; curtains; iron-on cloth labels; textile tablecloths; towelling [textile]; tea cloths; bed linen and table linen; duvets; felt; covers for cushions; pillowcases; curtain fabric; interior decoration fabrics; replacement seat covers [loose] for furniture; sleeping bag liners; underblankets; comforters.

The contested sheets [textile]; bed covers; furniture coverings of textile; curtains; iron-on cloth labels; textile tablecloths; towelling [textile]; tea cloths; bed linen and table linen; duvets; covers for cushions; pillowcases; curtain fabric; interior decoration fabrics; replacement seat covers [loose] for furniture; sleeping bag liners; underblankets; comforters are identically contained in the opponent’s list of goods.

The contested felt is included in the broad category of, or overlaps with, the opponent’s interior decoration fabrics. Therefore, they are identical.

b) Relevant public – degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods found to be identical are directed at the public at large and at professionals with specific professional knowledge or expertise in the manufacturing industry.

The degree of attention is considered to beaverage.

c) The signs

	CHIMI
Earlier trade mark	Contested sign

The relevant territory is Sweden.

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).

It should also be noted that informative indications that the mark is registered, such as the symbol ‘®’ in the earlier mark, are not considered part of the mark. Consequently, this will not be taken into account in the comparison of the signs.

The common verbal element ‘CHIMI’ is meaningless in the relevant territory. Therefore, it is distinctive.

The earlier mark’s verbal element ‘HOME’ is an English word which refers to ‘the place where one lives permanently, especially as a member of a family or household’ (information extracted from Lexico Oxford Dictionary on 20/08/2021 at https://www.lexico.com/definition/home). It will be understood by the relevant public since the Court has already confirmed that the general public in the Scandinavian countries has at least a basic understanding of English (26/11/2008, T‑435/07, New Look, EU:T:2008:534, § 23). This verbal element is weak in relation to the relevant goods, since it clearly refers to the fact that the goods are meant for home and for household purposes.

As far as the differing typeface of the earlier mark is concerned, even though the letters of the earlier mark are slightly stylised, the typeface used is rather standard and does not contribute to differentiating the signs from one another.

The earlier mark has no element that could be considered clearly more dominant than other elements.

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 and aurally, the signs coincide in their distinctive verbal element ‘CHIMI’ and its sound. They differ in the weak verbal element ‘HOME’ of the earlier mark and its sound, which has no counterpart in the contested sign.

Therefore, the signs are visually and aurally similar to a high degree.

Conceptually, although the relevant public will perceive the meaning of the verbal element ‘HOME’ of the earlier mark as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar. However, the conceptual difference results from a weak element which significantly reduces the impact of this difference between 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, despite the presence of a weak element in the mark, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

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 and services covered are from the same undertaking or economically linked undertakings.

The goods are identical and target the public at large as well as professionals, and the degree of attention is average.

The signs are visually and aurally highly similar on account of their identical and distinctive verbal element ‘CHIMI’. The signs are not conceptually similar. However, the conceptual perception is of little importance since the difference results from a weak element which significantly reduces its impact between the signs as explained above. The earlier mark enjoys an average degree of inherent distinctiveness.

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 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 that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49). In the present case, since the differences between the signs are in the additional weak verbal element ‘HOME’ of the earlier mark, consumers may reasonably assume that the signs at stake distinguish different, but related, lines of goods.

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s Swedish trade mark registration No 546 562. 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

Agnieszka PRZYGODA

Victoria DAFAUCE MENÉNDEZ

Martin MITURA

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.