OPPOSITION No B 3 121 038

Jaguar Land Rover Limited, Abbey Road, Whitley, Coventry CV3 4LF, United Kingdom (opponent), represented by Reddie & Grose LLP, The White Chapel Building, 10 Whitechapel High Street, London E1 8QS, United Kingdom (professional representative)

a g a i n s t

Wanzl GmbH & Co. KGaA, Rudolf-Wanzl-Straße 4, 89340 Leipheim, Germany (applicant), represented by Kirsten Rojahn, Rudolf-Wanzl-Straße 4, 89340 Leipheim, Germany (employee representative).

On 23/08/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 121 038 is upheld for all the contested goods.

2. European Union trade mark application No 18 189 420 is rejected in its entirety.

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

REASONS

On 15/05/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 189 420 ‘EvoSeat’ (word mark). The opposition is based on European Union trade mark registration No 17 866 806 ‘EVOQUE’ (word mark). The opponent invoked Article 8(1)((b) and Article 8(5) 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 12: Vehicles; motor vehicles; apparatus for locomotion by land, air and/or water; motor land vehicles; land vehicles; off-road vehicles; all terrain vehicles (ATVS); driverless motor vehicles; autonomous motor vehicles; racing cars; reconditioned classic vehicles; electric vehicles; hybrid vehicles; self-driving vehicles; military vehicles; trailers; arm rests for vehicle seats; head-rests for vehicle seats; vehicle head rest covers; car seat covers; seats for vehicles; safety seats for vehicles; bicycles; tricycles; parts, fittings and accessories for bicycles; self-balancing electric scooters; scooters; strollers and prams and their parts and accessories; baby, infant and child seats for vehicles; remote control vehicles, not toys; parts and fittings for all of the aforesaid goods.

The contested goods are the following:

Class 12: Parts and fittings for land vehicles; parts and fittings for handling carts; parts and fittings for shopping trolleys; vehicle seats; seat cushions for the seats of land vehicles; children’s seats for use in vehicles; back panels for vehicles.

Class 20: Seats for children.

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.

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 12

The contested parts and fittings for land vehicles; parts and fittings for handling carts; parts and fittings for shopping trolleys; back panels for vehicles are included in the broad category of, or overlap with, the opponent’s parts and fittings for all of the aforesaid goods (apparatus for locomotion by land). Therefore, they are identical.

Vehicle seats; children’s seats for use in vehicles are identically contained in both lists of goods (including synonyms).

The contested seat cushions for the seats of land vehicles overlap with the opponent’s car seat covers, as the latter may consist of covers made of cushions. Therefore, they are identical.

Contested goods in Class 20

The contested seats for children are similar to the opponent’s child seats for vehicles in Class 12. These goods may coincide in relevant public and distribution channels, such as specialised shops for children.

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 are directed at the public at large and at business customers with specific professional knowledge or expertise, for example, in the automotive field.

The degree of attention is rather high considering the specialised nature of the goods, their infrequent purchase, their price and that they may have a direct effect on the consumer’s safety.

Given that the general public is more prone to confusion, the examination will proceed on this basis.

c) The signs

EVOQUE	EvoSeat
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 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 ‘Seat’ of the contested sign is meaningful for English-speaking consumers in the relevant territory, who include, for example, those in anglophone countries such as Ireland and Malta, as well as other countries where a significant part of the public has sufficient knowledge of English as a foreign language. For example, the Court has already confirmed that there is at least a basic understanding of the English language by the general public in Scandinavian countries, the Netherlands and Finland (26/11/2008, T‑435/07, New Look, EU:T:2008:534, § 23). Consequently, and considering that this factor has an impact on the conceptual comparison of the signs, the Opposition Division finds it appropriate to focus on this part of the public.

The earlier mark is the word mark ‘EVOQUE’ and the contested sign is the word mark ‘EvoSeat’. The protection of a word mark concerns the word itself. Therefore, it is irrelevant, for the purposes of the comparison of word marks, if one of them is written in lower-case letters and the other in upper-case letters. Nevertheless, where a word mark combines upper- and lower-case letters (as in the contested sign) in a manner that departs from the usual way of writing (‘irregular capitalisation’), this must be taken into account. Pursuant to Article 3(2) EUTMIR, the representation of the trade mark defines the subject matter of the registration. It should also be noted that the relevant public will not fail to notice the use of irregular capitalisation. This is applicable to the contested sign, which the relevant public will split into two elements, ‘Evo*’ and ‘*Seat’, as both elements start with an upper-case letter and their remaining letters are lower-case.

The verbal element ‘EVOQUE’ of the earlier mark will be perceived by the relevant public as meaning ‘evoke’, due to their identical pronunciation. The element will, therefore, be perceived as, inter alia, ‘to call or sum up (a memory, feeling, etc. esp from the past; to call forth or provoke; produce; elicit’ (information extracted from Collins English Dictionary on 19/08/2021 at www.collinsdictionary.com/dictionary/english/evoke). This element has, however, no relation to the relevant goods and is, therefore, distinctive.

The verbal element ‘Evo*’ in the contested sign is meaningless and distinctive in relation to the relevant goods. The verbal element ‘*Seat’ in the contested sign refers to, inter alia, ‘a piece of furniture designed for sitting on, such as a chair or a sofa; the part of a chair, bench, etc., on which one sits’ (information extracted from Collins English Dictionary on 19/08/2021 at www.collinsdictionary.com/dictionary/english/seat). This only indicates either the nature of the goods concerned, such as vehicle seats; children’s seats for use in vehicles, or refers to some parts/fittings to be used with/in seats, such as seat cushions for the seats of land vehicles. This element is, therefore, non-distinctive.

Taking into account the above, the distinctive element of the contested sign is its first element ‘Evo*’. The relevant public will not pay much attention to its second element ‘*Seat’.

Visually, the signs coincide in the string of letters ‘EVO*’, which is the most distinctive part of the contested sign and the first three letters of the earlier mark. The marks differ in the additional letters ‘*QUE’ at the end of the earlier mark and in the element ‘*Seat’ of the contested sign, which is non-distinctive.

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 or from top to bottom, which makes the part placed at the left or on top of the sign (the initial part) the one that first catches the attention of the reader. It is relevant for the comparison that the first three letters of both signs coincide and that these three letters are the initial part of the earlier mark.

Therefore, bearing in mind the above, the signs are visually similar to a below-average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘EVO*’, present identically in both signs. The earlier mark will be pronounced ‘E-VOKE’ because its final three letters ‘*QUE’ will have an English pronunciation, as explained above. The contested sign will be pronounced ‘E-VO-SEAT’. The marks differ in the pronunciation of their final letters, namely the ‘K’ sound of ‘*QUE’ of the earlier mark, and the element ‘Seat’ in the contested sign, which is non-distinctive.

Therefore, bearing in mind the above, 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. Since ‘EVOQUE’ of the earlier mark will be pronounced ‘evoke’ by the English-speaking public, it will convey this meaning when perceived aurally. The element ‘Evo*’, present in both signs, has no meaning for the public in the relevant territory. However, the element ‘*Seat’, in the contested sign, has the abovementioned meaning. Although this (non-distinctive) element endows the contested sign with a concept that cannot be ignored, it has very little impact, if any, on the overall conceptual comparison. In any case, since the earlier mark is perceived with the aforementioned meaning, the marks are not conceptually 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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

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 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

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.

The appreciation of a likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the trade mark on the market, the association that can be made with the used or registered sign, and the degree of similarity between the trade mark and the sign and between the goods or services identified. 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).

Such 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, § 19; 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 at issue are identical or similar. The relevant public, on which this decision is based, is the public at large, whose degree of attention is rather high. The earlier mark has a normal degree of inherent distinctiveness.

The marks are visually similar to a below-average degree, aurally similar to an average degree and conceptually not similar. The element ‘*Seat’ of the contested sign is non-distinctive and has very little impact, if any, on the conceptual comparison.

In view of all the relevant factors and the principle of interdependence, explained above, the identity of some of the goods offsets the below-average degree of visual similarity between the signs.

Considering all the above, there is a likelihood of confusion on the part of the English-speaking public and the part of the public with a basic understanding of English, even when taking into account that the relevant public has a rather high degree of attentiveness. 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. Furthermore, there is a likelihood of confusion on the part of the public at large. Given that a likelihood of confusion for only part of the relevant public is sufficient, there is no need to analyse the remaining part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 17 866 806 for the word mark ‘EVOQUE’. It follows that the contested trade mark must be rejected for all the contested goods.

Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its extensive use or reputation, as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

It should be noted that the applicant did not submit any arguments to defend its application and did not in any way question, for example, the existence of a likelihood of confusion.

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

Marta GARCÍA COLLADO

Chantal VAN RIEL

María del Carmen COBOS PALOMO

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.