OPPOSITION Nо B 3 124 921

Nadir Gezer, Bünzwangerstr. 8, 73061 Ebersbach, Germany (opponent), represented by Jan Marschner, Markt 9, 04109 Leipzig, Germany (professional representative)

a g a i n s t

Yiwu Hongyu Trading Company, 6th Floor, No. 12, Danchen 1st Road, Beiyuan Street, Yiwu City, Zhejiang Province, People’s Republic of China (applicant), represented by Metida Law Firm Zaboliene and Partners, Business Center Vertas Gynéjų str. 16, 01109 Vilnius, Lithuania (professional representative).

On 10/06/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 124 921 is upheld for all the contested goods.

2. European Union trade mark application No 18 214 411 is rejected in its entirety.

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

REASONS

On 25/06/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 214 411 ‘rose bear’ (word mark). The opposition is based on German trade mark registration No 302 019 023 524 ‘ROSEBEAR’ (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, inter alia, the following:

Class 26: Artificial flower arrangements; artificial flowers; bouquets of artificial flowers; wreaths of artificial flowers; artificial fruit, flowers and vegetables; artificial flowers of plastics.

The contested goods are the following:

Class 26: Silk flowers; artificial fruit; artificial flower arrangements; outdoor artificial foliage; artificial vegetables; artificial Christmas wreaths; artificial garlands and wreaths; artificial flower wreaths; artificial garlands; wreaths of artificial flowers.

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.

Artificial flower arrangements; wreaths of artificial flowers; artificial fruit; artificial vegetables; artificial flower wreaths are identically contained in both lists of goods (including different word order in the case of the last).

The contested silk flowers are included in the opponent’s broad category of artificial flowers. Therefore, they are identical.

The contested outdoor artificial foliage overlaps with the opponent’s artificial flower arrangements as both sets of goods may include outdoor artificial arrangements of flowers. Therefore, they are identical.

The contested artificial Christmas wreaths overlap with the opponent’s wreaths of artificial flowers insofar as the contested goods include artificial Christmas wreaths made of artificial flowers. Therefore, they are identical.

The contested artificial garlands (repeated twice) and wreaths include, as broader categories, the opponent’s wreaths of artificial flowers. Since the Office cannot dissect ex officio the broad categories of the contested goods, they are considered identical to the opponent’s goods.

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.

The degree of attention is considered to be average.

c) The signs and the distinctiveness of the earlier mark

ROSEBEAR	rose bear
Earlier trade mark	Contested sign

The relevant territory is Germany.

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 signs coincide entirely in their verbal elements. They differ only in the space between the verbal elements of the contested sign and the fact that the earlier mark is written in upper-case letters and the contested sign in lower-case letters. However, in the case of word marks, it is the word as such that is protected and not its written form. Consequently, it is irrelevant whether the signs are represented in upper- or lower- case characters.

Therefore, the signs are visually highly similar and aurally identical.

The signs as a whole are meaningless for the relevant public. Since neither of the signs has a meaning for the relevant public, a conceptual comparison is not possible, and the conceptual aspect does not influence the assessment of the similarity of the signs.

As regards the distinctiveness of the signs’ verbal elements in view of the relevant public’s perception, these considerations are rather immaterial in the present case, since if any concept is perceived in one of the signs under comparison, the same concept is contained in the other and they are on equal footing as concerns their distinctiveness. In such a case, it is irrelevant that some of the words which make up the signs, or the earlier trade mark taken as a whole, may have limited distinctiveness in relation to some or all of the goods, since this applies equally to both marks, while the differentiating aspects, as indicated above, are clearly not sufficient to distinguish the marks.

In addition, the opponent did not explicitly claim that his mark is particularly distinctive by virtue of intensive use or reputation.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

d) Global assessment, other arguments and conclusion

The goods are identical. The signs are visually highly similar and aurally identical, whereas the conceptual comparison remains neutral.

As illustrated in section c) of this decision, the earlier mark’s verbal element has been reproduced entirely in the contested sign, with differences confined only to secondary elements and aspects.

This conclusion would hold true even if the distinctiveness of (some of) the coinciding elements and the earlier mark as a whole were low and irrespective of the degree of attention and the sophistication of the relevant public.

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 German trade mark registration No 302 019 023 524. 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

Martin MITURA

Agnieszka PRZYGODA

Philipp HOMANN

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.