OPPOSITION Nо B 3 116 687

 

Özcan Mevlüt, Wilhelmstrasse 61, 44649 Herne, Germany (opponent), represented by Christoph Friedrich Jahn, Rothenburg 41, 48143 Münster, Germany (professional representative) 

 

a g a i n s t

 

Yongkang Jinling Vehicle Co., Ltd., Block 1, no.228-1,Chengxin Rd, Hardware Science&Technology Industrial Garden, Yongkang City, Zhejiang Province, People’s Republic of China (applicant), represented by Intermark Patentes Y Marcas, S.L.P. (also trading as Lidermark Patentes y Marcas), C/obispo Frutos, 1b 2°a, 30003 Murcia, Spain (professional representative).

On 25/06/2021, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 116 687 is upheld for all the contested goods.

 

2.	European Union trade mark application No 18 221 811 is rejected in its entirety.

 

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

 

REASONS

 

On 22/04/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 221 811, (figurative mark). The opposition is based on European Union trade mark registration No 13 711 891, ‘Jinling’ (word mark). The opponent invoked Article 8(1)(a) and (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 12: Vehicles; hubs for vehicle wheels; electric vehicles; mopeds; remote control vehicles, other than toys; steering wheels for vehicles.

 

The contested goods are the following:

 
Class 12: Electric vehicles; electric bicycles; hubs for vehicle wheels; vehicle joysticks; mopeds; remote control vehicles, other than toys; push scooters [vehicles]; golf carts [vehicles]; electric locomotives; motor scooters; self-balancing scooters.

 

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.

Electric vehicles; hubs for vehicle wheels; mopeds; remote control vehicles, other than toys are identically contained in both lists of goods.

The contested electric bicycles; push scooters [vehicles]; golf carts [vehicles]; electric locomotives; motor scooters; self-balancing scooters are included in the opponent's broad category of vehicles. Therefore, they are identical.

The contested vehicle joysticks are in their nature systems that essentially replace the conventional onboard control in a driving vehicle by, inter alia, giving it direction. These goods are then highly similar to the opponent's steering wheels for vehicles being parts of a vehicle implemented for that same reason. These goods will coincide in their distribution channels, producers and relevant consumers. Naturally, being alternatives of conventional, and manual, steering versus modern digitalised control over a vehicle, they are also in competition with each other.

c) The signs

 

Jinling
Earlier trade mark	Contested sign

 

The relevant territory is the European Union.

In the present case, given that the signs only differ in the visual representation of their identical verbal element, where some minor font is used in the contested sign, they are considered nearly identical.

 

e) Global assessment, other arguments and conclusion

 

As illustrated in the comparison of signs, their near identity implies that consumers will not be able to distinguish between them. This conclusion would hold true even if the distinctiveness of the coinciding element and the earlier mark as a whole was very low and irrespective of the degree of attention and the sophistication of the relevant public.

Consequently, given the identity and high similarity of the goods in Class 12 of both parties, there is a likelihood of confusion within the meaning of Article 8(1)(b) EUTMR and the opposition must be upheld for all the contested goods.

Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(1)(a) EUTMR. 

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

 

 

Meglena BENOVA

Manuela RUSEVA

Kieran HENEGHAN

 

 

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.