OPPOSITION No B 3 125 159

QX WORLD Kft, Tinodi utca 1-3, A epulet, $ emelet, 93 ajto, 1095, Budapest, Hungary (opponent), represented by Oppenheim Ugyvedi Iroda, Karolyi u. 12., 1053, Budapest, Hungary (professional representative)

a g a i n s t

Sergi Gonzalez Delgado, plaça Francesc Masia 8 6º B, 08029, Barcelona, Spain (applicant)

On 27/07/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 125 159 is rejected in its entirety.

2. The opponent bears the costs.

REASONS

On 26/06/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 226 015 (figurative mark), namely against all the goods in Classes 9 and 10. The opposition is based on international trade mark registration No 1 482 624 (figurative mark) designating the European Union. 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 and services

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

Class 9: Software for biofeedback devices; computer operating software for biofeedback devices.

Class 10: Medical and veterinary apparatus and instruments.

Class 35: Retail services for computer software for biofeedback devices; retail services in relation to computer software for biofeedback devices; wholesale services in relation to computer software for biofeedback devices.

Class 37: Medical apparatus repair; repair of medical machines and apparatus; repair or maintenance of medical machines and apparatus; maintenance and repair of medical instruments, apparatus and equipment; providing information relating to the repair or maintenance of medical machines and apparatus.

Class 42: Software creation for biofeedback devices; development of operating system software for biofeedback devices; design and development of operating system software for biofeedback devices.

The contested goods are the following:

Class 9: Breathing masks.

Class 10: Masks for use by medical personnel; Laryngeal masks; Surgical masks; Bio therapeutic facial masks; Anaesthetic masks; Surgical breathing masks; Protective nose masks for veterinary use; Protective nose masks for dental use; Protective face masks for dental use; Protective mouth masks for veterinary use; Protective masks for use by surgeons during operations; Sanitary masks for dust prevention for medical purposes; Sanitary masks for dust isolation for medical purposes; Protective breathing masks made of non-woven materials for medical applications; Protective breathing masks made of non-woven materials for surgical applications.

Some of the contested goods are identical or similar to goods and services on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 assumed to be identical are directed at the public at large and at professionals in the healthcare sector. Goods like breathing masks are used by professionals in hospitals, clinics or other care institutes, but also by the end consumer for personal use.

The degree of attention of the relevant public will vary from higher than average to high as the goods have a substantial impact on health, for instance breathing/protective masks are essential tools in preventing the spread of the coronavirus.

c) The signs

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 earlier mark is a figurative mark consisting of a navy-blue unfinished circle with a gap in the bottom right side, in which a figurative device of a navy-blue cross is inserted. There is a white dot where the lines of the latter cross over. The earlier mark will most likely be perceived by the relevant public as a stylised letter ‘Q’ or a combination of letters ‘OX’. It cannot be excluded that some part of the relevant public will perceive the earlier mark as a highly stylised combination of letters ‘QX’.

The contested sign is a figurative sign consisting of a grey circular shape truncated on one side and crossed from the centre to the bottom by a diagonal purple device. It will be perceived by the relevant public as a stylised letter ‘Q’ or ‘OX’. Contrary to the opponent’s arguments, it is not likely that the relevant public will perceive the contested mark as letters ‘QX’, as the diagonal purple device will be perceived as either creating/part of the letter ‘Q’ or the letter ‘X’.

Both signs (irrespective of their particular perception) are considered distinctive as they have no relation to the relevant goods.

The marks have no element that could be considered clearly more dominant than the other elements.

Both marks are short marks. Account must be taken of the fact that the length of the signs may influence the effect of the differences between them. The shorter a sign, the more easily the public is able to perceive all of its single elements. Therefore, in short words, small differences may frequently lead to a different overall impression. In contrast, the public is less aware of differences between long signs.

The comparison between signs consisting of a single letter, or a combination of up to three letters that is not recognisable as a word, follows the same rules as for word signs consisting of a word, a name or an invented term (06/10/2004, T 117/03, T 119/03 and T 171/03, NL, EU:T:2004:293, § 47-48; 10/05/2011, T 187/10, G, EU:T:2011:202, § 49).

Visually, the signs only coincide in the fact that both contain a rounded shape crossed diagonally by some line. However, the marks differ in their colours, stylisation, the fact that in the earlier mark the rounded shape is open and in the contested it is closed. Furthermore, in the earlier mark the cross is clearly visually separated while in the contested mark it either forms a letter ‘Q’ or ‘X’.

Therefore, the signs are similar to a very low degree.

Aurally, at least for a part of the public the signs are aurally identical since they will be pronounced as either ‘Q’ or ‘OX’. Depending on the pronunciation of the respective marks according to the scenarios mentioned above, there is a part of the public for which the signs coincide in the sound of one letter and then are similar (to a low degree given the short nature of the signs) or do not coincide in the sound of any letter and then are not similar.

Conceptually, it is not excluded that both signs may be perceived by part of the relevant public as referring to the letter ‘Q’ or letters ‘OX’. For the part of the public that will see the single letter ‘Q’ in both marks, the signs are conceptually identical.

For the part of the public that perceives both marks as the letters ‘OX’, the signs will have no particular meaning and therefore, as the conceptual comparison is not possible, it will not influence the assessment of the similarity of the signs. It is taken into account that the word ‘ox’ exists in English (referring to a ruminant mammal), but this meaning is not likely to come to the public’s mind in view of the goods at issue and given the specific arrangement of the two letters in the signs resulting in their perception as two fancifully combined letters rather than as a word.

As for the part of the public who will perceive the letter ‘Q’ in only one sign, as the other mark will not be associated with any meaning, the signs 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.

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 and services 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

The goods are assumed to be identical and are directed at the public at large and at professional public.

The distinctiveness of the earlier mark is normal.

It is clear from the case-law of the Court that in the assessment of likelihood of confusion between signs comprising the same single letter, the visual comparison is, in principle, decisive and that this rule on the importance of the visual comparison also applies to two-letter marks. Therefore, the way the letter(s) ‘Q’ (or ‘OX’) appear(s) in each sign is determinant. The aural and conceptual identity or similarity may be overridden, in the assessment of likelihood of confusion, by sufficient visual differences between the signs.

As regards the marks, the Opposition Division has concluded that they are visually similar to a very low degree, for the reasons explained above in section c) of this decision. The letter(s) ‘Q’ (or ‘OX’) is/are depicted in a different manner and their main characteristic features are not the same (open fully circular shape and clear presence of a cross or letter ‘X’ appearing in one colour in the earlier mark vs. closed circular shape with a flat side and a diagonal line featured in two colours in the contested sign).

Furthermore, the marks in dispute are figurative marks, which is to say that both the opponent and the applicant opted to apply for a particular visual depiction of the letter(s) in question.

The aural identity is based on a single letter (at most two letters) – the most basic, irreducible unit of language for word formation. While this identity cannot be overlooked completely, its capacity to cause confusion on the part of the consumer is minimal in the Opposition Division’s view. The fact that the marks can be identical in the sound of a single letter (at most two letters) is not considered to leave much of an impression on a reasonably observant consumer. As regards the conceptual aspect, again, the coincidence is based on one of the most basic semantic concepts that a mark can portray: a single letter. Therefore, it is not of decisive importance.

This considered, the way the letter(s) appear(s) in each sign is determinant. The letter is depicted in a very different manner in the two signs. As mentioned above, the signs are only visually similar to a very low degree, and — in spite of the assumed identity of the goods and services — this is not sufficient to find a likelihood of confusion, especially taking into account the higher than average degree of attention of the relevant public.

It follows from the above that the decisive circumstances of the present case are, essentially, the different depictions of the letter ‘Q’/letters ‘OX’ and the fact that the signs are short signs. All this leads to the conclusion that there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

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 opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR, the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein. In the present case, the applicant did not appoint a professional representative within the meaning of Article 120 EUTMR and therefore did not incur representation costs.

The Opposition Division

Denitza STOYANOVA-VALCHANOVA

Marta ALEKSANDROWICZ-STANLEY

Catherine MEDINA

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.