OPPOSITION Nо B 3 128 735

Panther Deutschland GmbH, Bayreuther Straße 8, 10787 Berlin, Germany (opponent), represented by JBB Rechtsanwälte Jaschinski Biere Brexl Partnerschaft MbB, Christinenstr. 18/19, 10119 Berlin, Germany (professional representative)

a g a i n s t

Yuehua Qin, Rm. 503, Bldg. 2, Jingcheng Haoyuan,Zhonglou Dist., Changzhou,Jiangsu, People’s Republic of China (applicant), represented by AL & Partners S.R.L., Via C. Colombo Ang. Via Appiani (Corte Del Cotone), 20831 Seregno (MB), Italy (professional representative).

On 22/07/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 128 735 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

On 18/08/2020, the opponent filed an opposition against some of the goods of European Union trade mark application No 18 236 801 ‘dvulk’ (word mark), namely some of the goods in Class 10. The opposition is based on European Union trade mark registration No 14 456 628 ‘Hulk’ (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 10: Mattresses for medical use.

The contested goods are the following:

Class 10: Heating cushions [pads], electric, for medical purposes; draw-sheets for sick beds; incontinence sheets; soporific pillows for insomnia.

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.

The contested heating cushions [pads], electric, for medical purposes; draw-sheets for sick beds; incontinence sheets; soporific pillows for insomnia are similar to the opponent’s mattresses for medical use because they coincide in their end user (medical personnel or people with health issues) and distribution channels (specialised retailers). In addition, they can be complementary (for example, draw-sheets or pillows are designed to be used together with mattresses of a given size).

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 similar are directed at the public at large and professionals of the health sector.

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.

c) The signs

Hulk	dvulk
Earlier trade mark	Contested sign

The relevant territory is the European Union.

As indicated by the opponent, the word ‘Hulk’ of the earlier mark may have a meaning in some languages of the relevant territory, for example, in English, it means, inter alia, ‘a large disused structure’ (information extracted from Lexico Dictionary on 14/07/2021 at https://www.lexico.com/definition/hulk on 14/07/2021). Another part of the public will associate the term with the superhero from Marvel Comics.

However, the Opposition Division considers it appropriate to first examine the opposition in relation to the part of the public for which both verbal elements are perceived as fanciful words, which have no meaning and are, therefore, distinctive. This is the most advantageous scenario for the opponent because the fact that neither of the signs conveys any concept for the relevant public does not help the public to distinguish between them or to notice their differences in spelling.

Visually and aurally, the signs only coincide in the string of letters/sounds ‘ulk’, which is at the end of the signs. They differ in the letters/sounds ‘h’/‘dv’, which are placed at their beginning. In some languages, such as Spanish, the letter ‘h’ will not be pronounced.

In this regard, 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. Contrary to the opponent’s view, the signs’ totally different beginnings (‘h’/‘dv’) have more impact on the public than the common element ‘ulk’, which is placed at their end.

Furthermore, the signs are relatively short and, according to established practice, in short signs, even small differences may lead to different visual impressions, since the public is able to easily perceive all of their individual elements.

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

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the signs to the part of the relevant public. Since neither of the signs has any meaning, it is not possible for the signs to be compared conceptually and the conceptual aspect is irrelevant for the purposes of assessing the similarity 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 relevant 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 similar and target the public at large and professionals, whose degree of attention may vary from average to high. The earlier mark enjoys a normal degree of distinctiveness.

The signs are visually and aurally similar to a low degree. Contrary to the opponent’s view, the differences between the signs, namely the different beginnings, will be readily noticed by average consumers and are sufficient to produce a different overall impression in order to allow consumers to distinguish these relatively short signs. The conceptual comparison is not possible.

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17). The Opposition Division has taken this principle into account when assessing the likelihood of confusion and the fact that the goods are similar cannot, in this case, compensate for the differences between the signs. Indeed, even the average consumer displaying an average degree of attention is reasonably well informed, attentive and circumspect and therefore would perceive the differences between the signs.

Considering all the above, the Opposition Division finds that there is no likelihood of confusion on the part of the public in the relevant territory that will perceive both marks as fanciful words without any meaning.

As mentioned above, this is the best-case scenario for the opponent, since for the part of the public that may perceive either or both signs as conveying a concept, irrespective of its degree of distinctiveness, the signs would be perceived as conceptually not similar and thus even more easily distinguished by those consumers.

Considering all the above, there is no likelihood of confusion on any part of the public in the relevant territory. 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.

The Opposition Division

Tzvetelina IANTCHEVA

Fernando AZCONA DELGADO

Inés GARCÍA LLEDÓ

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.