OPPOSITION No B 1 875 551

Raiffeisendruckerei GmbH, Niederbieberer Str. 124, 56567 Neuwied, Germany (opponent), represented by B/S/H Rechtsanwälte, Berliner Allee 34-36, 40212 Düsseldorf, Germany (professional representative)

a g a i n s t

Carla Marie Williams, 52 Wellington Road, Wealdstone, Middlesex HA3 5SE, United Kingdom (applicant), represented by Beck Greener, Fulwood House, 12 Fulwood Place, London WC1V 6HR, United Kingdom (professional representative).

On 21/09/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 1 875 551 is rejected in its entirety.

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

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 9 732 108, namely against all the goods and services in Classes 9, 16, 35 and 41. The opposition is based on German trade mark registration No 30 137 376. The opponent invoked Article 8(1)(b) EUTMR.

PRELIMINARY REMARK

For reasons of procedural economy, the Opposition Division will not examine the evidence of use filed by the opponent (see also section d) Conclusion).

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.

1. The signs

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 earlier mark is a figurative mark that consists of two geometrical figures fitting together to form a square with rounded corners; the shape to the left is blue and the one to the right is grey. Contrary to what the opponent argues, the Opposition Division considers that the public will not be able to recognise the letters ‘RD’ or any other letters in this sign, but will identify only abstract forms.

The contested sign is a figurative mark consisting of the verbal element ‘RD’ depicted in a black upper case typescript with some white spots.

The signs have no elements that could be considered clearly more distinctive or more dominant (visually eye-catching) than other elements.

Visually, the signs have nothing relevant in common. If, as argued by the opponent, the earlier mark depicts the letters ‘RD’, this hypothetical commonality with the contested sign is visually not perceptible but hidden in the sign. In fact, the shapes that make up the signs and their colours are totally different. As the signs do not visually coincide in any element, it is concluded that the signs are not visually similar.

Aurally, it is not possible to compare the signs because purely figurative signs are not subject to a phonetic assessment. The public will not perceive any verbal element in the earlier mark and, therefore, will not pronounce it. The signs are not subject to comparison from an aural perspective.

Conceptually, while the public in the relevant territory will perceive the letters ‘RD’ as conveying no clear concept in the contested sign, the earlier mark lacks any meaning in that territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

As the signs do not have any element or relevant aspect in common, they are dissimilar.

2. Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the signs is a condition for a finding of likelihood of confusion. Since the signs are dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

Given that the opposition is not well founded under Article 8(1) EUTMR it is unnecessary to examine the evidence of use filed by the opponent.

COSTS

According to Article 85(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 Rule 94(3) and Rule 94(7)(d)(ii) 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

Marta GARCÍA COLLADO

Benoit VLEMINCQ

Vít MAHELKA

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.