DECISION

of the Second Board of Appeal

of 22 September 2015

In Case R 1306/2014-2

Frederic Dorez Pierre Dorez
18 rue Alcyone, bâtiment C Le Capitole Appt 373 FR-34000 Montpellier France	Applicants / Appellants

represented by JACOBACCI & PARTNERS SAS, 23-25 rue Jean-Jacques Rousseau, FR‑75001 Paris, France

v

ZERO INDUSTRY S.R.L.
Strada Statale dei Giovi 251 IT-20823 Lentate sul Seveso (MB) Italy	Opponent / Respondent

represented by Barzano & Zanardo Milano S.P.A., Via Borgonuovo, 10, IT‑20121 Milano, Italy

APPEAL relating to Opposition Proceedings No B 2 122 094 (Community trade mark application No 11 079 001)

The Second Board of Appeal

composed of T. de las Heras (Chairperson), C. Govers (Rapporteur) and R. Ocquet (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 27 July 2012, Frederic and Pierre Dorez (‘the applicants’) sought to register the figurative mark

for the following list of goods:

Class 9 – Diving suits of neoprene; Diving gloves of neoprene; Swimming goggles; Divers' masks; Goggles for sports; Sunglasses; Spectacle cases; Protective helmets for sports; Guidance systems (GPS); Speed indicators; Stepometers;

Class 10 – Orthopedic articles; Stockings for varices; compression socks;

Class 14 – Watches; Chronometers; Watch bands;

Class 18 – Handbags; Rucksacks; Wheeled shopping bags; Travel bags; Bags for sports; Bags for climbers; Valises; Pocket wallets; Purses; Diving bags;

Class 25 – Clothing; Sportswear; Cyclists' clothing; Clothing for jogging; Anoraks; Topcoats; Tee-shirts; Trousers; Vests; Jumpers; Sweat suits; Shortalls; Skirts; Dresses; Shirts; Tank-tops; Caps [headwear]; Belts (clothing); Gloves (clothing); Swimwear caps; Swimsuit; Socks; Beach shoes; Boots for sports; Underwear; Cap peaks; Hosiery; Swimsuits of neoprene, triathlon kit of neoprene; Swimming gloves of neoprene, triathlon gloves of neoprene, cycling gloves of neoprene.

2. The application was published in the Community Trade Marks Bulletin No 198/2012 of 17 October 2012.

3. On 11 January 2013, Zero Industry S.R.L. (hereinafter ‘the opponent’) filed a notice of opposition based on CTM No 8 982 563 for the figurative mark

filed on 25 March 2010 and registered on 30 September 2011 for the following goods:

Class 9 ‑ Optical instruments, spectacles, sunglasses, spectacle cases and chains, spectacle frames; protective goggles, protective helmets, protective masks, ski masks.

4. The grounds of the opposition were those laid down in Article 8(1)(b) CTMR.

5. The opposition was directed against part of the goods covered by the contested trade mark, namely those in Class 9 and was based on all of the goods covered by the earlier right.

6. On 20 March 2014 the Opposition Division adopted its decision (‘the contested decision’) partially upholding the opposition and rejecting the application for ‘diving suits of neoprene; diving gloves of neoprene; swimming goggles; divers’ masks; goggles for sports; sunglasses; spectacle cases; protective helmets for sports’ in Class 9. Each party was ordered to bear its own costs. The Opposition Division reasoned as follows:

• The signs under comparison are similar. They have no elements which could be considered clearly more distinctive or dominant (visually eye-catching) than other elements.

• The distinctiveness of the earlier mark must be seen as normal.

• The goods were found to be identical and similar. They are directed at both the public at large and a professional public. The level of attention varies between average to high.

• The public will tend to recognise a meaningful expression in the marks and, thus, a part of the relevant public will necessarily perceive and keep in mind the identical string of letters ‘ZERO’, and may not, on the contrary, remember the differing elements.

• The applicants refer to Office previous decisions to support their arguments. However it must be noted that the Office is not bound by its previous decisions as each case has to be dealt with separately and with regard to its particularities.

• The previous cases referred to by the applicants are not relevant to the present proceedings because they concern different trade marks and the circumstances of these cases are not comparable to the ones in the present case.

• The similarities found between the signs are sufficiently pronounced to cause confusion on the part of the public. The opposition is partially well founded on the basis of the opponent’s Community trade mark registration.

• It follows from the above that the contested trade mark must be rejected for the goods found to be identical and similar to those of the earlier trade mark.

• The rest of the contested goods are dissimilar.

7. On 20 May 2014, the applicants filed a notice of appeal against the decision. The statement of grounds of the appeal was received on 21 July 2014.

8. The appeal was forwarded to the Opposition Division for consideration pursuant to Article 62 CTMR and was remitted to the Boards of Appeal on 1 October 2014.

9. The opponent did not file observations in response.

Submissions and arguments of the applicants

10. The applicants request the registration of the contested Community trade mark application for all the rejected goods and that the opponent bear the appeal costs. They argued as follows:

• The contested application does not include the element ‘ZERO’ and therefore the opposed signs only share the letters ‘Z’ and ‘R’.

• Phonetically, the pronunciation depends on the language of each Member State. In English, the consumer will pronounce the sign ‘Z-three-R-zero-D’. In France, the contested sign will be pronounced ‘Z-trois-R-zero-D’. The length and the rhythm of both signs are different.

• The sign ‘Z3R0D’ is a lexical invention with no specific meaning. The earlier mark, however, ‘zerorh+’ evokes ‘the absence of quantity’ as stated by the opponent. The element ‘RH+’ is also the abbreviation for Rhesus positive.

• ‘Diving suits of neoprene’ and ‘diving gloves of neoprene’ cannot be considered similar to ‘protective goggles’. ‘Diving suits of neoprene’ and ‘diving gloves of neoprene’ of the contested trade mark are dry suits used in diving practice to cover the human body to protect it against cold water and UV rays (Exhibit B), whereas ‘protective goggles’ are ‘large spectacles equipped with special lenses, protective rims, etc., to prevent injury to the eyes from strong wind, flying objects, blinding light, etc.’ (Exhibit C).

• Indeed, on 27 July 2005, the Opposition Division in its decision B 85 684 887 considered that ‘diving suits’ are very different in their nature and purpose from any of the opponent's goods including ‘protective eyewear’. Besides, ‘diving suits of neoprene’ and ‘diving gloves of neoprene’ are very specific products which will prevent the consumer from thinking that they come from the same companies (or linked companies) as ‘protective goggles’.

• This analysis was confirmed in the Opposition Division’s decision 27/10/2010, B 1 056 649:

‘The diving suits; diving gloves [...] of the contested trade mark are specific outfits and are designed for very specific uses. These articles have a particular nature and their use is also specific. [...]’

• The consumer of neoprene diving suits or gloves seeks an outfit adapted to diving conditions, manufactured and distributed by specific companies. This consumer would not assume that protective goggles as defined above could be found in the same stores or manufactured by the same companies.

• The ‘protective goggles’ of the earlier mark usually enclose or protect the area surrounding the eye in order to prevent particulates or chemicals from striking the eyes. They are used for activities that are hazardous to the eyes, like handiwork or chemistry experiments. They are sold in specialized stores. On the contrary, ‘swimming goggles, goggles for sports’ of the contested trade mark are equipment for water sports, sold in sporting goods stores. These goods do not share the same object, destination and purpose and they do not target the same consumers (laboratory technicians, construction workers, handymen / sportsmen and women).

• ‘Divers’ masks’ of the contested trade mark do not share the same object, destination and purpose and do not target the same consumers as ‘protective masks’ (laboratory technicians, construction workers, handymen vs. sportsmen and women).

• ‘Protective helmets for sports’ are not identical to ‘protective helmets’ of the earlier mark. These products do not share the same object, destination and purpose and do not share the same consumers (construction workers, handymen vs. sportsmen and women).

• The contested application and the earlier mark do not coincide in the letters ‘Z’, ’R’ and ‘0’. Indeed, the symbol used in the fourth position in the contested trade mark is the number ‘0’ represented in its slashed version.

• This specific presentation of the number ‘0’ separated in two parts by a diagonal excludes any risk of confusion with the letter ‘O’. This presentation of a ‘slashed zero’ is a widely used writing convention which is indeed aimed at avoiding any risk of confusion between the letter ‘O’ and the number ‘0’ (Exhibit D). The average consumer, used to this representation of the number ‘0’ will not perceive this character as the letter ‘O’ but, as it is meant to be, as the number ‘0’

• The signs ‘ZERORH+’ and ‘Z3R0D’ only share the letters ‘Z’ and ‘R’ in their first and third positions. This circumstance is insufficient to create a likelihood of confusion between the signs.

• The presentation in red of the element ‘zero’ in the earlier trade mark ‘ZERORH+’ as well as adding the final letters ‘RH +’, in bold white lettering, which are inherently distinctive, contribute in rendering the signs different visually.

• The presentation in black and white of the contested trade mark enables one to isolate the sequence ‘Z3R’ from the sequence ‘0D’ .

• Moreover, visually, the element ‘RH+’ of the earlier trade mark is, at least, as dominant as the element ‘ZERO’, if not even more. This is due to the high contrast between the letters ‘RH+’ written in bold white lettering and the black background of the trade mark. In comparison, the contrast between the red letters ‘ZERO’ and the black background is less important.

• The presentation of the number ‘0’ in its slashed version within the contested sign is visually attractive to the eye and increases the separation between the sequences ‘Z3R’ and ‘0D’ which increases the differences between the signs at stake without doubt.

• Indeed, the earlier sign will be pronounced ‘ZE-RO-R-H-PLUS’, ‘ZERO-RHESUS-POSITIVE’ or ‘ZEROR­ PLUS’.

• As to the pronunciation of the contested CTM, this will depend on the language of each Member State. Indeed, the English-speaking consumer will pronounce the sign ‘Z-three-R-zero-D’. In France, the sign will be pronounced ‘Z-trois-R-zero-D’. The number ‘3’ in second position can, and will be, perceived by the average consumer as a number and not as an inverted ‘E’. This perception will be due to the fact that in the contested sign, the number ‘3’ is represented in its classical digital version (Exhibit E) which clearly differs from the letter ‘E’ even presented in an inverted manner. The length and the rhythm of both signs are widely different.

• The sign ‘Z3R0D’ is a lexical invention; consequently, it does not have a specific meaning.

• On the contrary and as rightfully stated by the Opposition Division, the element ‘ZERO’ of the earlier trade mark ‘ZERORH+’ evokes a cardinal number ‘0’. In addition, the sign ‘ZERORH+’ conveys another meaning as the element ‘RH+’ is the abbreviation for Rhesus positive. In contrast, the contested mark ‘Z3R0D’ has no such meaning in any language and for any part of the relevant public. Thus, the signs at stake are conceptually dissimilar.

• The Opposition Division did not draw the necessary conclusions from its findings by not examining the possibility these conceptual differences play in the prevailing role in the global assessment of the risk of confusion.

• Given the above, and due to the visual, aural and conceptual differences between the trade marks ‘ZERORH+’ and ‘Z3R0D’, the signs are different overall. They will, consequently, not be confused by the average consumer who would not have the two trade marks before him or her at the same time.

• This analysis is, moreover confirmed by two previous decisions in which the signs were considered different:

• 20/03/2012, B 1 549 982, ZERO / 10ZER090 upheld by decision of 06/02/2013, R 682/2012-2.

• 20/04/ 2012, B 1 836 066, ZERO/ZIIIRO upheld by decision of 18/07/2013, R 896/2012-4

• When the consumer’s level of attention is high, the consumer will be even more inclined to perceive the differences between the signs. In particular, the choice of ‘diving suits of neoprene’ and ‘diving gloves of neoprene’ will be guided by several factors that the consumer will have to take into account: the temperature of the water, the shape of the suit, optional features, the place chosen for diving etc. (Exhibit B).

• Besides, the price of these products varies from EUR 21 to EUR 515 approximately depending on the quality and features chosen (Exhibit F).

• Considering the differences between the signs and the goods, there is no risk of confusion for the consumer concerned. Even for the goods considered identical or similar by the Opposition Division, i.e. ‘swimming goggles, goggles for sports’, ‘divers' masks’, and ‘protective helmets for sports’, the differences between the signs at stake are sufficient to overcome the resemblance and to exclude, therefore, a risk of confusion.

Reasons

11. The appeal complies with Articles 58, 59 and 60 CTMR and Rule 48 CTMIR. It is, therefore, admissible.

Scope of appeal

12. The applicants appealed the contested decision to the extent that the application was rejected for:

Class 9 – Diving suits of neoprene; Diving gloves of neoprene; Swimming goggles; Divers' masks; Goggles for sports; Sunglasses; Spectacle cases; Protective helmets for sports.

13. Since the opponent did not file an appeal or a response seeking a decision annulling or altering the contested decision on a point not raised in the appeal in the sense of Article 8(3) BoA-RP, the contested decision has become final to the extent that it partially rejected the opposition, i.e. to the extent that the registration of Community trade mark No 11 079 001 can proceeded for:

Class 9 – Guidance systems (GPS); Speed indicators; Stepometers.

14. Therefore, the scope of the appeal solely concerns the goods for which the CTM application was rejected, i.e. those listed in paragraph 12.

Likelihood of confusion

15. Article 8(1)(b) CTMR states that upon opposition by the proprietor of an earlier trade mark, the contested sign is not to be registered if ‘because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; a likelihood of confusion includes a likelihood of association with the earlier trade mark’.

16. According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion. The likelihood of confusion on the part of the public must be assessed globally, according to the relevant public’s perception of the signs and of the goods and services in question, and taking into account all factors relevant to the circumstances of the case, including the interdependence between the similarity of the signs and that of the goods or services covered. In light of that interdependence, even a lesser degree of similarity between the marks may be offset by a higher degree of similarity between the designated goods or services and vice versa (09/07/2003, T‑162/01, Giorgio Beverly Hills, EU:T:2003:199, § 30-33).

17. The perception of marks in the mind of the average consumer of the goods or services in question plays a decisive role in the global assessment of the likelihood of confusion. Furthermore, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. In addition, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but has to place his/her trust in the imperfect image of them that he/she has retained in his/her mind (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

18. For the purposes of that global assessment, the average consumer of the 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 level of attention is likely to vary according to the category of goods or services in question (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 25-26).

Relevant public

19. The relevant public for the assessment of the likelihood of confusion is composed of users likely to use both the goods and services covered by the earlier mark and those covered by the mark applied for (01/07/2008, T‑328/05, Quartz, EU:T:2008:238, § 23). As stated above, the attentiveness of the public will vary depending on the kind of goods and services involved.

20. In the present case, the opposition will be assessed on the basis of a Community trade mark registration. The relevant territory in respect of which the likelihood of confusion must be assessed is, therefore, the European Union.

21. The average consumer’s level of attention is likely to vary according to the category of goods and services (13/02/2007, T 256/04, Respicur, EU:T:2007:46, § 42 and the case-law cited therein).

22. In the present case, the goods are directed at the public at large, who will display an average level of attention when purchasing them. The goods are also directed at a professional public whose level of attention is high.

23. The Board notes, as regards the relevant public’s level of attention, it is clear from case-law that, where it is made up of consumers who are part of the general public and professionals, the group with the lowest level of attention must be taken into account (15/07/2011, T-221/09, ERGO Group, EU:T:2011:393, § 21 and the case-law cited and 15/02/2011, T-213/09, Yorma’s, EU:T:2011:37, § 25). It follows that in the present case, in any event, account must be taken of the level of attention of the consumer who is part of the general public (27/03/2014, T‑554/12, Aava Mobile, EU:T:2014:158, § 26)

Comparison of the goods

24. In assessing the similarity of the goods, all the relevant factors relating to those goods should be taken into account, including, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 23). Other factors may also be taken into account such as, for example, the usual origin and the relevant public of the goods and services.

25. The applicants claim that ‘diving suits of neoprene’ and ‘diving gloves of neoprene’ cannot be considered similar to ‘protective goggles’ since ‘diving suits of neoprene’ and ‘diving gloves of neoprene’ of the application are dry suits used to practice diving to cover the human body to protect it against cold water and UV rays, whereas ‘protective goggles’ are large spectacles equipped with special lenses, protective rims, etc., to prevent injury to the eyes from strong wind, flying objects, blinding light, etc.

26. The Board considers that although it is true that the contested ‘diving suits of neoprene’ and ‘diving gloves of neoprene’ are products specifically used for the practice of diving, these goods may be used together with protective googles. They also coincide in their end-user and the distribution channels. These goods are therefore similar, at least to a low degree.

27. As regards ‘swimming goggles, goggles for sports’, the applicants argue that, contrary to what the contested decision states, they are dissimilar to ‘protective goggles’ of the earlier mark as the latter are used for activities that are hazardous to the eyes, such as handiwork or chemistry experiments and are sold in specialized stores. On the contrary, ‘swimming goggles, goggles for sports’ of the application are equipment used in water sports and are sold in sporting goods stores.

28. In that respect the Board considers that, as the applicants correctly mention, protective googles protect the area surrounding the eye in order to prevent particulates and chemicals from striking the eyes, but they may also protect the eyes from water. On the other hand, ‘swimming goggles’ prevent water such as salted water (when swimming in the ocean), or chlorinated water (when swimming in a pool), from irritating the eyes or blurring vision and are therefore included in the broader category ‘protective googles’. ‘Protective googles’ are also used in numerous sports such as winter sports (to protect the eyes from snow or icy particles), or football and basketball (sometimes players wear protective googles during play, to prevent other players from scratching their eyes or to prevent further injury to their eyes). Thus, ‘googles for sports’ are also included in the broader category ‘protective googles’ of the earlier mark. Therefore, ‘swimming goggles, goggles for sports’ are, as the contested decision correctly states, identical to ‘protective googles’.

29. As regards the contested ‘divers’ masks’, they refer to masks used to see clearly underwater. Contrary to what the applicants claim, they are included in the opponent’s broad category ‘protective masks’ as the latter are worn on the head and face to afford protection to the wearer and are used, for instance, to provide a supply of air or to filter the air outside. These goods are, therefore, identical.

30. The applicants also argue that ‘protective helmets for sports’ are not identical to ‘protective helmets’ of the earlier mark. The Board disagrees in that respect as the fact that the applicants’ helmets represent ‘sporty’ styles and are intended for people practicing sports does not exclude them from the more general category of ‘protective helmets’ covered by the earlier mark. The Board must examine the list of goods as it appears on the Register and the opponent’s specification is worded broadly; it covers any type of ‘protective helmets’. These goods are, therefore, identical.

31. The contested ‘sunglasses; spectacle cases’ are identically included in the opponent’s specification. The goods are, therefore, identical.

32. Thus, the following contested goods are considered identical or similar (in different degrees) to the earlier goods:

Class 9 – Diving suits of neoprene; Diving gloves of neoprene; Swimming goggles; Divers' masks; Goggles for sports; Sunglasses; Spectacle cases; Protective helmets for sports.

Comparison of the marks

33. With regard to the comparison of the signs, the likelihood of confusion must be determined by means of a global appraisal of the visual, phonetic and conceptual similarity of the signs, on the basis of the overall impression given by them, bearing in mind in particular their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

34. In general terms, two signs are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, aural and conceptual aspects (23/10/2002, T‑6/01, Matratzen, EU:T:2002:261, § 30 upheld by appeal by order of 28/04/2004, C‑3/03 P, Matratzen, EU:C:2004:233, 12.07.2006, T-97/05, Marcorossi, EU:T:2006:203, § 39 and 22/06/2005, T-34/04, Turkish Power, EU:T:2005:248, § 43, upheld on appeal by order 01/06/2006, C-324/05 P, Turkish Power, EU:C:2006:368).

35. Given the relevance of the issue regarding the dominant element for the assessment of the similarity between the signs, the arguments in this respect must be examined before a comparison of those signs is undertaken (17/02/2011, T‑10/09, F1-Live, EU:T:2011:45, § 37). Accordingly, the comparison of the signs at issue must be conducted by identifying any dominant or negligible elements first in respect of the earlier mark, and then in respect of the contested sign (03/09/2010, T‑472/08, 61 a nossa alegria, EU:T:2010:347, § 57 and the case-law cited therein).

36. The signs to be compared are the following:

Earlier mark	Contested sign

37. The earlier mark consists of the word ‘ZERO’ written in a red font and the symbol ‘RH+’ written in white, against a black background. As a result, the mark is divided visually into two parts namely the word ‘ZERO’ and the symbol ‘RH+’ which have different graphic aspects and are in different colours. That division is made more apparent by the colours chosen, namely red and white, which stand out in contrast to one another.

38. The applicants argue that the element ‘RH+’ of the earlier trade mark is, at least, as dominant as the element ‘ZERO’, if not even more, due to the high contrast between the letters ‘RH+’ written in bold white lettering and against the black background of the trade mark. In comparison, the contrast between the red letters ‘ZERO’ and the black background is less important. It should be noted in that respect, first, that the fact that the symbol ‘RH+’ appears in bold letters has little impact on drawing the consumer’s attention, since the slight difference in graphics between that component and the word ‘ZERO’ is hardly relevant in so far as the word ‘ZERO’ is also easy to read. Next, it must be found that the specific composition of the symbol ‘rh+’, namely two lower-case letters and the mathematical symbol ‘+’, is also not sufficient to arrive at the conclusion that the symbol ‘RH+’ is dominant in the mark applied for, since the word ‘ZERO’ occupies a larger part of the mark and is situated at its beginning. In that regard, it should be noted that the consumer normally attaches more importance to the first part of words. Finally, it should be noted that, in light of the fact that the relevant public is not specialised in the medical field, a significant proportion of that public would not perceive the symbol ‘RH+’ as referring to a blood group and, consequently, that symbol would lack the concrete element necessary to be easily remembered. It is, thus, likely that the relevant public would forget it with the passage of time (16/09/2009, T‑400/06, zerorh+, EU:T:2009:331, § 49 and 50). The element ‘ZERO’ clearly plays an independent distinctive role in the earlier mark.

39. The contested sign is a figurative sign that consists of upper-case letters and numerals, the first three being in black and the last two in white. The sign represents the element ‘Z3R0D’, which may also be read as ‘ZEROD’, as the number ‘3’ can be interpreted as an inverted letter ‘E’ and the number ‘0’ as the letter ‘O’. In that respect the applicants state that the specific presentation of the number ‘0’ separated in two parts by a diagonal – a ‘slashed zero’– is a writing convention widely used which excludes any risk of confusion between the letter ‘O’ and the number ‘0’. However, the Board considers that part of the public will not be familiar with this type of writing or will simply consider the slash as an ornamental element. The contested sign has no element which could be considered more dominant.

40. Visually, the signs coincide in the letters ‘Z’ and ‘R’. It should be noted that, as mentioned above, it is likely that at least part of the relevant public will perceive the number ‘3’ as an inverted ‘E’ and number ‘0’ as the letter ‘O’ and will, therefore, perceive the contested sign as the element ‘ZEROD’. In such a case the signs coincide in the first four letter ‘Z’, ‘E’, ‘R’ and ‘O’ and the addition of one letter at the end of the contested sign is not considered enough to overcome the similar impression between the marks provoked by the first four letters that they have in common. The applicants argue that the presentation in red of the element ‘ZERO’ in the trade mark ‘ZERORH+’ as well as the addition of the final letters ‘RH+’, in bold white lettering, which are inherently distinctive, contribute to render the signs different visually. The Board disagrees and considers that it should also be found, first of all, that even supposing that the consumer, when buying the goods at issue, pays particular attention to the visual aspect of the marks and thus to their graphic design (12/07/2006, T‑97/05, Marcorossi, EU:T:2006:203, § 45), the graphic design of the earlier mark draws the consumer’s attention less than the verbal element ‘ZERORH+’ of that compound mark. It is that verbal element which will naturally draw the attention of the public most. The graphic design of the earlier mark is not particularly striking and that mark does not contain any figurative element capable of prevailing over the verbal element ‘ZERORH+’ in the overall impression given by the mark (16/09/2009, T‑400/06, zerorh+, EU:T:2009:331, § 46). Moreover, as regards the contested sign, even though its combination of colours can lead consumers to perceive two words, the fact that all the letters follow in an identical font and are written in a single word counteracts that perception, this combination of colours not being sufficient to avoid the recognition of their identical first four letters. Therefore, at least for part of the relevant public, the marks at issue share the same essential element, namely the word ‘ZERO’, and are, on that basis, similar.

41. Phonetically, the earlier mark will be pronounced ‘ZE-ROR-PLUS’, ‘ZE-ROR’ (with or without a pause in the pronunciation between the two syllables) or simply ‘ZE-RO’, as ‘RH+’, is a symbol which is easily separable from the rest and can be omitted. The addition of the symbol ‘RH+’ to the earlier mark is not decisive in the phonetic comparison since, first, it is situated at the end of the word and, second, a significant proportion of the public would probably omit that symbol when pronouncing the verbal element ‘ZERORH+’, either because they are unsure as to what it means, or simply to economise on words since the time taken to pronounce that symbol is relatively long and it is easily separable from the rest when being pronounced (16/09/2009, T‑400/06, zerorh+, EU:T:2009:331, § 58). As regards the contested sign, at least part of the relevant public will perceive the number ‘3’ as an inverted ‘E’ and number ‘0’ as the letter ‘O’ and will, therefore, perceive the contested sign as the element ‘ZEROD’. For that part of the public the two signs share, therefore, their first four letters (‘Z’, ‘E’, ‘R’ and ‘O’). The pronunciation of the contested sign may also be influenced by the consumer’s perception of the sign due to its combination of colours. Thus, consumers could pronounce the contested mark as a single word ‘ZEROD’ or as a composition of the word ‘ZER’ and the letters ‘OD’, which finally would sound as ‘ZERO-D’ due to the normal rhythm when being uttered. Given that the word ‘ZERO’ is present in each of the marks at issue, at least for part of the relevant public, it will, in any event, be clearly audible. Therefore, since the pronunciation of the marks only differs in the pronunciation of the letter ‘D’, at the end of the contested sign, the Board finds that, at least for part of the relevant public, the marks are highly similar due to the identical pronunciation of their first four letters, which is the part that first catches the consumer’s attention.

42. Conceptually, the contested sign will be perceived as ‘Z3R0D’ or as ‘ZEROD’. In any case, neither of these two elements has a meaning in any of the relevant languages. As regards the earlier mark, the relevant consumers are likely to recognise and understand the English word ‘zero’ to refer to a cardinal number or to mean ‘nothing’, ‘null’ or ‘nil’. This is because, firstly, it exists identically or nearly identically in many European languages, e.g. Italian (‘zero’), French (‘zéro’), Spanish (‘cero’), Portuguese (‘zero’), Maltese (‘żero’), Polish (‘zero’) and Rumanian (‘zero’). Secondly, in the Board’s view, ‘zero’ is a basic English word, while the Courts have decided on various occasions that the average consumer in the European Union as a whole would understand certain basic English words (21/01/2010, T‑309/08, G Stor, EU:T:2010:22, § 32; 16/01/2008, T‑112/06, Idea, EU:T:2008:10, § 69). In contrast, as regards the element ‘RH+’ of the earlier mark, in light of the fact that the relevant public is not specialised in the medical field, a significant proportion of that public would not perceive the symbol ‘RH+’ as referring to a blood group (16/09/2009, T‑400/06, zerorh+, EU:T:2009:331, § 50). In that regard, it must also be noted that, while the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, he or she will nevertheless, perceiving a verbal element within a figurative sign, break it down into verbal elements which, for him or her, suggest a concrete meaning or which resemble words known to him or her (14/02/2008, T‑189/05, Galvalloy, EU:T:2008:39, § 62 and the case‑law cited). In the present case, the earlier mark is made up of a verbal element which is clearly divided into two elements, namely the word ‘ZERO’ in red and the symbol ‘RH+’ in white. It cannot, therefore, be considered that the verbal element ‘ZERORH+’ creates, for the general public, a logical unit with a semantic value which is distinct from that of its two components. As for the contested sign, the Board considers that it cannot be disregarded that those consumers who understand the word ‘ZERO’ could also be able to recognise it in the contested sign as it is totally reproduced, when the number ‘3’ is perceived as an inverted ‘E’ and number ‘0’ is perceived as the letter ‘O’. Indeed, even if the view were to be taken that certain consumers targeted might perceive the symbol ‘RH+’ of the mark applied for as a blood group and that, by that association, the signs would differ conceptually to some extent, the fact nonetheless remains that, for the public that will perceive the element ‘ZERO’ in the contested sign, those marks would conserve a conceptual link between them, consisting of one common word, namely the word ‘ZERO’, evoking the cardinal number, which would limit that difference (16/09/2009, T‑400/06, zerorh+, EU:T:2009:331, § 62-63 and the case-law cited therein). For that part of the relevant public the signs are similar. For the part of the public for whom only one of the signs has a meaning or who would associate the signs with dissimilar meanings, the signs are conceptually dissimilar.

Global assessment

43. The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (eighth recital of the CTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18 and 11.11.1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

44. Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular, the similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 20; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 24 and 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

45. The contested goods that fall within the scope of the appeal are identical and similar to the earlier goods. The signs are considered to display a degree of similarity based on their common word ‘ZERO’, at least for part of the relevant public. A lesser degree of similarity between the signs may be offset by the identity of the goods.

46. It is apparent from all the above that, even if it were to be accepted that the public may be in a position to make a distinction between the marks at issue, there is a risk that they might make a link between the signs ‘ZERORH+’ and ‘ZEROD’ given their similarities and that the public might believe, in light of all the other relevant factors, that the goods concerned come from the same undertaking or from economically-linked undertakings.

47. Even supposing that a proportion of the relevant public were to understand the symbol ‘RH+’ as a reference to a blood group, the word ‘ZERO’ still plays an independent distinctive role in the mark applied for since it is placed at its beginning and is easily legible. Therefore, even if that word could not be considered, in the mind of the relevant public, as dominating the overall impression created by the earlier mark, it must still be taken into account in the assessment of the similarity of the marks at issue and of the likelihood of confusion between the mark applied for and the earlier mark (16/09/2009, T‑400/06, zerorh+, EU:T:2009:331, § 51).

48. Therefore, the signs are similar based on the word ‘ZERO’ which plays at least an independent distinctive role in the earlier mark, and is fully visible in the contested mark. The goods in question are identical or similar to various degrees. Having regard, first, to the identity and the similarity of the goods concerned and the similarity between the signs at issue and, second, to the interdependence of those two factors in the context of an overall assessment of the likelihood of confusion, it must be held that a likelihood of confusion between the signs on the part of the relevant public exists in relation to the contested goods that have been found identical or similar to the earlier goods.

49. Insofar as the applicants refer to several Opposition Division’s decisions and some Board of Appeal decisions in support of their argument that the signs are different, this fails. It must be noted that the Office is not bound by its previous decisions as each case has to be dealt with separately and with regard to its particularities. The Board has to apply the CTMR as interpreted by the EU judicature and cannot decide its case on the basis of previous Board of Appeal decisions (10/06/2009, T-204/06, milko ΔΕΛΤΑ, EU:T:2009:185, § 54), or, for that matter, decisions of the Opposition Division (27/03/2014, T-554/12, Aava Mobile, EU:T:2014:158, § 65).

50. It follows that the appeal must be dismissed.

Costs

51. The applicants, as the losing party, must bear the fees and representation costs of the opponent pursuant to Articles 85(1) and (6) CTMR. It follows that they must bear the opponent’s representation costs in the appeal proceedings to the amount of EUR 550 in accordance with Rule 94(7)(d) CTMIR. The contested decision ordered each party to bear its own costs. This order remains unchanged.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Orders the applicants to bear the opponent’s costs in the appeal proceedings of EUR 550.

Signed T. de las Heras

Signed C. Govers

Signed R. Ocquet

Registrar: Signed H.Dijkema