OPPOSITION No B 2 146 788

Hydac Technology GmbH, Industriegebiet, 66280 Sulzbach/Saar, Germany (opponent), represented by Bartels und Partner, Patentanwälte, Lange Str. 51, 70174 Stuttgart, Germany (professional representative)

a g a i n s t

Nordisk Højtryk A/S, Vidalsvej 4, 9230 Svenstrup, Denmark (applicant), represented by Knud Wallberg, Danstrupvej 1, 2100 Copenhagen Ø, Denmark (professional representative).

On 18/08/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 146 788 is rejected in its entirety.

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

REASONS:

The opponent filed an opposition against all the goods and services of European Union trade mark application No 11 413 424. The opposition is based on European Union trade mark registration No 10 196 004. 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.

1. The goods and services

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

Class 7: Fluid technology, gas technology and lubricating technology installations and components of all kinds, included in class 7, in particular for use in the automobile industry, including mobile hydraulics, the semiconductor industry, the food industry, aerospace, medicine, pharmacy, oil and gas transport technology, environmental engineering, laboratory and testing technology, household and sanitary systems, as well as in mining and in the field of steelworks, power plants, wind power installations, machine tools, transfer presses, plastic injection moulding machines; Hydropneumatic storage units being machine parts; Piston accumulators, bubble memory devices, diaphragm accumulators, bellows accumulators, spring accumulators, in each case being parts of machines and accumulator installations consisting of such accumulators, being parts of machines, including in the field of offshore and deep sea applications; Hydraulic, hydropneumatic and reflective sound, vibration and pressure dampers, resonators, silencers, in each case being parts of machines; Filtration devices and filters, being parts of machines, for filtration and separation technologies, usable for all technical, chemical, biological, and process engineering applications; Replacement parts for all the aforesaid goods; Coalescers, High-pressure, medium-pressure and low-pressure filters, Liquid filters, Line filters and process line filters, gas filters, including for seal gas systems, cyclone filters and other separating filters, filling filters and ventilation filters, full flow filters and bypass filters, multistage filters, return flow filters, including suction filters and return flow suction filters, tank-integrated filters, including ventilating and drying devices, Drum filters and Strip winding filters, perforated plate filters and screen filters, offline filters and inline filters and spin-on filters, plastic melt filters, Membrane filters, Filter units together with draining apparatus, Including being machine parts; Filter elements, Perforated sheet filter and screen filter elements, gap-type tube filter elements, rheological filter elements, flow filter elements, Filter candles, Filter cartridges, Filter housings, Filter discs and Disc filter elements, filter mats, filter pots, filter cloths, filter bags, filter belts, filter packs and depth filter elements, including woven materials for filters, Including being machine parts; Cooling and heating devices, including heat exchangers (parts of machines) for stationary and mobile applications for exchanging heat between liquid and/or gaseous media; Shut-off equipment, shut-off apparatus, stop valves, switch-over devices and valves being parts for machines, in particular for hydraulic and pneumatic propellants and media; In particular inflow pressure and circulating pressure balances, flow control valves, priority valves, shuttle valves, seat valves and slide valves, Throttle valves, Screens, Directional control valves, Check valves, Pressure valves, pressure control valves and pressure limiting valves, optionally with indicators and monitors, vent valves; Control apparatus being parts of machines, in particular for hydraulic and pneumatic installations, in particular flow-dividers and control blocks, including valve control blocks; Hydraulic or pneumatic operating cylinders, being parts of machines; Hydraulic and pneumatic motors and engines, Gears, Couplings, Pumps and compressors, in each case being parts of machines; Hydraulic or pneumatic drive units for land, air and water vehicles and being parts of machines, in particular for process engineering, for general machine construction and for vehicles, in particular for construction machines, for machine tools, for machines for manufacturing plastics, for drives for tools, for presses, for transport installations, for shipping and aeronautics, for chemical and reactor technology, for mining and iron and steel works, and for rolling mills, in particular consisting of at least one hydraulic pump, at least one drive motor and at least one container of metal or plastic for liquids; Hydraulic motors and engines; Control apparatus, in particular electric, electro-mechanical and electro-hydraulic control apparatus (included in class 7); Lubricating apparatus and equipment, lubricating installations, supply apparatus, in particular distributors for stationary and mobile application; Mechanically operated clamping apparatus, clamping machines and clamping tools; Motor-driven hydraulic pressure and feed pumps, being parts of machines, adjustable and non-adjustable; Hydraulic drive units for elevator controllers, transport controllers and lift controllers, in particular consisting of a hydraulic pump, a drive motor and a liquid container of metal or plastic; Machines for industrial washing and cleaning.

Class 9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; Electric installations and components of all kinds, included in class 9, in particular for use in the automobile industry, including mobile hydraulics, the semiconductor industry, the food industry, aeronautics, medicine, pharmacy, oil and gas transport technology, environmental engineering, laboratory and testing technology, household and sanitary systems, as well as in mining and in the field of steelworks, power plants, wind power installations, machine tools, transfer presses and plastic injection moulding machines; Electrical motors, Control equipment and apparatus for elevator controllers; Resonators; Indicator, monitor and control apparatus for level, pressure, temperature and quantity for gaseous and liquid media, manometer monitoring switches; Switching equipment, Monitoring apparatus and diagnostic apparatus for technical applications; Apparatus, Instruments and components for conducting, Switching, Converting, Storing, Regulating or controlling electricity; Transducers; Actuators; Sensors, including pressure sensors, Flow sensors, Temperature sensors, Level sensors, Sensors for detecting state variables of liquids and gases, fluid flow sensors, Viscosity sensors, Gas sensors, Conductivity sensors, sensors for determining relative permittivity, moisture sensors, Optical sensors, Magnetic sensors, Capacitive sensors, Chemical sensors, Thermoelectric sensors, Distance sensors, Incline sensor, Particle counters, piezoelectric actuators, electrostatic actuators and magnetic actuators; Active and passive electric and electronic components; Active and passive electric and electronic components manufactured using thick-film and thin-film technology; Microwave antennae; Magnets, including in combination with valve switching components, except ignition magnets for motors and engines; Optical equipment and apparatus, including cameras, microscopes, optical recording apparatus, in particular for analysis and metrology; Optical particle counting apparatus; Individual parts for electronic apparatus, in particular logical elements, electrotechnical and electronic component parts and units consisting thereof, in particular printed circuits, semiconductor component parts, integrated circuits, memory components, resistors, microprocessors; Circuit boards with electrotechnical and electronic assemblies and component parts of computers and data processing installations, and electric and electronic installations for monitoring, testing and controlling industrial working processes and of apparatus and instruments in the mechanical engineering field, in particular semiconductor components; Electronic, electrotechnical and mechanical apparatus, equipment and instruments, in particular for computers and systems constructed from the aforesaid goods, including peripheral apparatus for the acquisition, display, output and transmission of data and for manufacturing and process technology; Computers, in particular computers for research, scientific and industrial purposes, in particular for technical and scientific applications; Data processing programs for these computers recorded on machine-readable data carriers, in particular magnetic disks and tapes and diskettes; Computer software; Electronic and electrotechnical instruments, devices and equipment parts for manufacturing and engineering; Dosage dispensers; Control apparatus and vehicle stabilisation systems, including roll stabilisation devices.

Class 11: Filter devices and filters for heating, steam-generating, refrigerating, drying, ventilating, water supply, water treatment, air-conditioning, and sanitary installations and apparatus; Spare parts for the aforesaid goods; Coalescers, high-pressure, medium-pressure and low-pressure filters, liquid filters, line filters and process line filters, gas filters, including for seal gas systems, cyclone filters and other separating filters, filling filters and ventilation filters, full flow filters and bypass filters, multistage filters, return flow filters, including suction filters and return flow suction filters, tank-integrated filters, including ventilating and drying devices, drum filters and strip winding filters, perforated plate filters and screen filters, offline filters and inline filters and spin-on filters, plastic melt filters, membrane filters, filter units together with draining apparatus; Filter elements, Perforated sheet filter and screen filter elements, gap-type tube filter elements, rheological filter elements, flow filter elements, Filter candles, Filter cartridges, Filter housings, Filter sheets and disc filter elements, Filter mats, Filter pots, filter cloths, filter bags, Filter belts, filter packs and depth filter elements, including woven materials for filters; Gas-technical installations and Components, All the aforesaid goods included in class 11, In particular for use in the automobile industry, including mobile hydraulics, the semiconductor industry, the food industry, aeronautics, medicine, pharmacy, oil and gas transport technology, environmental engineering, laboratory and testing technology, household and sanitary systems, and in mining and in the field of steelworks, Power plants, Wind-power installations, Machine tools, transfer presses and plastic injection moulding machines; Heat exchangers for stationary and mobile applications for exchanging heat between liquid and/or gaseous media; Cooling and heating installations for media therein.

Class 37: New installation, commissioning, inspection, maintenance, repair, inspection and replacement of hydraulic, electric and electronic installations, devices and their components; Maintenance of mobile and stationary filter systems, cross-flow filtration and solvent recovery; Maintenance of fluids such as hydraulic and cooling lubricant liquids and gases; Processing and disposal of tribological systems, including filters and filter components in compliance with environmental regulations, including emission standards and other environmental criteria.

Class 42: Scientific and technological services and research and design relating thereto; Industrial analysis and research services; Computer software and hardware design and development; Conducting fluid and gas technology and chemical analysis; Chemistry services; Engineering services; Physics research; Technical research; Mechanical research; Research in the field of microsystems engineering; Chemical research; Physics (research); Consultancy in the field of oil state monitoring; Consultancy in the field of oil treatment, namely consultancy with regard to preventing the aging of oil, foreign particles in oil, including water, rust and other pollutants, bearing wear, corrosion and damage; Testing, measuring, checking (supervision) and documenting services in the field of fluid technology, sensor technology, environmental technology and process engineering; Surveying; Materials testing; Technical project studies; Quality control; Creation of data-processing programs; Computer programming; Research and development (for others); Material testing; Development of processes for the manufacture of new products using thin-film technology; Development of product structures and layouts; Development of sensors, measuring processes and measuring principles; Implementation of optimisation work, including simulations of these areas; Application of measuring technologies of all kinds.

The contested goods and services are the following:

Class 7: High pressure compressors; jetting; Compressors [machines]; Air compressors; High pressure air compressors; Diesel powered air compressors; Compressors for high pressure cleaning and -cleaning; Compressor machines; Control mechanisms for compressors; Integrated compressor and pump systems for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning the ductwork and piping systems, and removal of rust and antifouling; Integrated compressor and pump systems for industrial cleaning; Machines for use in mines; Pumps [parts of machines or engines]; Pumps [machines]; Diesel pumps; Pumps for high pressure cleansing and -cleaning; Pumps for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning of ductwork and piping, removing rust and antifouling; Pumps for industrial cleaning; Airpowered machines; Pneumatic pumps; Pressure regulators [parts of machines]; Pressure valves [parts of machines]; Turbo Compressors; Fans for motors and engines.

Class 37: Installation services; Installation, repair and maintenance of High pressure compressors, jetting, Compressors [machines], Air compressors, High pressure air compressors, Diesel powered air compressors, Compressors for high pressure cleaning and -cleaning, Compressor machines, Control mechanisms for compressors, Integrated compressor and pump systems for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning the ductwork and piping systems, and removal of rust and antifouling, Integrated compressor and pump systems for industrial cleaning, Machines for use in mines, Pumps [parts of machines or engines], Pumps [machines], Diesel pumps, Pumps for high pressure cleansing and -cleaning, Pumps for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning of ductwork and piping, removing rust and antifouling, Pumps for industrial cleaning, Airpowered machines, Pneumatic pumps, Pressure regulators [parts of machines], Pressure valves [parts of machines], Turbo Compressors, Fans for motors and engines; Information about the installation, repair and maintenance of High pressure compressors, jetting, Compressors [machines], Air compressors, High pressure air compressors, Diesel powered air compressors, Compressors for high pressure cleaning and -cleaning, Compressor machines, Control mechanisms for compressors, Integrated compressor and pump systems for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning the ductwork and piping systems, and removal of rust and antifouling, Integrated compressor and pump systems for industrial cleaning, Machines for use in mines, Pumps [parts of machines or engines], Pumps [machines], Diesel pumps, Pumps for high pressure cleansing and -cleaning, Pumps for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning of ductwork and piping, removing rust and antifouling, Pumps for industrial cleaning, Airpowered machines, Pneumatic pumps, Pressure regulators [parts of machines], Pressure valves [parts of machines], Turbo Compressors, Fans for motors and engines; Pump repair; Cleaning machines (Rental of -).

Class 42: Technological services and research and design relating thereto; Industrial analysis and research services; Design and development of High pressure compressors, jetting, Compressors [machines], Air compressors, High pressure air compressors, Diesel powered air compressors, Compressors for high pressure cleaning and -cleaning, Compressor machines, Control mechanisms for compressors, Integrated compressor and pump systems for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning the ductwork and piping systems, and removal of rust and antifouling, Integrated compressor and pump systems for industrial cleaning, Machines for use in mines, Pumps [parts of machines or engines], Pumps [machines], Diesel pumps, Pumps for high pressure cleansing and - cleaning, Pumps for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning of ductwork and piping, removing rust and antifouling, Pumps for industrial cleaning, Air-powered machines, Pneumatic pumps, Pressure regulators [parts of machines], Pressure valves [parts of machines], Turbo Compressors, Fans for motors and engines; Engineering; Engineering on High pressure compressors, jetting, Compressors [machines], Air compressors, High pressure air compressors, Diesel powered air compressors, Compressors for high pressure cleaning and -cleaning, Compressor machines, Control mechanisms for compressors, Integrated compressor and pump systems for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning the ductwork and piping systems, and removal of rust and antifouling, Integrated compressor and pump systems for industrial cleaning, Machines for use in mines, Pumps [parts of machines or engines], Pumps [machines], Diesel pumps, Pumps for high pressure cleansing and - cleaning, Pumps for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning of ductwork and piping, removing rust and antifouling, Pumps for industrial cleaning, Air-powered machines, Pneumatic pumps, Pressure regulators [parts of machines], Pressure valves [parts of machines], Turbo Compressors, Fans for motors and engines; Quality control; Quality control relating to High pressure compressors, jetting, Compressors [machines], Air compressors, High pressure air compressors, Diesel powered air compressors, Compressors for high pressure cleaning and - cleaning, Compressor machines, Control mechanisms for compressors, Integrated compressor and pump systems for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning the ductwork and piping systems, and removal of rust and antifouling, Integrated compressor and pump systems for industrial cleaning, Machines for use in mines, Pumps [parts of machines or engines], Pumps [machines], Diesel pumps, Pumps for high pressure cleansing and -cleaning, Pumps for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning of ductwork and piping, removing rust and antifouling, Pumps for industrial cleaning, Airpowered machines, Pneumatic pumps, Pressure regulators [parts of machines], Pressure valves [parts of machines], Turbo Compressors, Fans for motors and engines; Oil wells (control and test of -); Monitoring of computer systems by remote access; Consultancy relating to the use of High pressure compressors, jetting, Compressors [machines], Air compressors, High pressure air compressors, Diesel powered air compressors, Compressors for high pressure cleaning and -cleaning, Compressor machines, Control mechanisms for compressors, Integrated compressor and pump systems for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning the ductwork and piping systems, and removal of rust and antifouling, Integrated compressor and pump systems for industrial cleaning, Machines for use in mines, Pumps [parts of machines or engines], Pumps [machines], Diesel pumps, Pumps for high pressure cleansing and -cleaning, Pumps for renovation and maintenance of ships, maintenance platforms, cleaning boat decks and ballast tanks, cleaning of ductwork and piping, removing rust and antifouling, Pumps for industrial cleaning, Airpowered machines, Pneumatic pumps, Pressure regulators [parts of machines], Pressure valves [parts of machines], Turbo Compressors, Fans for motors and engines.

Some of the contested goods and services are identical 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 and services were identical to those of the earlier mark.

2. Relevant public — degree of attention

In the present case, most of the goods and services assumed to be identical are specialised goods and services directed at business customers with professional knowledge or expertise in the relevant technical field, such as the installation, maintenance and repair of machine and engine parts. Consequently, the degree of attention is considered high for these goods and services, since they relate to particularly sophisticated technical products and components for which the application or provision of professional assistance, or at least professional knowledge, is usually required.

However, some of the contested goods and services may also be sold to a non-specialised public; in particular, this might be the case with the contested compressors and pumps; installation services, cleaning machines (rental of-), etc. The mere fact that non-professional consumers may be included in the targeted public does not automatically mean that the general public will display a lower degree of attention with respect to the products and services in which it is interested. The average consumer is in general regarded as being reasonably well-informed, observant and circumspect. Account is also taken of the fact that their degree of attention is likely to vary according to the nature of the relevant goods or services and, as in the present case, to be heightened when the specific goods in question are not frequently purchased. Furthermore, it may be assumed that consumers who lack professional knowledge and expertise in a particular area usually investigate that area before purchasing or renting services.

In addition, as confirmed by the Court, the impact on safety of goods covered by a trade mark (for example, lights for vehicles, saws, electric accumulators, electric circuit breakers, electric relays, etc.) will often result in an increase in the relevant consumer’s degree of attention (22/03/2011, T‑486/07, CA, EU:T:2011:104, § 41). This finding may be applied to the present case as regards many of the conflicting goods and services, such as industrial pumps, valves, compressors, engines, etc. Industrial working environments usually involve higher security and safety standards and a higher degree of attention will be paid to goods intended for use in such environments.

3. The signs

HYDAC	HIPAQ
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 conflicting signs are word marks. The earlier mark consists of the verbal element ‘HYDAC’ and the contested sign consists of the verbal element ‘HIPAQ’.

Neither of the marks has any element that could be considered clearly more distinctive or dominant than other elements.

Visually, the signs coincide in their first and fourth letters, namely ‘H**A*’. They differ in their remaining letters, namely ‘*YD*C’ in the earlier mark versus ‘*IP*Q’ in the contested sign. As the signs coincide in only two out of five letters, they are considered similar to a low degree.

Aurally, for a substantial part of the public, the pronunciation of the signs will coincide in four out of five letters since, according to the different pronunciation rules that apply, part of the public, e.g. Spanish, Italian, French, German, Dutch or Danish speakers, will pronounce the second letters ‘I’ and ‘Y’ as [I] and the last letters ‘C’ and ‘Q’ as [K]. Furthermore, for part of that public, in particular for Spanish, Italian and French speakers, the first letter in the signs, ‘H’, will be silent and the signs will be pronounced as [IDAK] versus [IPAK]. English speakers, on the other hand, will pronounce the signs as [HAIDAK] versus [HAIPAK]. Therefore, for these parts of the public, the signs are aurally similar to a high degree.

However, the pronunciation will differ for another part of the public. In particular, a significant part of that public (e.g. Polish, Czech, Slovak, Slovenian, Latvian or Lithuanian speakers) will pronounce the earlier mark as [HIDATS] and the contested sign as [HIPAK]; consequently, the signs are similar only to a low degree for this part of the public.

Conceptually, neither of the signs has a meaning for the public in the relevant 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 have been found visually and aurally similar to a certain extent, the examination of likelihood of confusion will proceed.

4. 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.

5. Global assessment, other arguments and conclusion

The goods and services have been assumed to be identical and the degree of attention is considered to be high for both the professional and non-professional public, insofar as at least a degree of technical knowledge and attentiveness must be displayed in their use or provision. In addition, various safety factors must be considered.

The signs are similar to the extent that they are word marks consisting of letter sequences with analogous structures; furthermore, they coincide in several letters, in particular as regards the aural assessment of the signs.

However, the Opposition Division considers that the similarities are not sufficient to outweigh the visual differences between the signs arising from the letters ‘Y’ versus ‘I’, ‘D’ versus ‘P’ and ‘C’ versus ‘Q’. Despite the presence of the identical letter ‘H’ at the beginnings of the word marks, as well as their similar structures, the relevant public is deemed to be able to distinguish between the signs. Furthermore, the relevant professional and non-professional publics are considered observant and reasonable, with a heightened degree of attention in relation to the goods and services in question. This is because the goods or services relate to highly technical and/or mechanical skills or the consumer will at least conduct some investigation and research before purchasing or using them.

In terms of the aural perception of the signs, for a significant part of the public the signs will have fundamentally different pronunciations, while for another part of the public the pronunciations will be fairly similar, because of the identical pronunciations of the phonemes ‘Y’/‘I’ and ‘Q’/‘C’.

In addition, the Court has stated that, when evaluating the importance attached to the degree of visual, aural and conceptual similarity between signs, it is appropriate to take into account the category of goods or services in question and the way they are marketed (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 27). The category of goods and services involved may increase the importance of one of the different aspects of similarity between signs (visual, aural and conceptual) because of the way in which the goods and services are ordered and/or purchased. An aural comparison between signs may be less important in the case of goods and services that are usually examined visually or involve commercial activities where, for the sake of the consumers’ own satisfaction and/or safety, a higher degree of attention must be displayed. In such cases, the visual impression given by the signs counts for more in the assessment of likelihood of confusion.

In the present case, the Opposition Division notes that the aural similarities are deemed to be of lesser importance and to have less impact, since most of the goods and services entail infrequently purchased and very specialised goods and services. Although some of the goods and services may be sold to the general public, they will still target a narrower part of that public, as it is very unlikely that goods and services such as foodstuffs, entertainment electronics, cars, etc., will be advertised or marketed aurally over the radio or on television. Furthermore, consumers from the general public who lack particular knowledge will probably compensate for this with their own research, which may involve professional journals or professional websites in the field. In addition, even if the average consumer’s initial contact with a company happens to be aural (e.g. on the phone), written information will usually be requested because of the sophistication and the different technical specifications of the relevant goods/services. By way of example, if services in Class 37 were concerned, in particular installation, repair or rental services, the companies in question would usually provide a service guarantee, or the relevant consumers would at least expect this.

In conclusion, professional consumers in the relevant field are expected to be familiar or experienced with the market environment. Non-professional consumers are expected to be highly attentive when purchasing a technical product or looking for related services involving maintenance, repair, installation, etc. It can therefore hardly be expected that consumers would base their purchases solely on an aural encounter with the sign in question. Consequently, the visual impression will be a crucial factor in the assessment of the signs in question and, as illustrated above, there are significant visual differences between the signs.

Considering all the relevant factors, even assuming that the goods and services are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR because the signs are obviously not identical.

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

Steve HAUSER

Benoit VLEMINCQ

Volker MENSING

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.