OFFICE FOR HARMONIZATION IN THE INTERNAL MARKET
(TRADE MARKS AND DESIGNS)
OPPOSITION No B 2 435 306
Macosmi-Fábrica de Calçado, Lda, Rua Manuel Sousa Oliveira, nº 382, Santo Tirso, 4785-476 São Martinho do Campo, Portugal (opponent), represented by J. Pereira Da Cruz, S.A., Rua Victor Cordon, 14, 1249-103 Lisboa, Portugal (professional representative)
a g a i n s t
Your Concept, Unipessoal, Lda., Rua Miguel Bombarda, nº 112, 1º, 2350 449 Torres Novas, Portugal (applicant), represented by Carlos Eugenio Reis Nobre, Inventa International, Av. Almirante Reis, 123, 1F, 1169-157 Lisboa, Portugal (professional representative).
On 26/10/2015, the Opposition Division takes the following
2. The opponent bears the costs, fixed at EUR 300.
opponent filed an opposition against all the goods and services of
Community trade mark application No
LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) CTMR
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.
Earlier trade mark
The relevant territory is the European Union.
The earlier mark consists of a broken curved white line that forms two rounded shapes, which could be seen as two links of a chain, against a square black background, whereas the contested sign consists of the verbal element ‘oursoul’ in slightly stylised black lower case letters and a figurative element consisting of a curved black line that forms a rounded shape and that could be seen as depicting a wave.
As the signs do not visually coincide in any element, it is concluded that the signs are not visually similar.
Purely figurative signs are not subject to a phonetic assessment. As one of the signs is purely figurative, it is not possible to compare them aurally.
Conceptually, the verbal element of the contested sign does not have a meaning as a whole. However, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, when perceiving a word sign, he will break it down into elements which, for him, suggest a specific meaning or which resemble words known to him (judgment of 13/02/2007, T‑256/04, ‘RESPICUR’). Therefore, the English-speaking part of the public will perceive this verbal element as a combination of ‘our’, meaning ‘of, belonging to, or associated in some way with us’ (information extracted from Collins English Dictionary used on 01/10/2015 at http://www.collinsdictionary.com/dictionary/english/our), and ‘soul’, meaning ‘the spirit or immaterial part of man, the seat of human personality, intellect, will, and emotions, regarded as an entity that survives the body after death’ (information extracted form Collins English Dictionary used on 01/10/2015 at http://www.collinsdictionary.com/dictionary/english/soul). The figurative elements of the conflicting signs do not convey straightforward meanings.
The opponent argues that the earlier sign is a mathematical infinity symbol, whereas the figurative element of the contested sign is an incomplete infinity symbol. The Opposition Division considers that the figurative elements would not be perceived as referring to a similar concept since the contested sign does not depict two interconnected rounded or oval shapes, which are characteristic of the infinity symbol, and the two rounded shapes of the earlier sign are formed by several bands and, likewise, are not interconnected.
Consequently, the signs are not conceptually similar.
As the signs do not coincide in any element, it is concluded that they are dissimilar.
According to Article 8(1)(b) CTMR, the similarity of the signs is a condition for a finding of likelihood of confusion. Since the signs are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) CTMR is not fulfilled, and the opposition must be rejected.
According to Article 85(1) CTMR, 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 (7)(d)(ii) CTMIR, 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
According to Article 59 CTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 CTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. 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 800 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) CTMIR, 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 (Article 2(30) CTMFR) has been paid.