OPPOSITION No B 2 458 084

Sfera Joven, S.A., Hermosilla 112, 28009 Madrid, Spain (opponent), represented by J.M. Toro, S.L.P., Viriato 56 - 1º izda, 28010 Madrid, Spain (professional representative)

a g a i n s t

Chiyoda Corporation, 4-6-2, Minatomirai, Nishi-ku, Yokohama-shi, 2208765 Kanagawa, Japan (applicant), represented by Wilson Gunn, 5th Floor Blackfriars House The Parsonage, Manchester M3 2JA, United Kingdom (professional representative).

On 19/12/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 458 084 is partially upheld, namely for the following contested goods and services:

Class 1: Hydrogen; toluene; methylcyclohexane; other chemicals including aromatics, aliphatics, phenols, ethers, organic acids, alkalies, chemical preparations, oxides, catalysts.

Class 4: Hydrogen fuels, solid fuels, liquid fuels, gaseous fuels, other fuels, solid lubricants, industrial oil, non-mineral oils and greases for industrial purposes [not for fuel], waxes [raw material].

Class 39: Transportation by rail, automobile, boat and airplane; transportation (transport); providing information in relation to all of the aforesaid services, including via computer networks; advisory and consulting services in relation to the aforesaid services

2. European Union trade mark application No 13 146 014 is rejected for all the above goods and services. It may proceed for the remaining services.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 13 146 014 for the word mark ‘SPERA Hydrogen’, namely against all the goods and services in Classes 1, 4 and 39. The opposition is based on the following earlier marks:

- European Union trade mark registration No 2 296 440 for the figurative mark ;

- European Union trade mark registration No 806 481 for the figurative mark ;

- Spanish trade mark registration No 2 991 443 for the word mark ‘SFERA’.

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.

1. Likelihood of confusion in relation to European Union trade mark registration No 2 296 440 and European Union trade mark No 806 481

The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 2 296 440.

a) The goods and services

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

Class 1: Chemicals used in industry, science and photography, as well as in agriculture, horticulture and forestry; unprocessed artificial resins, unprocessed plastics; manures; fire extinguishing compositions; tempering and soldering preparations; chemical substances for preserving foodstuffs; tanning substances; adhesives used in industry.

Class 4: Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels (including motor spirit) and illuminants; candles, wicks.

Class 39: Travel arrangement.

The applicant stated that the opponent is a fashion retailer. However, in the absence of the obligation to prove use of the earlier marks, the lists of goods and services to be compared are those registered/applied for and not the one used in the market (17/01/2012, T‑249/10, Kico, EU:T:2012:7, § 23). Therefore, the applicant’s arguments should be set aside.

The contested goods and services are the following:

Class 1: Hydrogen; toluene; methylcyclohexane; other chemicals including aromatics, aliphatics, phenols, ethers, organic acids, alkalies, chemical preparations, oxides, catalysts.

Class 4: Hydrogen fuels, solid fuels, liquid fuels, gaseous fuels, other fuels, solid lubricants, industrial oil, non-mineral oils and greases for industrial purposes [not for fuel], waxes [raw material].

Class 39: Hydrogen distribution and brokerage (transport) thereof; gaseous or liquid fuel distribution and brokerage (transport) thereof; distribution of energy including gas, electricity, water and heat, and brokerage (transport) thereof; transportation and storage of hydrogen, gas, water, fuel, chemicals or energy, and brokerage (transport and storage) thereof; transportation and storage, and brokerage (transport and storage) thereof; storage and bottling of hydrogen after chemical reaction with toluene, and brokerage (storage and bottling) thereof; storage and bottling of hydrogen produced by dehydrogenation of methylcyclohexane, and brokerage (storage and bottling) thereof; storage and bottling of hydrogen; storage and bottling of methylcyclohexane produced by hydrogenation of toluene, and brokerage (storage and bottling) thereof; storage and bottling of methylcyclohexane, and brokerage (storage and bottling) thereof; storage and bottling of chemicals or fuels produced through chemical reactions, and brokerage (storage and bottling) thereof; storage and bottling of chemicals or fuels, and brokerage (storage and bottling) thereof; transportation by rail, automobile, boat and airplane; packaging of goods; warehousing services; temporary storage of personal belongings; temporary storage of deliveries; rental of gasoline station equipment [not for repair and maintenance of automobiles]; rental of hydrogen station equipment [not for repair and maintenance of automobiles]; providing information in relation to all of the aforesaid services, including via computer networks; advisory and consulting services in relation to the aforesaid services.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

The term ‘including’, used in the applicant’s list of goods and services, indicates that the specific goods and services are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

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.

Contested goods in Class 1

The contested hydrogen; toluene; methylcyclohexane; other chemicals including aromatics, aliphatics, phenols, ethers, organic acids, alkalies, chemical preparations, oxides, catalysts are included in the broad category of the opponent’s chemicals used in industry, science and photography, as well as in agriculture, horticulture and forestry. Therefore, they are identical.

Contested goods in Class 4

The contested hydrogen fuels, solid fuels, liquid fuels, gaseous fuels, other fuel are included in the broad category of the opponent’s fuels (including motor spirit). Therefore, they are identical.

The contested solid lubricants are included in the broad category of the opponent’s lubricants. Therefore, they are identical.

The contested industrial oil, non-mineral oils and greases for industrial purposes [not for fuel], are identical to the opponent’s industrial oils and greases, because they are identically contained or at least included in the opponent’s broader category.

The contested waxes [raw material] are similar to a low degree to the opponent’s wicks. Indeed, wicks for lighting and wax are both essential components to make candles. They have therefore similar purposes. Furthermore, they target the same public and are sold through the same distribution channels.

Contested services in Class 39

The opponent’s travel arrangement consists of services related to organising the movement of people from one place to another, which consists in planning the trip and making reservations for hotels, restaurants, local travel, etc. These services are usually rendered by travel agencies/tour operators in the business of selling travel products, such as flight tickets, package holidays or temporary accommodation. As such, they have the same purpose as and are complementary to the contested transportation by rail, automobile, boat and airplane; transportation (transport) consisting in moving goods or people from one place to another. Moreover, the aforementioned services can be offered through the same channels to the same customers. In addition, they can have the same transport purpose. Consequently, they are considered highly similar.

The contested providing information in relation to all of the aforesaid services, including via computer networks; advisory and consulting services in relation to the aforesaid services [transportation by rail, automobile, boat and airplane; transportation (transport)] are included in the broad category of the opponent’s travel arrangement. Therefore, they are identical.

The remaining contested services are different to the opponent’s goods and services in Classes 1, 4 and 39. As regards the comparison between the services, they are of a clearly different nature, purpose and method of use, and are not provided by the same companies through the same distribution channels. The remaining contested services are specialised services which are provided by specific undertakings.

As regards a similarity between these services and the opponent’s goods in Classes 1 and 4, it has to be recalled that goods or services are complementary where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking (30/04/2014, T‑170/12, Beyond Vintage, EU:T:2014:238, § 32 and the case-law cited). A complementary connection implies that the goods or services can be used together, which presupposes that they are intended for the same public. It follows that, by definition, there can be no complementary connection when the categories of relevant consumers of the goods and services at issue are different (22/06/2011, T‑76/09, Farma Mundi Farmaceuticos Mundi, EU:T:2011:298, § 30 and the case-law cited therein). In order for goods to be regarded as being in competition, there must be an element of interchangeability between them (04/02/2013, T‑504/11, Dignitude, EU:T:2013:57, § 42).

Notwithstanding that the Opposition Division is not precluded from taking into consideration facts that are well known, which means facts that are likely to be known by anyone or could be learnt from generally accessible sources, this does not imply that the Opposition Division is allowed to carry out extensive research to be completely sure that its finding regarding the comparison of goods and/or services is correct. In fact, the Opposition Division is prohibited from doing so (09/02/2011, T‑222/09, Alpharen, EU:T:2011:36, § 28-37).

The importance of the submissions of the parties to provide specific and substantiated information may have a decisive impact on the outcome of the case, especially if the goods and services are not goods for everyday mass consumption, but specialised goods and services that target a professional public.

The goods and services at issue are not only different in nature, they also differ in purpose. Furthermore, even if the manufacturers of the opponent’s goods were eventually involved in providing some of the remaining contested services, they usually do not provide such services to third parties. Moreover, to the Opposition Division’s knowledge and without any evidence on file showing otherwise, the specialised distribution channels and sales outlets are different and the goods and services are not in competition or complementary. Therefore, these contested services and the opponent’s goods are also dissimilar.

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 and services found to be identical and similar to various degrees are mainly directed at business customers with specific professional knowledge, even if some of the goods and services might also target the general public.

The degree of attention will vary from average to high depending on the specialised nature of goods and services. In particular, as regard the contested waxes [raw material], the level of attention is average.

c) The signs

	SPERA Hydrogen
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 earlier trade mark is figurative and is composed of the word ‘SFERA’, stylised in black and white with the word ‘COLOURS’ underneath it. There is a black square on the left in which there is a white crescent moon. These figurative elements are rather standard and have little trade mark significance.

The element ‘SFERA’ will be perceived by part of the relevant public, in particular the Spanish-speaking part of the public as a reference to the concept of a ‘sphere’, which means ‘solid figure with a rounded surface, with every point on its surface equidistant from another internal point referred to as the centre’ or a ‘circle in which clock hands move around’. (24/07/2018, R 2631/2017-5, Cata y el misterio de la esfera (fig.) / Sfera colours (fig.) et al § 32). Regardless of the understanding of this word, ‘SFERA’ has an average degree of distinctive character, as it has no meaning in relation to the relevant goods and services.

The English word ‘COLOURS’ will be understood as such by at least part of the public, as it is highly similar to its equivalents in some languages, such as ‘couleurs’ in French, or the Spanish term ‘colores’.

‘COLOURS’ has no meaning in relation to the relevant goods and services and has an average degree of distinctive character.

The contested sign is a word mark composed of the words ‘SPERA’ and ‘hydrogen’. ‘SPERA’ is meaningless for part of the public, for instance the French-speaking part of the public, whereas, as correctly pointed out by the applicant, ‘SPERA’ will be understood as meaning ‘hope’, for instance by the Italian-speaking part of the public. In any case, this word has no meaning in relation to the goods and services at issue and has an average degree of distinctive character.

The English word ‘Hydrogen’ is highly similar to equivalents in various other EU languages, such as ‘hydrogène’ in French and to the Spanish equivalent ‘hidrógeno’. The word is non-distinctive or at least weak in relation to most of the goods and services, either because it describes the nature of the products (in particular for goods in Class 1), or because it alludes to an indispensable component of the goods (e.g. in relation to fuel).

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The words ‘SFERA’ and ‘SPERA’ are meaningless for the French-speaking part of the public. Indeed, even though the word ‘sphère’ exists in French, the Opposition Division considers that a vast majority of the public will not see a reference to this word. Therefore, the Opposition Division finds it appropriate to focus the comparison of the signs on the French-speaking part of the public, as these words do not create a conceptual dissimilarity between the signs.

The word ‘SFERA’ is the dominant element of the earlier mark, considering its size and its position in the mark.

Visually, the signs coincide in the string of letters ‘S*ERA’ and differ in the second letter, namely ‘F’ in the earlier mark and ‘P’ in the contested sign. They further differ in their respective additional words and in the figurative elements of the earlier mark.

The difference stemming from their respective additional elements should however not be overrated. As already indicated, ‘Hydrogen’ is non-distinctive (or at least weak), whereas the word element ‘Colours’ is visually less eye catching than ‘Sfera’. Furthermore, the fact that the word element ‘Sfera’ is in title-case letters whereas ‘SPERA’ is in upper-case letters is irrelevant, as the protection which results from registration of a word mark concerns the word mentioned in the application for registration and not the specific graphic or stylistic elements accompanying that mark (29/03/2012, T‑369/10, Beatle, EU:T:2012:177, § 42).

In addition, when a trade mark contains verbal and figurative elements, in such cases, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37; decisions of 19/12/2011, R 233/2011‑4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011‑5, Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).

Moreover, consumers generally tend to focus on the beginning of a sign when they encounter a mark. In the present case, the fact that the respective first element of the marks are highly similar enhances the similarity.

Finally, the letter ‘F’ and ‘P’ are not extremely visually different and are not able to create an obvious visual dissimilarity.

Considering the foregoing, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘S*ERA’ and differs in their respective additional word, namely ‘hydrogen’ in the contested sign and ‘Colours’ in the earlier mark, as well as their respective second letter, that is, ‘F’ in the earlier mark and ‘P’ in the contested sign.

Moreover, consumers do not tend to pronounce weak or non-distinctive verbal elements, so, despite the applicant’s arguments, it is likely that at least part of the relevant public will not pronounce the word ‘Hydrogen’. The words ‘Sfera’ and ‘Spera’ have an highly similar sound from the relevant public’s perspective, because they will be pronounced in two syllables ‘sfé(spé)/ra’. The differing sound is somewhat hidden in an array of additional sounds.

Given the foregoing, the signs are aurally similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Considering that ‘Hydrogen’ is non-distinctive (or at least weak), it has little influence in the conceptual comparison. In addition, the figurative element of the earlier mark also has limited trade mark significance. Therefore, the only element conveying a distinctive concept is the word element ‘Colours’ and to that extent the signs are not conceptually similar. However, the influence of this non-similarity is likely to be reduced, given that it comes from an element that has less significance in the earlier mark, because of its size and position.

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 public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) Global assessment, other arguments and conclusion

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).

In the present case, the conflicting signs are visually similar to an average degree, aurally highly similar, and conceptually not similar. The contested goods and services are partly identical, partly similar to various degrees and partly dissimilar.

The earlier mark has an average degree of distinctive character. The relevant public will display a degree of attention varying from average to high.

The signs are similar overall, insofar as the first word element in both marks (which usually has more significance in the relevant public’s perception), is highly similar. Furthermore, the differing elements have a limited influence, being either non distinctive (or weak), or less dominant.

Moreover, account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the French-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical or similar to various degrees to those of the earlier trade mark. Indeed, even for goods found to be similar to a low degree, the Opposition Division considers that there is a likelihood of confusion bearing in mind that these goods also target the general public, and that considering the goods at issue, the degree of attention will be average.

The rest of the contested services are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this article and the earlier EUTM No 2 296 440 and directed at these services cannot be successful.

The opponent has also based its opposition on European Union trade mark No 9 806 481, for the figurative mark and on the following goods, bleaching preparations and other substances for laundry use; cleaning, polishing, degreasing and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices in Class 3.

This other earlier right invoked by the opponent covers goods which are clearly different to the remaining services of the contested mark. Indeed, the opponent’s goods are products used to enhance a person’s appearance and cleaning preparations, whereas the contested services are storage, transport and distribution services. Therefore, the outcome cannot be different with respect to services for which the opposition has already been rejected; no likelihood of confusion exists with respect to those services.

Finally, the opponent based its opposition on Spanish trade mark registration No 2 991 443, for the word mark ‘SFERA’. For ease of understanding and because the scope of protection is different, the Opposition Division will conduct a full comparison.

2. Likelihood of confusion in relation to Spanish trade mark registration No 2 991 443

a) The services

The services on which the opposition is based are the following:

Class 39: Transport services; packaging and storage of goods; travel arrangements.

The remaining contested services are the following:

Class 39: Hydrogen distribution and brokerage (transport) thereof; gaseous or liquid fuel distribution and brokerage (transport) thereof; distribution of energy including gas, electricity, water and heat, and brokerage (transport) thereof; transportation and storage of hydrogen, gas, water, fuel, chemicals or energy, and brokerage (transport and storage) thereof; storage, and brokerage (storage) thereof; storage and bottling of hydrogen after chemical reaction with toluene, and brokerage (storage and bottling) thereof; storage and bottling of hydrogen produced by dehydrogenation of methylcyclohexane, and brokerage (storage and bottling) thereof; storage and bottling of hydrogen; storage and bottling of methylcyclohexane produced by hydrogenation of toluene, and brokerage (storage and bottling) thereof; storage and bottling of methylcyclohexane, and brokerage (storage and bottling) thereof; storage and bottling of chemicals or fuels produced through chemical reactions, and brokerage (storage and bottling) thereof; storage and bottling of chemicals or fuels, and brokerage (storage and bottling) thereof; packaging of goods; warehousing services; temporary storage of personal belongings; temporary storage of deliveries; rental of gasoline station equipment [not for repair and maintenance of automobiles]; rental of hydrogen station equipment [not for repair and maintenance of automobiles]; providing information in relation to all of the aforesaid services, including via computer networks; advisory and consulting services in relation to the aforesaid services.

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 hydrogen distribution and brokerage (transport) thereof; gaseous or liquid fuel distribution and brokerage (transport) thereof; distribution of energy including gas, electricity, water and heat, and brokerage (transport) thereof are included in the broad category of the opponent’s transport services. Therefore, they are identical.

The contested storage and bottling of hydrogen after chemical reaction with toluene, and brokerage (storage and bottling) thereof; storage and bottling of hydrogen produced by dehydrogenation of methylcyclohexane, and brokerage (storage and bottling) thereof; storage and bottling of hydrogen; storage and bottling of methylcyclohexane produced by hydrogenation of toluene, and brokerage (storage and bottling) thereof; storage and bottling of methylcyclohexane, and brokerage (storage and bottling) thereof; storage and bottling of chemicals or fuels produced through chemical reactions, and brokerage (storage and bottling) thereof; storage and bottling of chemicals or fuels, and brokerage (storage and bottling) thereof; warehousing services are included in the broad category of the opponent’s packaging and storage of goods. Therefore, they are identical.

The contested transportation and storage of hydrogen, gas, water, fuel, chemicals or energy, and brokerage (transport and storage) thereof; transportation and storage, and brokerage (transport and storage) thereof are included in the broad categories of the opponent’s transport services; packaging and storage of goods. Therefore, they are identical.

Packaging of goods is identically contained in both lists of services.

The contested temporary storage of personal belongings; temporary storage of deliveries are included in the broad category of the opponent’s storage of goods. Therefore, they are identical.

The contested providing information in relation to all of the aforesaid services, including via computer networks; advisory and consulting services in relation to the aforesaid services [hydrogen distribution and brokerage (transport) thereof; gaseous or liquid fuel distribution and brokerage (transport) thereof; distribution of energy including gas, electricity, water and heat, and brokerage (transport) thereof; transportation and storage of hydrogen, gas, water, fuel, chemicals or energy, and brokerage (transport and storage) thereof; storage, and brokerage (storage) thereof; storage and bottling of hydrogen after chemical reaction with toluene, and brokerage (storage and bottling) thereof; storage and bottling of hydrogen produced by dehydrogenation of methylcyclohexane, and brokerage (storage and bottling) thereof; storage and bottling of hydrogen; storage and bottling of methylcyclohexane produced by hydrogenation of toluene, and brokerage (storage and bottling) thereof; storage and bottling of methylcyclohexane, and brokerage (storage and bottling) thereof; storage and bottling of chemicals or fuels produced through chemical reactions, and brokerage (storage and bottling) thereof; storage and bottling of chemicals or fuels, and brokerage (storage and bottling) thereof; packaging of goods; warehousing services; temporary storage of personal belongings; temporary storage of deliveries] is at least similar to the opponent’s transport services; packaging and storage of goods. These services are at least targeted at the same public, and are provided by the same undertakings and through the same distribution channels.

On the other hand, the contested rental of gasoline station equipment [not for repair and maintenance of automobiles]; rental of hydrogen station equipment [not for repair and maintenance of automobiles]; providing information in relation to all of the aforesaid services, including via computer networks; advisory and consulting services in relation to the aforesaid services are dissimilar to the opponent’s services in Class 39, as these contested services differ in nature, purpose, target consumer, usual origin, distribution channels and method of use and furthermore, nothing indicated that they are in competition or complementary, so they can only be found dissimilar.

b) Relevant public — degree of attention

In the present case, the services found to be identical are mainly directed at business customers with specific professional knowledge, even if some of the services might also target the general public.

The degree of attention will vary from average to high depending on the specialised nature of the services.

c) The signs

SFERA	SPERA Hydrogen
Earlier trade mark	Contested sign

The relevant territory is Spain.

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 relevant public will understand ‘Hydrogen’ because this word is highly similar to the Spanish equivalent, ‘hidrógeno’. In addition, ‘SFERA’ will be understood as the English word ‘sphere’ since it is highly similar to the Spanish word ‘esfera’. In the present case, account should be taken of the fact that in Spanish, when a word starts with the letter ‘S’, the public will pronounce this letter ‘es’. Therefore, ‘SFERA’ would be pronounced ‘ESFERA’ and leads the Opposition Division to find that the relevant public will perceive the meaning of the word. Following the same reasoning, ‘SPERA’ will be pronounced ‘ESPERA’ which means ‘wait or hope’.

‘SFERA’ and ‘SPERA’ have no meaning in relation to the relevant services and have an average degree of distinctiveness, whereas ‘Hydrogen’ is weak or non-distinctive in relation to most of the services, whereas in relation to a few services, such as temporary storage of personal belongings the element ‘Hydrogen’ is distinctive.

Visually and aurally, the signs coincide in the string of letters ‘S*ERA’ but differ in their respective second letter and in the additional element of the contested sign.

Considering the foregoing, and also what has already been stated in the comparison carried out above, the signs are visually and aurally similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Considering that the marks refer to two clearly different concepts, whether or not ‘hydrogen’ is distinctive, the signs are conceptually dissimilar.

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 public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) Global assessment, other arguments and conclusion

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).

In the present case, the signs are aurally and visually similar to a high degree, whereas the signs are conceptually dissimilar. The services are partly identical and partly dissimilar.

The earlier mark has an average degree of distinctive character. The relevant public will display a degree of attention varying from average to high.

It is undisputable that the signs are visually and aurally similar. However, with regard to the conceptual similarity of the signs at issue, it should be noted that, according to case-law, conceptual differences between the marks at issue may be such as to counteract to a large extent the visual and phonetic similarities existing between those marks. Such a counteraction requires, however, at least one of the marks at issue to have, from the point of view of the relevant public, a clear and specific meaning, so that the public is capable of grasping it immediately, and the other mark to have no such meaning or an entirely different meaning (13/06/2012, T‑519/10, SG Seikoh Giken, EU:T:2012:291, § 33; 13/06/2012, T‑342/10, Mesilette, EU:T:2012:290, § 32).

In the present case, the Opposition Division considers that both marks convey a clear meaning that the relevant public will immediately grasp and each mark conveys an entirely different meaning. Both of these concepts are, moreover, distinctive in relation to the relevant services.

Taking into account the conceptual dissimilarity between the conflicting signs, there is no likelihood of confusion, even for the contested services which are identical to the opponent’s and even taking into account an average degree of attentiveness of the relevant consumer (for some of the services). This reasoning applies a fortiori for consumers displaying a higher degree of attention.

Considering all the above, there is no likelihood of confusion on the part of the public between the contested sign and the earlier Spanish mark No 2 991 443. Therefore, the opposition must be rejected insofar as it concerns the remaining contested services in Class 39.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Michaela SIMANDLOVA

Birgit FILTENBORG

Julie, Marie-Charlotte HAMEL

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.