OPPOSITION No B 2 514 027
Loewe Technologies GmbH, Industriestr. 11, 96317, Kronach, Germany (opponent)
a g a i n s t
Loewe S.A., Calle Goya 4, 28001, Madrid, Spain (applicant), represented by Gaëlle Mouton, Société Louis Vuitton Services, Département Propriété Intellectuelle, 2, Rue du Pont Neuf, 75001, Paris, France (employee representative).
Class 9: Bags and traveling cases for photographic and cinematographic apparatus; Cell phones; Cases and covers for mobile telephones, laptop computers, PDAs, tablets, photographic and cinematographic apparatus; USB flash drives; Headphones.
Union trade mark application No
Class 9: Spectacles.
3. Each party bears its own costs.
As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.
opponent filed an opposition against some of the goods of European
Union trade mark application No
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.
The goods on which the opposition is based are the following:
Class 9: Electrotechnical and electronic apparatus and communications equipment (included in class 9), radio and television receivers, multimedia terminals, hi-fi equipment, apparatus for recording and reproducing picture and/or sound, CD-Players, audio amplifiers, active loudspeakers, information transmission equipment and data processing equipment and data processing equipment, computers such as personal and home computers, view data systems, desk telephones, display telephones, radio transmitting or receiving sets, remote control units and radio control units, monitors and data display units, computer programs recorded on data carriers, fax machines, magnetic disks and magnetic disk storage units, optoelectronic disk recording and reproducing systems, printers and telecommunication terminals, telephone answering sets, telephone extensions consisting of telephones (as main and extension stations), computers serving as central office and of electric connecting parts.
The contested goods are the following:
Class 9: Bags and traveling cases for photographic and cinematographic apparatus; Cell phones; Cases and covers for mobile telephones, laptop computers, PDAs, tablets, photographic and cinematographic apparatus; USB flash drives; Headphones; Spectacles.
An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods.
The term ‘such as’, used in the opponent’s list of goods, indicates that the specific goods 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.
The contested cell phones overlap with the opponent’s display telephones. Therefore, they are identical.
The contested bags and traveling cases for photographic and cinematographic apparatus; cases and covers for photographic and cinematographic apparatus are accessories and therefore similar to the opponent’s apparatus for recording and reproducing picture and/or sound. They are complementary and can have the same producer, relevant public and distribution channels.
The contested cases and covers for mobile telephones are similar to the opponent’s display telephones, which include mobile telephones. They are complementary and can have the same producer, relevant public and distribution channels.
A PDA is a handheld PC (personal digital assistant), a variable mobile device. The contested cases and covers for laptop computers, PDAs, tablets are similar to the opponent’s computers such as personal and home computers, which can also be in the form of tablet computers, PDA’s or laptops. The goods are complementary and can have the same producers, relevant public and distribution channels.
The contested USB flash drives are data storage devices and they are complementary to the opponent’s computers such as personal and home computers. These goods can have the same producer, distribution channels and end users. Therefore, they are considered similar to a high degree.
The contested headphones are used in combination with computers. They share the same distribution channels and are usually manufactured by the same undertakings. They are also directed at the same public. Therefore, the contested headphones are similar to the opponent’s computers such as personal and home computers.
The opponent argues that its goods spectacles include 3D-spectacles for 3D-sets and therefore are similar to the opponent’s goods. However, the Opposition Division does not agree with this view. The goods in dispute are not similar since they differ in nature, purpose, method of use, producers, distribution channels and points of sale. Moreover, they are neither complementary nor in competition and the relevant customers are different. Therefore, these contested goods are dissimilar to all the opponent’s goods.
Earlier trade mark
The signs are identical.
Global assessment, other arguments and conclusion
The signs are identical and some of the contested goods, namely the following, are identical to the opponent’s goods:
Class 9: Cell phones.
Therefore, the opposition must be upheld under Article 8(1)(a) EUTMR for these goods.
Furthermore, the following contested goods were found to be similar to various degrees to those covered by the earlier mark:
Class 9: Bags and traveling cases for photographic and cinematographic apparatus; Cases and covers for mobile telephones, laptop computers, PDAs, tablets, photographic and cinematographic apparatus; USB flash drives; Headphones.
Given the identity of the signs and the similarity of the goods, as set out in section a) of this decision, there is a likelihood of confusion within the meaning of Article 8(1)(b) EUTMR and the opposition is upheld also insofar it is directed against these goods.
Therefore, the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration No 2 415 453, ‘LOEWE’. It follows that the contested trade mark must be rejected for all the goods found to be identical or similar to those of the earlier trade mark.
The rest of the contested goods, namely spectacles, are dissimilar to the opponent’s goods. As the similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this article and directed at these goods cannot be successful.
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, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.
The Opposition Division
Loreto URRACA LUQUE
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.