OPPOSITION No B 2 524 745

NT Incoming, S.L., ctra nacional II, km 672.6 bajo, Santa Susana, 08398 Barcelona, Spain (opponent), represented by Dimitri Koltomov Sierra, La Selva 2, ol. Ind Mas Blau (Ed. Geminis), 08820 El Prat de Llobregat, Spain (professional representative)

a g a i n s t

B.A.M. Vermeer Holding B.V., Schoorstraat 53, 5071 RC Udenhout, the Netherlands (applicant), represented by Merk-Echt B.V., Keizerstraat 7, 4811 HL Breda, the Netherlands (professional representative).

On 15/04/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 524 745 is rejected in its entirety.

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

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 13 637 021, namely against all the services in Class 39. The opposition is based on Spanish trade mark registration No 2 977 451. 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. The services

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

Class 39: Passenger transport services; Car rental; Tours Arranging; Travel; Information services relating to travel on prices, timetables, touristic guides and transportation; Travel agency services; Booking of seats for transportation; Escorting of travelers services.

The contested services are the following:

Class 39: Transport; Packaging and storage of goods; Travel arrangement, Including bus journeys and international bus journeys; Transport of people, luggage and goods, including bus transport; Booking of seats for travel; Booking of seats (travel), Including bus journeys and international bus journeys; Escorting of travellers; Arranging, booking and reservation of travel, Including bus journeys and international bus journeys; hiring of vehicles; Information and consultancy relating to the aforesaid services; The aforesaid services also provided via electronic networks, such as the Internet.

Some of the contested services are identical to services on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the services listed above. The examination of the opposition will proceed as if all the contested services were identical to those of the earlier mark.

2. 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 services found to be identical are directed at the public at large. The degree of attention is considered average.

3. The signs

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 their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The earlier mark is a figurative mark. It is composed of the upper case letters ‘NT’ in white on a red pentagon pointing to the right; the pentagon resembles a tag, having a hole near the tip with a ribbon-like line passing through it. This is followed by the verbal element ‘bookings’ in red bold letters and underlined in black.

The contested sign is also a figurative mark, composed of a figurative element that is followed by the verbal element ‘BUSBOOKING’ in green upper case letters. The figurative element depicts the front view of a stylised and personified vehicle in dark green, with a partial view of one or two similar vehicles in light green behind it.

The earlier mark has no elements that could be considered clearly more distinctive than other elements, in particular because the relevant public, namely the Spanish-speaking public, will most probably not understand the English word ‘bookings’.

The element ‘BUS’ of the contested sign will be associated with ‘a large motor vehicle designed to carry passengers between stopping places along a regular route’. This is true for at least part of the relevant public in Spain because the word exists identically in Spanish. The public does not normally dissect the verbal elements of a mark; rather, it considers them as a whole. However, it cannot be excluded that at least part of the public will see ‘BUS’ in ‘BUSBOOKING’ and grasp its meaning. Bearing in mind that the relevant services are transport and travel arrangement or booking services, this element is weak for these services, namely for transport; travel arrangement, including bus journeys and international bus journeys; transport of people, luggage and goods, including bus transport; booking of seats for travel; booking of seats (travel), including bus journeys and international bus journeys; escorting of travellers; arranging, booking and reservation of travel, including bus journeys and international bus journeys; hiring of vehicles; information and consultancy relating to the aforesaid services; the aforesaid services also provided via electronic networks, such as the internet. However, it must be pointed out that the figurative element of a stylised and personified vehicle, with a partial view of one or two similar vehicles behind it, is rather fanciful and, thus, distinctive.

Neither of the conflicting marks has any elements that could be considered more dominant (visually eye-catching) than other elements.

Visually, the signs coincide in the string of letters ‘BOOKING’/’booking’. However, overall, they create different visual impressions, since they differ in the colour and typeface of that element and in the fact that in the contested sign it is part of a larger word and in the earlier mark it is a separate element. Moreover, in the earlier mark, the aforementioned coinciding element has an additional letter ‘S’ at the end, and the verbal element ‘bookings’ is also preceded by the upper case letters ‘NT’ in white on a red tag with a hole near the tip and a ribbon-like line passing through it. The contested sign includes the additional letters ‘BUS’, preceding the coinciding element ‘BOOKING’, as well as a figurative element, namely a stylised and personified vehicle in dark green, with a partial view of one or two similar vehicles in light green behind it.

Therefore, the first parts of the conflicting marks are dissimilar. Consumers generally tend to focus on the first element of a sign when being confronted with a trade mark. This is justified by the fact that the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Therefore, visually, the signs are similar to a low degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛BOOKING‛, present identically in both signs. The pronunciation differs in the sound of the letters ‛NT *******S’ of the earlier sign, which have no counterparts in the contested mark, and in the sound of the letters ‛BUS*******‛ of the contested mark, which have no counterparts in the earlier sign. Moreover, the aural differences are quite striking because the earlier sign is composed of two single letters, ‛NT’, which are pronounced /ene/ and /te/, and ‛bookings’; that is, the mark is pronounced in four syllables. The contested mark is composed of one verbal element only, ‛BUSBOOKING‛, pronounced in three syllables.

Therefore, aurally, the signs are similar to a low degree.

Conceptually, although the signs as a whole do not have any meaning for the public in the relevant territory, the element ‘BUS’, included in the contested sign, will be associated with ‘a large motor vehicle designed to carry passengers between stopping places along a regular route’ and the figurative element will be recognised as a vehicle, with a partial view of one or two similar vehicles behind it. The earlier sign’s figurative element will be associated with a tag, that is ‘a label attached to someone or something for the purpose of identification or to give other information’. Since the signs will be associated with different meanings, the signs are not conceptually similar.

As the signs have been found similar in at least one aspect of the comparison, 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 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

Although the signs coincide aurally in the element ‘BOOKING’/‘booking’, a likelihood of confusion does not exist since this element is not an independent element in the contested trade mark and because there are additional distinctive elements. Moreover, the additional and different elements are clearly perceptible and sufficient to exclude any likelihood of confusion between the marks, bearing in mind also that the coinciding elements are not the dominant elements of the signs, contrary to the opponent’s allegations.

As stated in section c), the first parts of the conflicting marks are dissimilar. Consumers generally tend to focus on the first element of a sign when being confronted with a trade mark because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. The first element of the contested sign is a distinctive figurative element: a stylised and personified vehicle in dark green, with a partial view of one or two similar vehicles in light green behind it. The first element of the earlier right is also a figurative element, but here it is a red tag containing the first verbal element, the letters ‘NT’. The verbal element of the contested sign is ‘BUSBOOKING’, the initial part of which is ‘BUS’, which is weak for the relevant services. However, even though this element is weak for at least part of the relevant public, it helps to distinguish the marks because it confers meaning on the contested sign, thus making the contested mark more memorable and clearly distinguishable from the earlier right, which conveys a completely different concept, namely in the figurative element depicting a tag.

The marks convey different overall impressions not only due to the different figurative elements (a red tag versus a stylised and personified vehicle in dark green, with a partial view of one or two similar vehicles in light green behind it), colours and stylisation, but also because the contested sign has only one verbal element and the earlier mark has two. This leads to only a low degree of aural and visual similarity, while the signs are conceptually dissimilar.

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

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

Robert MULAC

Swetlana BRAUN

Adriana VAN ROODEN

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 shall be filed in writing at the Office within two months of the date of notification of this decision. It shall 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 shall 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.