OPPOSITION No B 2 592 494

Groupe Canal+, SA, 1, place du Spectacle, 92130 Issy Les Moulineaux, France (opponent), represented by Brandstorming, 11, rue Lincoln, 75008 Paris, France (professional representative)

a g a i n s t

Sky International AG, Stockerhof, Dreikönigstrasse 31a, 8002 Zurich, Switzerland (applicant), represented by CMS Cameron McKenna Nabarro Olswang, Cannon Place, 78 Cannon St., London EC4N 6AF, United Kingdom (professional representative).

On 22/06/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 592 494 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 13 692 314. The opposition is based on international trade mark registration No 1 025 864 designating the EU and French trade mark registration No 3 636 873. The opponent invoked Article 8(1)(b) and 8(5) EUTMR.

PROOF OF USE request with regard to IR No 1 025 864

In accordance with Article 42(2) and (3) EUTMR (in the version in force at the time of filing of the opposition), if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of publication of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of the trade marks on which the opposition is based namely international trade mark registration No 1 025 864 and French mark registration No 3 636 873 and the Office subsequently asked the opponent to provide such evidence. However, earlier international trade mark registration No 1 025 864 was under no such obligation of use.

With regard to International registrations article 160 EUTMR provides that for the purposes of applying Article 42(2) EUTMR, the date of publication pursuant to Article 152(2) EUTMR will take the place of the date of registration for the purpose of establishing the date as from which the mark which is the subject of an international registration designating the EU must be put into genuine use in the Union.

The date of publication pursuant to Article 152(2) EUTMR for the earlier trade mark at issue is 02/12/2010 and the contested trade mark was published on 13/07/2015. Therefore, there is less than five years between the registration date of the International registration and the publication of the contested mark meaning that the request for proof of use is inadmissible as far as the earlier international trade mark is concerned.

Therefore, unlike the earlier French mark, there is no need to examine the proof of use in relation to the International registration and, consequently, for reasons of economy of proceedings the Opposition Division will therefore proceed with the examination of the opposition on the basis of this earlier right.

REPUTATION – ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds of refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

• The signs must be either identical or similar.

• The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

• Risk of injury: the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T‑345/08, & T‑357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant claims to have due cause for using the contested mark. The applicant’s claim will need to be examined only if the three abovementioned conditions are met (22/03/2007, T‑215/03, Vips, EU:T:2007:93, § 60). Therefore, the Opposition Division will only deal with this issue, if still necessary, at the end of the decision.

1. Reputation of the earlier trade mark

According to the opponent, the earlier International trade mark registration has a reputation in France.

Reputation implies a knowledge threshold which is reached only when the earlier mark is known by a significant part of the relevant public for the goods or services it covers. The relevant public is, depending on the goods or services marketed, either the public at large or a more specialised public.

In the present case the contested trade mark was filed on 27/01/2015. Therefore, the opponent was required to prove that the trade mark on which the opposition is based had acquired a reputation in France prior to that date. The evidence must also show that the reputation was acquired for the goods and services for which the opponent has claimed reputation, namely:

Class 9: Photographic, cinematographic, apparatus and instruments; apparatus and instruments for recording, transmitting, reproducing, storing, encrypting, decrypting, transforming and processing sound or images; audiovisual, appliances and instruments; videos; CD-ROMs, recording discs, digital video discs (DVDs), videodiscs and sound discs, digital discs, videotapes; magnetic recording media.

Class 38: Telecommunication services; information on telecommunications; television broadcasting; television broadcasts, radio broadcasts; programme broadcasting by satellite, cable, via computer networks (especially via the Internet), via radio networks, via wireless networks and by radio relay channels; broadcasting audio, audiovisual, cinematographic and multimedia programmes (texts and/or images (still or moving) and/or sounds musical or not, ringtones) for interactive or other use; rental of access devices (apparatus) to interactive audiovisual programmes; online downloading services for films and other audio and audiovisual programmes; services transmitting television programmes and selections of channels; services for transmitting and receiving video images via the Internet by means of a computer or a mobile telephone; Rental of access time to telecommunication networks.

Class 41: Entertainment; radio and television entertainment on any media namely television set, computer, personal stereo, portable video player, PDA, mobile telephone, computer networks, the Internet; production of shows, films, television films, televised broadcasts, reports, debates, video recordings, sound recordings; rental of videograms, films, sound recordings, video tapes; rental of motion pictures; rental of cinematographic projection apparatus, set-top boxes, encoding devices, radio and television sets, audio and video apparatus, cameras, personal stereos, portable video players; production of shows, films, audiovisual, radio and multimedia programmes; editing of audiovisual, radio and multimedia programmes, texts and/or images, fixed or animated, and/or sounds musical or not, and/or ringtones, for interactive or other use; Rental of set-top boxes and all kinds of audiovisual apparatus and instruments.

In order to determine the mark’s level of reputation, all the relevant facts of the case must be taken into consideration, including, in particular, the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it.

On 05/05/2016 and 09/05/2016 the opponent submitted evidence to support this claim. As the opponent requested to keep certain commercial data contained in the evidence confidential vis-à-vis third parties, the Opposition Division will describe the evidence only in the most general terms without divulging any such data. The evidence consists of the following documents, most if which is partially translated insofar it is in French and not in the language of proceedings:

Le Cube decoder

• Press articles dated November 2008 from Satellite Today, Business Wire, M2 Presswire and Inside Satellite TV 2008 announcing that the company Pace delivers IP set-top box, named ‘+Le Cube’ to the opponent in France.

• Several articles about Canal+ and Pace winning the trophy of the IPTV World Series in the category Best Hybrid Broadcast-IP Video delivery Solution.

• Some films on youtube from the period 2013-2015 about the launch of ‘le Cube’ and other promotional material for this decoder.

• Press articles from published in various newspaper and websites such as Les Echos, El Figaro, Economie, 20minutes.fr, teleloisirs.fr, lexpress.fr, universfreebox.fr, telesatellite.com and maxiscience.com mostly from June 2015 announcing the launch of the following new decoder

• Two certificates dated 24/09/2015 of the opponent’s director of products and services marketing, one mentioning the total number of decoders ‘+ Le Cube’ made to date and one certifying the total amount of subscribers in April 2015.

TV programming

• Print screens from various websites such as programm-tv.net, tv loisirs, Playtv.fr, franceinfo.fr, enpleinlucarne.net, saveursdunet.com showing TV program listings mentioning inter alia the opponent’s TV channels in 2013 and 2014 such as the following overview on http://playtv.fr:

• 

• Print screens from the opponent’s websites like cine+, foot+, rugby+, maison+, cuisine+, golf+ and infosport+ showing TV programming lists from the period 2011-2015.

• Screenshots of the opponent’s Facebook and Twitter and Google+ home pages showing the sign dated 08/04/2016.

Information in the press about the opponent’s TV channels (period 2010-2016)

• Wikipedia articles about the opponent’s different TV channels such as foot+, rugby+, cuisine+, sport+, cine+, maison+, golf+, infosport+, and cube canal+ and extracts from its Facebook pages cuisine+, cine+, golf+ and infosport+.

• Article published on www.lareclame.fr from May 2014 mentioning about the opponent’s earlier mark that: ‘The chain reinvents the great success of movie posters with his iconic sign ‘+’’.

• Various publications mentioning that myCANAL provides access to all the channels and programs of CANAL+ in a single application which transforms PCs, mobile phones or tablets into a TV

Promotion/advertisement material 2011-2015

• Booklet and flyers about the opponent’s TV channels:

• Advertisements on Facebook with the following theme: .

• TV commercials and trailers for + cine and + series.

• Extracts from the ‘+’ magazine

Pop up stores

• Articles on various websites about the launch of pop up stores dated between November 2014 and the beginning of 2015.

• Photos of the opponent’s (pop up) stores:

Market surveys

• Market survey dated December 2006 on the notoriety of the signs ‘PLUS/+’ carried out by the French Institute TNS Sofres in France and a summary report of the same market survey dated 23/01/2007 accompanied by their partial translation.

• Extracts of a market survey on the notoriety of the sign ‘+’ carried out by the Opened Mind Company in France on 11/06/2014.

• Market surveys about the recognition of the marks ‘camion+’ and ‘livres+’.

Other indirect evidence

• Decision of the French Trademark Office.

• Photos of gift articles such as memory sticks, calculators and alarm clocks bearing the sign ‘+’.

• Examples of trademarks owned by the opponent containing the ‘+’‑sign at the end, such as ‘CANAL+’, ‘CINE+’, ‘LES+’, ‘FOOT+’, etc.

The Opposition Division finds that the evidence submitted by the opponent does not demonstrate that the earlier trade mark acquired a reputation or enhanced distinctiveness through use.

The only information that gives some direct information about the recognition of the ‘+’ sign are the market surveys. However, they cannot serve to prove the repute or enhanced distinctiveness of the earlier mark. The survey conducted by TNS Sofres does not concern the mark as registered , but asks the interviewees what they would associate the sign ‘+’ or the term ‘PLUS’ with, while the surveys about the recognition of the marks ‘camion+’ and ‘livres+’ clearly have nothing to do with the earlier mark. In the case of the market survey carried out by Opened Mind the questions are not translated so that it is unknown what the exact questions were, making it impossible for the Opposition Division to rely on the results of these surveys.

What is more, even if the surveys had been fully translated, the interviewees were asked leading questions. In the survey conducted by TNS of 2006 they were asked to associate the sign ‘+’ or term ‘PLUS’ with particular trademark(s) in the field of media. However it is not obvious that people would associate ‘+’ or ‘PLUS’ with a trademark, since it indicates addition or a positive value, and, thus, transfers the message of ‘something more’. It is clear from the other questions where the interviewees are not instructed to think of a trademark that the awareness is much lower. In the survey conducted by Opened Mind of 2014 the interviewees had to choose from a list of predetermined answers. This is also likely to influence the results, as the possible answers already indicate which companies use the ‘+’‑symbol. Still the percentage mentioning the opponent is very low.

The rest of the evidence, although very exhaustive, does not allow the Opposition Division to effectively gauge the degree of exposure of the mark and any consequent recognition among relevant purchasers either. The evidence mostly consists of advertisement materials and press articles about the opponent’s TV channels, which show use of a ‘+’ in combination with other terms, such as canal+, cine+, foot+, rugby+, maison+, cuisine+, golf+, infosport+ or in different configurations, dimensions and colours as in the Facebook advertisement and movie posters. Contrary to the opponent’s contention, this cannot be considered use of the earlier mark as registered since it alters its distinctive character, either because the use of the ‘+’s in combination with descriptive word elements will be perceived as indicating that these TV channels offer more than just films, football, golf etc. and thus are purely informative, or because the design of the earlier mark has changed considerably as in the cinema posters and the Facebook advertisement. In this respect it must be noted that the earlier mark’s distinctive character resides in its particular graphic representation; the ‘+’-sign as such is purely informative.

As regards the few items of evidence, that do show the mark as registered, namely those about the ‘le cube’ decoder, the opponent’s TV magazine, some gift articles, the TV app and the pop up shops, the extent of use is not sufficient or not clear at all. The declarations about the ‘le cube decoder’, do not specify in which country the produced boxes were distributed or in use. Moreover, the subscription figures as such are too low to prove that, therefore, the ‘+’-symbol displayed on the box is perceived as a trademark, let alone as having an enhanced distinctiveness.

For the use of the ‘+’-symbol in the +-magazine, on gift articles and the TV app there are no figures illustrating the number of copies distributed, nor percentages of the target public reached through these media. Thus, there is no conclusive information to assess the actual impact of this material. In other words, it cannot be inferred from their existence alone that they were spread among a substantial part of the relevant public. The opponent’s argument that the great success of the TV application is evidenced by the fact that this application which was elected ‘Application of the day’ by the journal in which the article was published cannot succeed since this article is dated after the filing date of the contested mark, namely 25/04/2016. The invoices submitted to prove that hundreds of thousands of leaflets were ordered to be printed, are not very conclusive either, since it is not clear to which advertising material they relate nor are the orders very numerous. As regards the use of the earlier mark in the opponent’s shops, it must be pointed out, that the relevant evidence on file is dated between November 2014 and beginning of 2015, thus, not much time before the filing of the contested mark. Therefore, it seems unlikely that in such a short period this use has led to the association of this sign with the opponent. All this evidence merely shows that the mark has been genuinely used.

Finally the decisions of the French Patent and Trademarks Office are of very little probative value, since it is not clear from the minimal translation provided on which trade marks these opposition decisions were based and, therefore, if these cases are of any relevance for the present case.

Under these circumstances, the Opposition Division concludes that the opponent failed to prove that its international trade mark had a reputation or acquired an enhanced distinctiveness at the date of fling of the contested trade mark application.

As seen above, it is a requirement for the opposition to be successful under Article 8(5) EUTMR that the earlier trade mark has a reputation. Since it has not been established that the earlier trade mark has a reputation, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, and the opposition must be rejected insofar as it is based on this ground and this mark.

The opponent has also based its opposition on earlier French trade mark registration No 3 636 873 for the same figurative mark . Since this mark is identical to the one which has been assessed above and is claimed to be reputed for the same but less goods and services, no reputation can be established for this earlier mark either. Since this means that the opposition is not well founded under Article 8(5) EUTMR, it is unnecessary to examine the evidence of use filed by the opponent in relation to this mark.

The Opposition Division will now continue its examination on the basis of the same earlier international trade mark in relation to the ground of 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. 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.

According to the opponent the earlier trade mark has a reputation in France in connection with some of the goods and services for which it is registered in Classes 9, 38 and 41. The evidence submitted by the opponent to prove the reputation and highly distinctive character of the earlier trade mark has already been examined above under the grounds of Article 8(5) EUTMR, where it was concluded that no such reputation or enhanced distinctiveness exists.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. Considering that the ‘+’-symbol is a commonly used symbol denoting addition or a positive value, it will be perceived as a laudatory element indicating a superior value or quantity. Therefore, the distinctiveness of the earlier mark is low for all the goods and services in question and resides in its particular graphic representation.

2. The goods and services

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

Class 9: Scientific (other than medical), nautical, surveying, photographic, cinematographic, optical and electro-optical, weighing, measuring, signalling, checking (supervision) and life-saving apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; set-top boxes; electronic information processing apparatus, electric apparatus for measurement and electronic control (inspection); teaching apparatus and instruments; apparatus and instruments for recording, transmitting, reproducing, storing, encrypting, decrypting, transforming and processing sound or images; communication and telecommunication apparatus; audiovisual, telecommunication, telematic, television and remote-controlled appliances and instruments; tape recorders; video recorders, cameras; telephones, mobile telephones; personal organisers (PDAs); electronic agendas; radios, personal stereos; projectors (projection apparatus); antennae, satellite dishes; loud-speaker cabinets, amplifiers; computers, computer screens, computer keyboards, computer peripheral devices, modems, set-top boxes, encoders; devices for providing access and for controlling access to data processing apparatus; authentication apparatus designed for telecommunication networks; apparatus for scrambling signals and for descrambling signals as well as for retransmission; digital terminals; videos; CD-ROMs, recording discs, digital video discs (DVDs), videodiscs and sound discs, digital discs, videotapes; players for CD-ROMs, digital video discs, digital discs, magnetic discs, video and audio discs, digital discs, recording discs; video game cartridges; video game software; video games adapted for use with a television screen; magnetic recording media; magnetic cards, integrated circuit cards (smart cards), electronic cards; integrated circuits and micro circuits; card readers; electronic components; monitors used for displaying data received from a global computer network; automatic vending machines and mechanisms for coin-operated apparatus; calculating machines and data processing apparatus; satellites for telecommunication and scientific purposes; spectacles, spectacle cases, optical goods; integrated circuit cards (smart cards), simultaneous programming and television channel selection devices; electronic guides for tv and radio programmes; apparatus and instruments for television programme selection and programming; interactive television apparatus and instruments; television screens; software (recorded programs); fibre-optic cables and optical cables; electric cells and batteries.

Class 14: Jewellery; jewellery; horological and chronometric instruments; precious metals and their alloys; precious stones; cuff links of precious metal; tie pins; key rings; precious metal boxes; sundials; watches and watch bands, diving watches, watch cases.

Class 16: Paper and cardboard (unworked, semi-worked); stationery goods; printed matter; engraved works of art; lithographic works of art; tickets; photographs; catalogues, newspapers, periodicals, magazines, reviews, books, bookmarkers manuals, scrapbooks, pamphlets; artists' materials; paintbrushes; typewriters and office requisites (except furniture); instructional or teaching material (except apparatus); bags and sachets (envelopes, pouches) of paper and plastics, for packaging; adhesive tapes for stationery or household purposes; subscription cards (non-magnetic); credit cards (non-magnetic); printing type; printing blocks; pens, writing instruments; visiting or business cards, postcards, writing or drawing books, scratch pads; note books; cheque books; cheque-book holders; penholders, nibs, drawing pens; posters; calendars; letter trays; television and radio programme guides; paper table linen and napkins; paper tablecloths; toilet paper; paper handkerchiefs; paper face towels; paper flags; stickers (stationery items); postage stamps; cardboard or paper boxes; envelopes (stationery), announcement cards (stationery); school supplies; letter paper.

Class 18: Leather and imitations of leather; trunks, bags and valises, sports bags, rucksacks, school bags; umbrellas; sunshades, parasols; walking sticks; whips, harness and saddlery; school bags; card cases (notecases), wallets, change purses; key cases.

Class 25: Clothing; sports clothing; tee-shirts; footwear; headgear; leather or imitation leather clothing; belts (clothing); furs (clothing); gloves (clothing); scarves, sashes for wear; neckties; hosiery; socks; slippers; sports, beach and ski footwear; underwear; bathing suits; tights; suits.

Class 28: Games; board games; toys; decorations for Christmas trees (except lighting articles); fishing tackle; balls for games and play balloons; billiard tables, cues or balls; card or board games; ice or roller skates; scooters; sailboards, skateboards or surfboards; rackets; skis; protective paddings (parts of sports suits); video game machines, arcade video games.

Class 34: Smokers' articles; cases, caskets and boxes for cigars, tobacco pipes, cigarettes and matches; smokers' lighters; ashtrays for smokers (not of precious metal).

Class 35: Business consulting; professional assistance and advice in business organization and management for industrial and commercial enterprises; business consulting and information; commercial advice intended for consumers (namely consumer information) related to choice of computer and telecommunication equipment; compiling and organizing data in files; advertising; rental of advertising space; dissemination of advertisements; organization of promotional and advertising operations with a view to developing customer loyalty; drafting of advertising mailing; dissemination of advertising material (leaflets, prospectuses, printed matter, samples); direct mail advertising; arranging of audiovisual programme, audio and radio programme and newspaper subscriptions for others; services of subscription to videograms, phonographic recordings, to all audio and audiovisual media; arranging subscriptions to all kinds of information media, texts, sound and/or images and especially in the form of publications electronic or not, digital, multimedia products; subscription services to a television channel; services of subscription to a telephone or computer (internet) service; publication of advertising texts; radio and television advertising; interactive advertising; business management; business administration; office functions; online advertising on a computer network; business information or inquiries; business research; commercial or industrial management assistance; employment agencies; business or industrial appraisals; accounting; document reproduction; computer file management; database management services; data input and processing services namely data input, compilation and systemization, computer file rental; organization of exhibitions and public events for commercial or advertising purposes; sales promotion for others; marketing research; auctioneering; teleshopping with offer of sales; administrative management of exhibition sites for commercial or advertising purposes; public relations; rental of advertising time on any communication media; retail and wholesale sales of clothing articles, leather goods, jewellery, pens, stationery, games, toys, sports articles; retail and wholesale sale of audiovisual, computer and telecommunications products namely videotapes, televisions, video recorders, personal stereos, tape recorders, radio, high-fidelity (hi-fi) equipment, set-top boxes, mobile telephones, computers, magnetic tapes, record changers (computing), printed circuits, integrated circuits, computer keyboards, compact discs (audio-video), compact optical discs, couplers (data processing equipment), diskettes, magnetic data media, video screens, scanners, printers for use with computers, interfaces for computers, readers (data processing equipment), software (recorded programs), microprocessors, modems, monitors, monitors (computer programs), computers, computer memories, computer peripheral devices, recorded computer programs, processors (central processing units), recorded computer operating programs, chips (integrated circuits), retail sale of aerials; press review services.

Class 38: Telecommunication services; communications via computer terminals or via fibre-optic networks; information on telecommunications; press and information agencies (news); communications via radio, telegraph, telephone or visiophone, by personal stereo, by personal video player, by videophone, by interactive videography via videophone; television broadcasting; information transmission services via data communication networks; sending of messages, telegrams, images, videos, despatches; transmission of data by teletypewriter; teletransmission; television broadcasts, radio broadcasts; programme broadcasting by satellite, cable, via computer networks (especially via the Internet), via radio networks, via wireless networks and by radio relay channels; broadcasting audio, audiovisual, cinematographic and multimedia programmes (texts and/or images (still or moving) and/or sounds musical or not, ringtones) for interactive or other use; electronic display services (telecommunications); rental of telecommunication equipment; rental of remote computing and data communication apparatus namely telephones, facsimile machines, message transmission apparatus, modems, personal stereos; rental of aerials and parabolic aerials; rental of access devices (apparatus) to interactive audiovisual programmes; communications (transmission) over an open global computer network (the Internet) or a closed network (intranets); online downloading services for films and other audio and audiovisual programmes; services transmitting television programmes and selections of channels; provision of access to a computer network; providing connections to telecommunication services, to Internet services and to databases; telecommunications gateway services; services of linking by telecommunications to a global computer network; consulting in telecommunications; services for transmitting and receiving video images via the Internet by means of a computer or a mobile telephone; telephone services; cellular telephone services; cellular telephone communication; radio paging; voicemail, call forwarding, automatic answering machines and electronic mail, electronic message transmission services; video-conferencing services; video messaging services; video-telephone services; services to provide access to the Internet (Internet service providers); electronic correspondence exchange services, electronic mail services, instant electronic messaging services, non-instant electronic message services; information transmission services by means of Internet, extranet and intranet networks; information transmission services by means of secure messaging systems; providing access to electronic conferencing and chat rooms; providing access to Web sites on the Internet containing digital music or any audiovisual work; providing access to telecommunications infrastructures; providing access to search engines on the Internet; rental of access time to telecommunication networks; services for downloading video games and digitized data.

Class 41: Education; providing of training; entertainment; radio and television entertainment on any media namely television set, computer, personal stereo, portable video player, PDA, mobile telephone, computer networks, the Internet; providing recreation facilities; sporting and cultural activities; animal training; production of shows, films, television films, televised broadcasts, reports, debates, video recordings, sound recordings; rental of videograms, films, sound recordings, video tapes; rental of motion pictures; rental of cinematographic projection apparatus, set-top boxes, encoding devices, radio and television sets, audio and video apparatus, cameras, personal stereos, portable video players, theatre scenery and accessories therefor; production of shows, films, audiovisual, radio and multimedia programmes; film studios; organization of competitions, shows, lotteries, and games for education or entertainment; editing of audiovisual, radio and multimedia programmes, texts and/or images, fixed or animated, and/or sounds musical or not, and/or ringtones, for interactive or other use; organization of exhibitions, conferences, seminars for cultural or educational purposes; booking of seats for shows; services provided by news reporters; photographic reporting; videotaping; online game services (from a communication network), gambling services; casino services; editing and publishing of texts (other than advertising texts), multimedia, audio and video media (interactive discs, compact discs, storage discs); electronic publishing of books and periodicals online; publication and loan of books and texts (other than advertising texts); providing electronic publications online; providing cinema facilities; electronic desktop publishing; rental of set-top boxes and all kinds of audiovisual apparatus and instruments.

Class 42: Research and development of new products; technical research; expert reports of engineers, professional consulting in computers, telephony, video programmes, the Internet; services for operating search engines on the Internet; software design, development, updating and rental; consulting concerning computers and concerning computer rental; photographic services, namely taking photographs, photographic reporting; design and development of design of coding, decoding, access control systems for television and radio programmes, especially mobile users and all information transmission systems; design (development) of interactive programs and apparatus; services of technical establishment of standards (standardisation), services of standardisation, namely development (design) of technical standards for manufactured products and telecommunications services; weather forecasting services; research and development of electronic, computer and audiovisual, scrambling and access control systems in the field of television, computing, telecommunications and the audiovisual sector; electronic message authentication (research of origin) services; information on computing applied to telecommunications; computer formatting of texts and/or images, fixed for interactive or other use.

After a limitation of the scope of the opposition by the opponent on 09/05/2016 the contested goods and services are the following:

Class 9: […], cinematographic, […] apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; compact discs, DVDs and other digital recording media; […], data processing equipment; computers; computer software; amplifiers; animated cartoons; apparatus for editing cinematographic film; audio- and video-receivers; audiovisual teaching apparatus; cabinets for loudspeakers; camcorders; cameras [photography]; cassette players; cinematographic cameras; cinematographic film, exposed; coin-operated mechanisms for television sets; compact disc players; compact discs [audio-video]; compact discs [read-only memory]; computer game software; computer keyboards; computer memory devices; computer operating programs, recorded; computer peripheral devices; computer programmes [programs], recorded; computer programs [downloadable software]; computer software, recorded; computers; data processing apparatus; disk drives for computers; disks, magnetic; downloadable image files; downloadable music files; downloadable ring tones for mobile phones; DVD players; electric apparatus for commutation; electronic agendas; electronic publications, downloadable; film cutting apparatus; films, exposed; floppy disks; headphones; intercommunication apparatus; interfaces for computers; juke boxes for computers; juke boxes, musical; laptop computers; loudspeakers; magnetic data media; magnetic encoders; magnetic tape units for computers; magnetic tapes; megaphones; microphones; modems; monitors [computer hardware]; monitors [computer programs]; mouse [data processing equipment]; mouse pads; notebook computers; optical data media; optical discs; personal stereos; phonograph records; portable media players; portable telephones; printed circuits; printers for use with computers; projection apparatus; projection screens; radios; radiotelegraphy sets; radiotelephony sets; readers [data processing equipment]; record players; scanners [data processing equipment]; sound recording apparatus; sound recording carriers; sound recording strips; sound reproduction apparatus; sound transmitting apparatus; tape recorders; telegraphs [apparatus]; telephone apparatus; telephone receivers; telephone transmitters; teleprinters; teleprompters; television apparatus; terminals [electricity]; transmitters of electronic signals; transmitters [telecommunication]; transmitting sets [telecommunication]; USB flash drives; video cassettes; video game cartridges; video recorders; video screens; video telephones; videotapes; data storage apparatus and instruments, software and data storage software, and software for video-conferencing, radio, television, sound recording, sound reproducing, telecommunications […] apparatus and instruments; apparatus for recording television programmes; apparatus for reproduction or reception of sound, images or audio visual content; electrical and electronic apparatus for use in the reception of satellite, terrestrial or cable broadcasts; televisions; LCD and plasma screens; home cinema systems; amplifiers; speakers; radios; wireless audio and/or audio visual devices; portable wireless audio and/or audio visual devices; remote controls; wireless gaming controllers; wireless keypads; television receivers including a decoder; set-top boxes; digital set-top boxes; high definition set-top boxes; personal video recorder; set-top boxes for use in decoding and reception of satellite, terrestrial and cable broadcasts; apparatus for decoding encoded signals including set-top boxes for television reception; set-top box apparatus including a decoder and an interactive viewing guide; set-top box apparatus including a decoder and a recorder for recording television and audio programmes; set-top box apparatus including a decoder end a recorder programmable to transfer stored recordings to storage and also to delete the older recordings; satellite dishes; computer software to enable searching of data; encoded programs for computers and for data processing and telecommunications; telephones; mobile telephones; PDAs; telephone and radio modems; television receivers including a decoder; set-top boxes for use in decoding and reception of satellite, terrestrial cable and digital subscriber line (DSL), Internet or other electronic broadcasts; apparatus for decoding encoded signals; recorded television and radio programmes; recorded programmes for broadcasting or other transmission on television, radio, mobile telephones, PDAs and on PCs; video recordings; multimedia apparatus and instruments; portable or hand-held computers; DVD players; computers; computer hardware; firmware, computer firmware; computer hardware, apparatus and instruments all for transmitting, displaying, receiving, storing and searching electronic information; computer programs; electronic computer games; electronic interactive computer games; computer software; computer software and telecommunications apparatus to enable connection to databases and the Internet; computer software supplied from the Internet; network termination equipment; wired and/or wireless computer network routers, modems, firewalls and/or bridges; computer software and computer programs for distribution to, and for use by, viewers of a digital television channel for the viewing and purchase of goods and services; computer games software and computer quiz software; computer video games and/or quizzes adapted for use with television receivers and screens or with video monitors or with computer screens; computer programs for interactive television and for interactive games and/or quizzes; electronic apparatus adapted for use with television receivers in playing games; interactive video game devices comprised of computer hardware and software and accessories, including software for operating game controllers; portable and/or hand-held electronic devices for interactive computer and video games; portable and/or hand-held electronic devices for receiving, playing and transmitting music, sounds, images, text, signals, information and code; electronic publications; computer games; computer video games; video screens; video projectors; tapes, discs and wires, all being magnetic; cassettes and cartridges, all adapted for use with the aforesaid tapes; blank and pre-recorded audio and video cassettes, tapes and cartridges; compact discs; DVD discs; phonographic records; laser readable discs for recording sound or video; ROM cartridges, CD ROMs, cards and discs, integrated circuit cards, memory carriers, recording media, all pre-recorded with computer video games and/or quizzes; radio and television signal antennae; music, sounds, videos, images, text and information provided by a telecommunications network, by on-line delivery and by way of the Internet and/or the world-wide web or other communications network; interactive sound and/or audio recordings; music, video, sound and/or audio recordings (downloadable) provided from MP3 Internet websites; MP3 players, MP3 readers; audio and/or video file recorders and/or players; portable audio and/or video file recorders and/or players; telephone ring tones (downloadable); apparatus and instruments for the reception of radio and television broadcasts including the reception of cable, satellite and digital broadcasts; acoustic apparatus or instruments, namely acoustic discs, […]; aerials; antennae; amplifiers; communication apparatus and instruments; cinematographic film; cinematographic instruments and apparatus; data carriers; data storage apparatus, equipment and instruments; electrical telecommunications and/or communications and/or broadcast and/or transmission and/or decoding and/or image processing and/or audiovisual instruments and apparatus; electronic telecommunications and/or communications and/or broadcast and/or transmission and/or decoding and/or image processing and/or audio visual instruments and apparatus; film reproducing instruments and apparatus; hand held electrical telecommunications and/or communications and/or broadcast and/or transmission and/or decoding and/or image processing and/or audio visual instruments and apparatus; hand held electronic telecommunications and/or communications and/or broadcast and/or transmission and/or decoding and/or image processing and/or audio visual instruments and apparatus; interactive educational or entertainment games for use with television receivers and video apparatus; mobile telephones; motion pictures; telephone apparatus and equipment; parts and fittings for all the aforesaid goods; […], leather cases for holding mobile phones; e-sell through products, namely downloadable media content, including video and films, television programmes, computer games, music, images and ring tones provided by internet, telephone line, cable, wireless transmission, satellite or terrestrial broadcast service; cases, containers, protective coverings and parts and fittings therefor, all for use with MP3 players, music storage devices, media storage devices and other consumer electronic devices; radio, telephonic, television and signalling apparatus and instruments, cameras, sound and video monitoring and recording and sound and video reproducing apparatus and instruments, all for control and telemetry purposes for the home and personal security; closed-circuit television systems (CCTV); monitors; cameras; prepackaged cameras; videocassette recorders (VCRs); system controlling software; video monitoring apparatus; readers; digital audio recorders; digital video recorders; digital audio servers; digital video servers; electrical communication equipment; message programming equipment; radio paging equipment; electronic network equipment, electronic communication equipment; message programming devices; parts and fittings for all the aforesaid goods; computer software, operating system software, devices, and hardware for transmitting, receiving, synchronizing, displaying, backing-up, monitoring, controlling, sharing, coding, decoding, encrypting, accessing, remotely accessing, creating, collecting, storing, securing, removing, transferring, disseminating, locating, organizing or otherwise utilizing data, voice, multimedia, audio, visual, music, photographs, drawings, images, audiovisual, video, text, graphics or other data, including over a global communications network; computer software, operating system software, devices, and hardware for synchronizing data, files, e-mails, contacts, calendars, task lists, text messages, photos, music, audio, visual, audio visual, video, text, graphics, programs and other information between computers and hand-held or other devices, and vice versa; communications platforms for enabling instantaneous, continuous, scheduled and perpetual synchronization of data between computers and hand-held or other devices, and vice versa; multimedia cards, memory cards, flash memory cards, memory chips, data storage media devices, plugs, plug-in cards, magnetic cards, SIM cards, telephone calling cards, headphones, headsets, portable and/or hand held electronic devices for receiving, storing, playing and transmitting data, voice, multimedia, audio, visual, music, photographs, drawings, images, audiovisual, video, text, graphics or other data; provision of online dictionaries, encyclopaedias, and reference texts (downloadable); online publications, including newspapers, magazines (periodicals), comics, journals (publications), books, user manuals, instructional and teaching materials (downloadable); provision of online posters, photographs, pictures, […], online electronic dictionaries, encyclopaedias and reference texts; computer software for the purpose of monitoring online communications and chat room conversations and alerting third parties to the contents; computer software for monitoring the use of computers and the Internet by children; parts and fittings for all the aforesaid goods; radios; communicators; aerials for radios; parts for radios; carrying cases for radios; electronic radio apparatus; mobile radios; mounting fittings for radios; radio receivers and transmitters; radio transceivers; radios for vehicles; solar powered radios; parts and fittings for all of the above.

Class 28: Games […]; apparatus for games; arcade video game machines; controllers for game consoles; games; gaming machines for gambling; electronic games; hand-held devices for playing electronic, computer or video games; video games apparatus; parts and fittings for all the aforesaid goods; amusement machines; amusement apparatus and instruments; interactive educational or entertainment games; computer controlled exercise apparatus; games controllers; games consoles; amusement apparatus and instruments adapted for use with an external display screen or monitor; parts and fittings for all of the above.

Class 35: Arranging newspaper subscriptions for others; arranging subscriptions to telecommunication services for others; presentation of goods on communication media, for retail purposes; production of advertising films; radio advertising; rental of advertising time on communication media; sales promotion for others; telemarketing services; telephone answering for unavailable subscribers; television advertising; business administration and office functions including online storage of files, data, photographs, graphics, documents, videos, images, audio files, audio-visual files, visual files, computer files, computer applications and information for others; business administration and office functions including electronic data storage services for personal and business use, and services for the electronic storage and organization of files, images, music, audio, video, photos, drawings, audio-visual, text, documents and data; provision of product information and advice to prospective purchasers of home entertainment equipment, multi-media apparatus and instruments, television and radio equipment, audio visual equipment, set-top boxes, personal video recorders, video recorders, computer games software, hardware and peripheral devices; television advertising commercials; preparation and presentation of audio visual displays for advertising purposes; arranging and conducting of trade shows and exhibitions; arranging and conducting trade show exhibitions in the field of electronic, computer and video games for the computer and video game industry; advertisement and promotion of television services; marketing of radio programmes, television programmes, films, motion pictures, pre-recorded video tapes, audio and/or visual material, pre-recorded video cassettes, DVDs or pre-recorded video discs; compilation of business statistics and commercial information, all relating to television, radio, satellite broadcasting and video games; magazine and newspaper subscriptions; the bringing together, for the benefit of others of a variety of goods namely […], cinematographic, […], radio, television, sound recording, sound reproducing, telecommunications, […] apparatus and instruments, apparatus for recording television programmes, apparatus for recording, transmission, reproduction or reception of sound, images or audio visual content, electrical and electronic apparatus for use in the reception of satellite, terrestrial or cable broadcasts, televisions, LCD and plasma screens, home cinema systems, amplifiers, speakers, radios, wireless audio and/or audio visual devices, portable wireless audio and/or audio visual devices, remote controls, games controllers, wireless gaming controllers, wireless keypads, television receivers including a decoder, set-top boxes, digital set-top boxes, high definition set-top boxes, personal video recorder, set-top boxes for use in decoding and reception of satellite, terrestrial and cable broadcasts, apparatus for decoding encoded signals including set-top boxes for television reception, set-top box apparatus including a decoder and an interactive viewing guide, set-top box apparatus including a decoder and a recorder for recording television and audio programmes, set-top box apparatus including a decoder and a recorder programmable to transfer stored recordings to storage and also to delete the older recordings, satellite dishes, low noise blocks, […], encoded programs […] for data processing and telecommunications, telephones, mobile telephones, PDAs, telephone and radio modems, television receivers including a decoder, set-top boxes for use in decoding and reception of satellite, terrestrial cable and digital subscriber line (DSL), Internet or other electronic broadcasts, apparatus for decoding encoded signals, recorded television and radio programmes, recorded programmes for broadcasting or other transmission on television, radio, mobile telephones, PDAs and on PCs, video recordings, multimedia apparatus and instruments, portable or hand-held computers, DVD players, computers, computer hardware and peripheral devices, computer hardware, apparatus and instruments all for transmitting, displaying, receiving, storing and searching electronic information, computer programs, electronic computer games, electronic interactive computer games, computer software, computer software and telecommunications apparatus to enable connection to databases and the Internet, computer software supplied from the Internet, network termination equipment, wired and/or wireless computer network routers, modems, […], computer software and computer programs for distribution to, and for use by, viewers of a digital television channel for the viewing and purchase of goods and services, computer games software and computer quiz software, computer video games and/or quizzes adapted for use with television receivers and screens or with video monitors or with computer screens, computer programs for interactive television and for interactive games and/or quizzes, electronic apparatus adapted for use with television receivers in playing games, games consoles, interactive video game devices comprised of computer hardware and software and accessories, namely game consoles, game controllers and software for operating game controllers, portable and/or hand-held electronic devices for interactive computer and video games, portable and/or hand-held electronic devices for receiving, playing and transmitting music, sounds, images, text, signals, information and code, portable wireless audio devices, virtual reality systems, home entertainment systems, multi-media equipment, audio visual equipment, video and television equipment, electronic publications, computer games, computer video games, video screens, video projectors, tapes, discs and wires, all being magnetic, cassettes and cartridges, all adapted for use with the aforesaid tapes, blank and pre-recorded audio and video cassettes, tapes and cartridges, compact discs, DVD discs, phonographic records, laser readable discs for recording sound or video, ROM cartridges, CD ROMs, cards and discs, […], memory carriers, recording media, all pre-recorded with computer video games and/or quizzes, […], radio and television signal antennae, music, sounds, videos, images, text and information provided by a telecommunications network, by on-line delivery and by way of the Internet and/or the world-wide well or other communications network, interactive sound and/or audio recordings, music, video, sound and/or audio recordings (downloadable) provided from MP3 Internet websites, MP3 players, MP3 readers, audio and/or video file recorders and/or players, portable audio and/or video file recorders and/or players, personal video recorders, telephone ring tones (downloadable), […], apparatus and instruments for the reception of radio and television broadcasts including the reception of cable, satellite and digital broadcasts, […], acoustic apparatus or instruments, […], aerials, antennae, amplifiers, amusement apparatus and instruments adapted for use with an external display screen or monitor, communication apparatus and instruments, […], cinematographic film, cinematographic instruments and apparatus, data carriers, data storage, electrical telecommunications and/or communications and/or broadcast and/or transmission and/or decoding and/or image processing and/or audio visual instruments and apparatus, electronic telecommunications and/or communications and/or broadcast and/or transmission and/or decoding and/or image processing and/or audio visual instruments and apparatus, film reproducing instruments and apparatus, hand held electrical telecommunications and/or communications and/or broadcast and/or transmission and/or decoding and/or image processing and/or audio visual instruments and apparatus, hand held electronic telecommunications and/or communications and/or broadcast and/or transmission and/or decoding and/or image processing and/or audio visual instruments and apparatus, interactive educational or entertainment games for use with television receivers and video apparatus, mobile telephones, motion pictures, telephone apparatus and equipment, parts and fittings for all the aforesaid goods, […], e-sell through products, namely downloadable media content, including video and films, television programmes, computer games, music, images and ring tones provided by internet, […], wireless transmission, satellite or terrestrial broadcast service, cases, containers, protective coverings and parts and fittings therefor, all for use with MP3 players, music storage devices, media storage devices and other consumer electronic devices, […], radio, telephonic, television and signalling apparatus and instruments, cameras, sound and video monitoring md recording and sound and video reproducing apparatus and instruments, all for control and telemetry purposes for the home and personal security, closedcircuit television systems (CCTV), monitors; cameras, […], prepackaged cameras, videocassette recorders (VCRs), […], video monitoring apparatus, […], readers, […], digital audio recorders, digital video recorders, digital audio servers, digital video servers, electrical communication equipment, message programming equipment, radio paging equipment, […], electronic network equipment, electronic communication equipment, message programming devices, […], computer software, operating system software, devices, and hardware for transmitting, receiving, synchronizing, displaying, backing-up, […], controlling, sharing, coding, decoding, encrypting, accessing, remotely accessing, creating, collecting, storing, securing, removing, transferring, disseminating, […], organizing or otherwise utilizing data, voice, multimedia, audio, visual, music, photographs, drawings, images, audiovisual, video, text, graphics or other data, including over a global communications network, computer software, operating system software, devices, and hardware for synchronizing data, […], photos, music, audio, visual, audio visual, video, text, graphics, programs and other information between computers and hand-held or other devices, and vies versa, communications platforms for enabling instantaneous, continuous, scheduled and perpetual synchronization of data between computers and hand-held or other devices, and vice versa, multimedia cards, memory cards, flash memory cards, memory chips, data storage media devices, […], plug-in cards, magnetic cards, SIM cards, telephone calling cards, headphones, headsets, portable and/or hand held electronic devices for receiving, storing, playing and transmitting data, voice, multimedia, audio, visual, music, photographs, drawings, images, audiovisual, video, text, graphics or other data, online dictionaries, encyclopaedias, and reference texts (downloadable), online publications, including newspapers, magazines (periodicals), comics, journals (publications), books, user manuals, […], photographs, pictures, […], online electronic dictionaries, encyclopaedias and reference texts, […], computer software for the purpose of monitoring online communications and chat room conversations and alerting third parties to the contents, computer software for monitoring the use of computers and the Internet by children, […], publications, newspapers, magazines (periodicals), comics, journals (publications) and books, publications including strategy guides, user manuals, books and magazines all in the field of computer games, science fiction, games and entertainment, […], programme guides, […], user guides or manuals, […], publications, magazines, […], toys, games and playthings, electronic games, hand-held devices for playing electronic, computer or video games, video games apparatus, […], games involving gambling, amusement machines, amusement apparatus and instruments, interactive educational or entertainment games, […], radios, communicators, aerials for radios, parts for radios, […], electronic radio apparatus, mobile radios, […], radio receivers and transmitters, radio transceivers, radios for vehicles, solar powered radios, parts and fittings for all of the above, […] enabling customers to conveniently view and purchase those goods including via an Internet website, an interactive television shopping channel, a digital television shopping channel, an Internet walled garden or by means of interactive television and/or telecommunications (including voice, telephony and/or transfer of digital information or data) and/or interactive digital media; business customer information and consultancy services for promotional, advertising and marketing purposes in relation to broadcast reception apparatus and instruments and parts and fittings therefor including cable, satellite and terrestrial, analogue or digital reception; business administration and office functions including electronic and online storage service; electronic and online retrieval of data, files, e-mails, contacts, calendars, task lists, text messages, photos, music, audio, visual, audio visual, video, text, graphics, programs and other data or information; business administration and office functions including data storage services (other than physical storage); business administration and office functions including computerised data storage services; provision of business information and advice; consultancy, information and advisory services relating to all the aforesaid services; professional consultancy, information and advisory services relating to all the aforesaid services; consultancy, information and advisory services relating to all the aforesaid services provided on-line from a computer database or via a helpline or the Internet.

Class 38: Telecommunications; cable television broadcasting; cellular telephone communication; communications by computer terminals; communications by fiber [fibre] optic networks; communications by telegrams; communications by telephone; computer aided transmission of messages and images; electronic bulletin board services [telecommunications services]; electronic mail; facsimile transmission; information about telecommunication; message sending; paging services [radio, telephone or other means of electronic communication]; providing access to databases; providing internet chatrooms; providing online forums; providing telecommunication channels for teleshopping services; providing telecommunications connections to a global computer network; providing user access to global computer networks; radio broadcasting; rental of access time to global computer networks; rental of facsimile apparatus; rental of message sending apparatus; rental of modems; rental of telecommunication equipment; rental of telephones; satellite transmission; telecommunications routing and junction services; teleconferencing services; telegraph services; telephone services; television broadcasting; telex services; transmission of digital files; transmission of greeting cards online; transmission of telegrams; videoconferencing services; voice mail services; wire service; wireless broadcasting; video-conferencing services and sharing of files, images, music, video, photos, drawings, audio-visual, text, documents and data; telegraph communications services; mobile and fixed telecommunications services; communications services; satellite, cellular and radio communication services; television and radio broadcasting; transmission and communication services; broadcasting and/or transmission of radio and/or television programmes and/or films; satellite, DTT, cable, DSL and broadband broadcasting and/or transmission of audio and/or audio visual programming; transmission of audio, video and/or audio visual programming (by any means); transmission of video films; broadcasting and transmission of television programmes and films to personal computers; broadcasting and communications by means of or aided by computer, transmission of audio, video and/or audio visual programming by Internet protocol (IPTV); telecommunications services over the Internet including but not limited to services provided using voice over Internet protocol (VOIP); provision of access and/or connectivity to broadband networks whether fixed, portable or wireless; transmission of text, messages, sound and/or pictures; telecommunication and/or communication and/or broadcast and/or transmission of audio visual content; communication of information (including web pages), data by radio, telecommunications and by satellite; online managing and filtering of electronic communications; telephone, mobile telephone, message collection and transmission, radio-paging, call diversion, answerphone and directory enquiry services; personal numbering services; television screen based information broadcasting and retrieval services; loan of replacement telecommunications and communications apparatus and instruments in case of breakdown, loss or theft; computer aided transmission of messages and images; massaging services namely, sending, receiving and forwarding messages in the form of text, audio, graphic images or video or a combination of these formats; instant messaging; short message services (SMS); multimedia messaging services (MMS); unified messaging services; voicemail services; video conferencing services; video telephone services; providing access to telecommunications infrastructures for other operators; provision of access to electronic conferencing, discussion groups and chat rooms; provision of chat rooms; hire, leasing or rental of apparatus, instruments, installations or components for use in the provision of the aforementioned services; communications services by satellite, television and/or radio; news agency services; provision of access to news, current affairs and sports information; hiring, rental and leasing of communications apparatus; electronic mail services; telecommunication services relating to the Internet; telecommunication of information (including web pages); provision of location based services for telecommunications and communications apparatus and instruments; provision of wireless application protocol services including those utilising a secure communications channel; provision of information relating to or identifying telecommunications and communications apparatus and instruments; provision of telecommunications links to computer databases and websites on the Internet; telecommunications services dedicated to retailing goods and services through interactive communications with customers; interactive television services being telecommunications and/or communications and/or broadcasting and/or transmission services; interactive services for television viewers including those watching on mobile telephones and PCs being telecommunications and/or communications and/or broadcasting and/or transmission services; television broadcasting services incorporating interactive services for viewing guides and intelligent automated selection for programme recorded; interactive services for television viewers facilitating the recordal of programmes automatically initiated on the basis of customer viewing habits/preferences being telecommunications and/or communications and/or broadcasting and/or transmission services; providing interactive television viewers (including those watching on their mobile telephones or PCs) with access to information, data, graphics, audio and/or audio-visual content from a restricted group of Internet websites or portals; broadcasting and transmission of interactive television, interactive games, interactive news, interactive sport, interactive entertainment and interactive competitions; video on demand and near on demand telecommunication and/or communication and/or broadcast and/or transmission services; streaming delivery of video on demand streams to viewers; providing access to movies, videos and television programmes to viewers on demand and near on demand; professional consultancy services relating to broadcasting; providing access to a database storing information relating to a variety of goods and services; enabling access to the Internet; provision of a connection between websites and television viewers via an interactive television portal; internet portal services; web portal services; provision of broadband services; interactive television portal services providing access to Internet websites for television viewers via their television receiving equipment including digital television receiving equipment; providing access to Internet websites to mobile telephone users; leasing access time to an information database; telecommunications information; factual information services relating to television broadcasting; audio visual communication services; data communication services; data broadcasting services; delivery of messages; telecommunication and/or communication and/or broadcast and/or transmission of radio programmes, television programmes, films and motion pictures; telecommunication and/or communication and/or broadcast and/or transmission of audio and/or visual material and material from pre-recorded video tapes; transmission of radio programmes, television programmes, films, motion pictures, pre-recorded video tapes, audio and/or visual material, pre-recorded videocassettes, DVDs or pre-recorded video discs; rental, leasing or hire of communications equipment; message sending; telephonic or telephone communications services; wireless communication services; e-sell through services, namely delivery by telecommunication of media content, including video and films, television programmes, computer games, music, images and ring tones provided by internet, telephone line, cable, wireless transmission, satellite or terrestrial broadcast service; organisation of call information; monitoring and analysis of call information; call screening services; call alerting services; computer services for accessing a communications or computer network; computer services for accessing entertainment, education, information and data via telephone line, cable, wire or fibre, database or computer network; computer services for accessing and retrieving information, messages, text, sound, images and data via a computer or computer network; computer services for accessing and retrieving radio and television programmes; consultancy, synchronization, transfer and transmission of programs, data, files, e-mails, contacts, calendars, task lists, text messages, photos, music, audio, visual, audio visual, video, text, graphics, programs and other information via telecommunications and global communications networks; data synchronization over telecommunications, communications and computer networks; remote data access services; e-mail, email notification and alert services; online instant messaging; provision of online conferencing, discussion groups, message boards and chat rooms; internet portal services; web portal services; online video on demand or near on demand telecommunication and/or communication and/or broadcast and/or transmission services; online telecommunications services to enable the accessing and retrieving of data, files, e-mails, contacts, calendars, task lists, text messages, photos, music, audio, visual, audio visual, video, text, graphics, programs and other information via a computer or computer network or electronic device including services provided over a global communications network; online telecommunications services relating to webcasting and podcasting including services provided over a global communications network; peer to peer services; provision of interactive polling services being telecommunications and/or communications and/or broadcasting services; online dictionaries, encyclopaedias, and reference texts; online publications, including newspapers, magazines (periodicals), comics, journals (publications), books, user manuals, instructional and teaching materials; online posters, photographs, pictures, articles, vouchers and tickets; rental of radio equipment; consultancy, information and advisory services relating to all the aforesaid services; professional consultancy, information and advisory services relating to all the aforesaid services; consultancy, information and advisory services relating to all the aforesaid services provided on-line from a computer database or via a helpline or the Internet.

Class 41: Entertainment; amusement parks; amusements; arranging and conducting of concerts; booking of seats for shows; bookmobile services; cinema presentations; circuses; club services [entertainment […]]; disc jockey services; discotheque services; dubbing; electronic desktop publishing; entertainer services; entertainment information; film production, other than advertising films; gambling; game services provided on-line from a computer network; games equipment rental; holiday camp services [entertainment]; microfilming; movie studios; night clubs; operating lotteries; organization of balls; organization of competitions [[…] entertainment]; organization of fashion shows for entertainment purposes; organization of shows [impresario services]; party planning [entertainment]; production of music; production of radio and television programmes; production of shows; providing amusement arcade services; providing casino facilities [gambling]; providing karaoke services; providing on-line electronic publications, not downloadable; providing recreation facilities; publication of books; publication of electronic books and journals on-line; publication of texts, other than publicity texts; radio entertainment; recording studio services; recreation information; rental of audio equipment, rental of camcorders; rental of cine-films; rental of lighting apparatus for theatrical sets or television studios; rental of movie projectors and accessories; rental of radio and television sets; rental of show scenery; rental of sound recordings; rental of stage scenery; rental of video cassette recorders; rental of videotapes; scriptwriting services; subtitling; television entertainment; theatre productions; ticket agency services [entertainment]; translation; videotape editing; videotape film production; videotaping; writing of texts, other than publicity texts; provision and production of audio visual content relating to entertainment, education, training, sport and culture; education and entertainment services by means of radio, television, telephony, the Internet and on-line databases; hiring, rental and leasing of cine-films, videos, DVDs, sound recordings, sound recording apparatus, […], television sets and video recorders, DVD recorders and radio recorders; production of films for television and cinema; providing on-line electronic publications (not downloadable); publication of magazines, books, texts and printed matter; publication of electronic books or journals on-line; provision of electronic publications; online dictionaries, encyclopaedias, and reference texts; provision of online publications, including newspapers, magazines (periodicals), comics, journals (publications), books, user manuals, instructional and teaching materials; […] articles, […]; provision of recording studio facilities; hire of recording studios; live show production services; organising of sporting activities and competitions; box office services; production and presentation of programmes transmitted by television, the Internet or other telecommunication channels for the conduct of the interactive viewing, selection and purchase of goods; ticket reservation services relating to entertainment; production, presentation and distribution of radio and television programmes, interactive television, interactive games, interactive entertainment and interactive competitions; production, presentation and provision of competitions, contests, games, quizzes, studio entertainment and audience participation events; interactive television programme selection services for viewers; provision and production of interactive entertainment, news, cultural activities and sport for television viewers; interactive entertainment, […] cultural services for television viewers; viewing guide services; viewing guide services facilitating the recordal and fixed term rental of programmes and movies; television programme recording services automatically initiated on the basis of customer viewing habits/preferences; video on demand and near video on demand entertainment, educational, sporting and cultural services; providing movies, videos and television programmes to viewers on demand and near video on demand; betting, gaming and gambling services; credit betting, gaming, gambling, lottery […] services; credit card betting, gaming, gambling, lottery […] services; organising and conducting lotteries; electronic betting, gaming, gambling, lottery […] services provided by means of the Internet, or via a global computer network, or on-line from a computer network database, or via telephony including to mobile telephones, or via a television channel including a television channel distributed by satellite, terrestrial or cable television broadcast; arranging and conducting competitions for video game players and computer game players; pay to play games services; peer to peer interactive games and gaming services; interactive poker games and gaming including single and multi player gaming formats; presentation and production of poker competitions, tournaments, games and gaming; educational or entertainment games played online; electronic publishing services; video taping and filming services; provision of news, current affairs and sports information; news, current affairs and educational information services; information and advisory services relating to television and radio programmes, […], recreation, entertainment, music and to sport; information and advisory services relating to television and radio programmes, […], recreation, entertainment, music and to sport, provided on-line from a computer database or the Internet or to mobile telephones; factual information services relating to television and radio programmes, news and sport; leisure services; advisory services relating to entertainment; arranging […] festivals; booking agency services; cinema services; cinema studio services; distribution of radio programmes, television programmes, films, motion pictures, pre-recorded video tapes, audio and/or visual material, pre-recorded video cassettes, DVDs or pre-recorded video discs; production of radio programmes, television programmes, films, motion pictures, pre-recorded video tapes, audio and/or visual material, pre-recorded video cassettes, DVDs or pre-recorded video discs; editing of radio programmes, television programmes, films, motion pictures, pre-recorded video tapes, audio and/or visual material, prerecorded videocassettes, DVDs or pre-recorded video discs; hire, leasing or rental of radio programmes, television programmes, films, motion pictures, pre-recorded video tapes, audio and/or visual material, prerecorded video cassettes, DVDs or pre-recorded video discs; exhibition of radio programmes, television programmes, films, motion pictures, pre-recorded video tapes, audio and/or visual material, pre-recorded video cassettes, DVDs or pre-recorded video discs for entertainment, educational, sporting or cultural purposes; amusement park services with a theme of films, radio or television productions; organisation and management of amusement parks and theme parks; organisation of entertainment; preparation and production of radio programmes, television programmes, films, pre-recorded video tapes, DVDs, audio and/or visual material, prerecorded video cassettes, pre-recorded video discs or motion pictures for distribution for transmission or broadcast by any means; provision of radio programmes, television programmes, films, audio and/or visual material or motion pictures online (not downloadable); publication of printed media and recordings; digital imaging services for entertainment, sporting and cultural events; dubbing; video tape editing; entertainment; film production; rental of motion pictures; movie studios; providing movie theatres facilities; production of shows; video film tape production; rental of audio equipment; rental of lighting apparatus for theatrical sets or television studios; rental of motion pictures; rental of movie projectors and accessories; rental of radios; rental of televisions and television equipment; rental of video cameras; rental of video tapes; rental of video recorders; theatre productions; movie studio services; organising or hosting awards ceremonies; presentation of films; production of special effects for films; production of artwork for animated films; recording studio services; provision of video and audio content by sale and rental, whereby the consumer is entitled to single or multiple viewings of the media content via any form of playback device, all relating to entertainment, education, sports and culture; online news reporting services; online provision of information and general encyclopaedic knowledge relating to entertainment, […], sports, culture, news, current affairs, satellite, television and radio programmes, music, films, books and other printed matter, video games, computer games, amusement machines, amusement centres or amusement parks; online library services including the lending and exchanging of books and other publications and photographs; online card games; provision of telephone ring tones; leasing, rental and hiring of data rooms for entertainment, sporting and cultural events; high-definition studios, edit suites, voice-over studios and audio suites; consultancy, information and advisory services relating to all the aforesaid services; professional consultancy, information and advisory services relating to all the aforesaid services; consultancy, information and advisory services relating to all the aforesaid services provided on-line from a computer database or via a helpline or the internet; online provision of information […] relating to […] education; educational, sporting […] services for television viewers; presentation of live performances; news reporters services.

Class 42: Online storage of files, data, photographs, graphics, documents, videos, images, audio files, audio-visual files, visual files, computer files, computer applications and information for others, electronic data storage services for personal and business use, and services for the electronic storage and organization of files, images, music, audio, video, photos, drawings, audio-visual, text, documents and data; storage of computerised business information data; electronic and online storage service; data storage services (other than physical storage); computerised data storage services.

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.

3. 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 majority of the goods and services assumed to be identical are directed at the public at large including professionals (e.g. the IT and audio-visual goods in Class 9 and games in Class 28). However, some more specialised services (e.g. scriptwriting services; subtitling in Class 41, providing access to telecommunications infrastructures for other operators in Class 38 and arranging newspaper subscriptions for others in Class 35) target business customers with specific professional knowledge or expertise only.

For both publics the degree of attention may vary from average to high depending on the price, (specialised) nature, or terms and conditions of the purchased or contracted goods and services. For example, where the consumer is likely to pay an average attention when purchasing the often inexpensive consumer goods such as compact discs (Class 9), he/she may be highly attentive when acquiring the telecom infrastructure services for operators.

4. The signs

Earlier trade mark