OPPOSITION No B 2 616 780

Loewe S.A., Calle Goya 4, 28001 Madrid, Spain (opponent), represented by Gaëlle Mouton, Société Louis Vuitton Services, Département Propriété Intellectuelle, 2, rue du pont neuf, 75001 Paris, France (employee representative)

a g a i n s t

Irini Löwen, Ernst-Reuter Str. 4, 63263 Neu-Isenburg, Germany (applicant).

On 21/12/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 616 780 is upheld for all the contested goods.

2. European Union trade mark application No 14 272 603 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 350.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 14 272 603. The opposition is based on European Union trade mark registration No 152 405. The opponent invoked Article 8(1)(b) and 8(5) 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 goods

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

Class 14: Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and chronometric instruments.

Class 18: Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking-sticks; whips, harness and saddlery.

The contested goods are the following:

Class 14: Ornaments [jewellery, jewelry (Am.)].

The contested ornaments [jewellery, jewelry (Am.)] are included in the broad category of the opponent’s jewellery. These are, therefore, considered identical.

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 goods found to be identical are directed at the public at large. The degree of attention may vary from average to higher than average depending on the material and the price of the relevant goods.

3. The signs

LOEWE

Earlier trade mark	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

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

The earlier mark is a word mark, consisting of the word ‘LOEWE’. The only element of the earlier mark is likely to be perceived by a majority of the English-speaking public as a (foreign) surname as this is not an uncommon surname in the relevant territory. The element is distinctive for the relevant goods.

The contested sign is a figurative mark in dark blue colour, consisting of the elements ‘IRINI’ and ‘LÖWEN’, placed next to each other and the element ‘FRANKFURT/M’ below them written in smaller typeface, all of the above elements, written in standard letters and surrounded by two elliptical lines. The element ‘IRINI’ is likely to be perceived as a version of a largely used female given name existing in different forms within the EU (such as Irene, Irena, Ireen, etc.), especially as followed by the element ‘LÖWEN’, which is likely to be perceived as a (foreign) surname. The two dots, depicted above the letter ‘Ö’ in the element ‘LÖWEN’ if perceived at all (due to their very small size) are likely to be seen as a foreign accent or an umlaut, but do not in any case change the perception of the relevant part of the public for the letter ‘O’ as such. The elements ‘IRINI’ and ‘LÖWEN’ are distinctive for the relevant goods.

The element ‘FRANKFURT/M’ in the contested sign is likely to be understood by the relevant part of the public as a reference to the big German city Frankfurt on the Main (Frankfurt am Main). Bearing in mind that the relevant goods are jewellery, this element is non-distinctive for these goods, as it will be perceived as an indication of their origin.

The two elliptical lines of the contested sign will be perceived as such. It is, therefore, noted that the contested sign is composed of distinctive verbal elements (namely ‘IRINI’ and ‘LÖWEN’) and less distinctive figurative elements of a purely decorative nature, namely the elliptical lines, being simple geometrical shapes.

Visually, the signs coincide in the letters ´L´, ´O´, ´W´ and ´E´, placed as ´LO*WE´ in the earlier mark and as ´LÖWE*´ in the element ‘LÖWEN’ of the contested sign, albeit the letter ´O´ in the latter appears with two dots above it. The signs differ in the third letter ´E´ of the earlier mark and the element ‘IRINI’, the letter ´N´ of the element ‘LÖWEN’, the element ‘FRANKFURT/M’ (being non-distinctive for the relevant goods), the two elliptical lines (being of limited distinctiveness) and the blue colour of the contested sign.

Therefore, the signs are visually similar to an average degree considering the coincidences between the only element of the earlier mark and the distinctive element ‘LÖWEN’ of the contested sign.

Aurally, at least part of the English-speaking public will pronounce the sequence of letters ‘LOEWE’ (being all the letters of the earlier mark) in the same way as the sequence of letters ´LÖWE*´ in the element ‘LÖWEN’ of the contested sign and for the rest of the English-speaking public the sequences will be pronounced in a highly similar way. The pronunciation differs in the sound of the last letter ‘N’ of the element ‘LÖWEN’ of the contested sign, which has no counterpart in the earlier mark. However, due the position of this letter, being the last one in the given sequence of letters, this difference could remain unnoticed by the relevant part of the public.

The pronunciation of the signs further differs in the sounds of the elements ‘IRINI’ and ‘FRANKFURT/M’ (being non-distinctive) of the contested sign, which have no counterparts in the earlier mark.

Therefore, the signs are aurally similar to an average degree considering their coincidence in a distinctive element and the reduced impact of some elements as described above.

Conceptually, the majority of the relevant English-speaking public is likely to perceive the element ‘LOEWE’ in the earlier mark as a (foreign) surname, as this is not an uncommon surname in the relevant territory and the elements ‘IRINI’ and ‘LÖWEN’ of the contested sign as the combination of a given name and a (foreign) surname. The figurative element (being of limited distinctiveness) and the element ‘FRANKFURT/M’ (being non-distinctive) of the contested sign will be perceived as described above.

Furthermore, due to coincidences of the only element of the earlier mark and the element ‘LÖWEN’ of the contested sign, which is further preceded by the element ´IRINI´, it is likely that the relevant part of the public would understand both signs as referring to the same person, as the earlier mark could be seen as a reference to the surname and the contested- to the first name and the surname.

It follows that the signs are conceptually similar at least to an average degree.

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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The contested goods are identical to the opponent’s goods. The degree of attention may vary from average to higher than average.

The visual and aural coincidences between the signs originate from the shared letters and sounds of the only element of the earlier mark, namely ‘LOEWE’ and the distinctive element ‘LÖWEN’ of the contested sign.

As far as the rest of the elements of the contested sign are concerned, the other distinctive verbal element of the latter, namely ‘IRINI’, complements the meaning of the element ‘LÖWEN’, as the combination of them forms the forename and the surname of a given person; while the rest of the elements of the contested sign are non-distinctive or of a decorative nature. Furthermore, the coincidences between the elements ‘LOEWE’ and ‘LÖWEN’ in the signs in comparison and the fact that the contested sign includes the element ´IRINI´ are likely to lead the relevant part of the public to perceive both signs as referring to the same person.

Account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Therefore, due to the coincidences between the signs, when consumers encounter the signs at different times, they may assume that the signs have the same origin or at least economically linked origins.

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17). In the case at issue, the identity of the goods offsets any lesser degree of similarity between the signs.

Considering all the above, in particular the visual, aural and conceptual similarity of the signs and the identity of the goods, there is a likelihood of confusion on the part of the English-speaking public. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its reputation as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(5) EUTMR.

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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein. In the present case the opponent did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.

The Opposition Division

Vanessa PAGE

Eamonn KELLY

Volker MENSING

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 must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.