OPPOSITION No B 2 764 564

CKL Holdings N.V., Klosterstr. 28-30, 4700 Eupen, Belgium (opponent)

a g a i n s t

Jianying Chen, Via Quintilio Varo 33, 00174 Rome, Italy (applicant).

On 08/08/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 764 564 is upheld for all the contested goods.

2. European Union trade mark application No 15 478 407 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 320.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 478 407 ‘Angela baby’ (word). The opposition is based on, inter alia, French trade mark registration No 4 253 098 ‘Angela’ (word). The opponent invoked Article 8(1)(b) EUTMR.

LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s French trade mark registration No 4 253 098.

1. The goods

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

Class 25: Clothing; shoes; headgear; shirts; leather clothing; belts (clothing); furs (clothing); gloves (clothing); scarves; ties; hosiery; socks; slippers; beach shoes; skiing boots; sport shoes ; underwear.

The contested goods are the following:

Class 25: Clothing; footwear; headgear.

Contested goods in Class 25

The goods headgear and clothing are identically contained in the list of goods of both marks.

The goods footwear of the contested sign are a broader category, which includes among others the goods shoes, sport shoes, skiing boots of the earlier mark. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

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 is considered to be average.

3. The signs

Angela	Angela baby
Earlier trade mark	Contested sign

The relevant territory is France.

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).

Both marks share the word element ‘Angela’, which comprises the earlier mark and is the first word element out of two, in the contested sign.

The common element ‘Angela’ will be seen as a feminine first name. Even if the name ‘Angela’ is not that common in France, due to the existence of many variations of the name in France with the same root ‘Angel’, such as ‘Angèle’, ‘Angeline’, ‘Angelique’ the word will be recognised as standing for a female first name. The name does not create any connotations with the goods at hand. Therefore, the shared element ‘Angela’ has a normal degree of distinctiveness regarding the goods at issue.

The additional element ‘baby’ of the contested mark is an English word meaning ‘a very young child; an infant’ (Oxford English Dictionary). Since this is a very basic English word and also the French word for baby is quite similar to it (‘bébé’), the relevant public will understand the meaning of the word (08/07/2011, R 883/2010-2, babytolove). Accordingly, the word will be non-distinctive, because the relevant public will understand it as referring to a characteristic of the goods, i.e. designated for babies.

Visually, the signs coincide in ‘Angela’, which constitutes the earlier mark and represents the first word element of the contested sign. They differ in the element ‘baby’ of the contested sign, which has no counterpart in the earlier mark. Accordingly and upon taking into account that the consumers generally focus on the beginning of a sign and that for the consumers the differing element is non-distinctive, the signs are visually similar to a high degree.

Aurally, the pronunciation of the signs coincides in the sound of ‘Angela’, which is the only word element in the earlier sign and the first word in the contested one. The pronunciation differs in the sound of the word ‘baby’ in the applicant’s sign, which has no counterpart in the earlier mark. Therefore, as in the case of visual comparison, the signs are aurally similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Since both signs will be perceived as referring to the forename ‘Angela’, the signs are conceptually highly similar. The concept of the word ‘baby’ would have very little impact as it is non-distinctive.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation. Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the 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

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).

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).

It has been established that the goods at issue are identical and that they are directed at the public at large whose degree of attention is average. The signs have been found to be highly similar in all three aspects of comparison. The earlier mark has a normal degree of distinctiveness with respect to the relevant goods.

In view of the above, the relevant factors support the finding that likelihood of confusion on the part of the public exists, if the signs are used for identical goods. Given that the earlier mark is entirely contained at the beginning of the contested one and that the contested mark contains one additional element, which will be perceived as indicating a characteristic of the goods as explained above, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

Therefore, the opposition is well founded on the basis of the opponent’s French trade mark registration No 4 253 098. It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier French trade mark registration No 4 253 098 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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

Teodora Valentinova TSENOVA

Teodora Valentinova TSENOVA-PETROVA

Vita VORONECKAITE

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.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.