OPPOSITION No B 2 854 704

Axent Switzerland AG, Belsitostrasse 17, 8645 Rapperswil-Jona, Switzerland (opponent), represented by Hoffmann Eitle Patent- und Rechtsanwälte PartmbB, Arabellastr. 30, 81925 München, Germany (professional representative)

a g a i n s t

Shenzhen Qianxiang Information Technology Co. Ltd., Rm.201 Bldg.A No.1 Qianwan Road 1, Qianhai Shenzhen-Hong Kong Cooperation Zone, Shenzhen, People’s Republic of China (applicant), represented by Sakellarides Law Offices, Adrianou Str. 70, 10556 Athens, Greece (professional representative).

On 18/09/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 854 704 is partially upheld, namely for the following contested goods and services:

Class 8: Crimping irons; curling tongs; nail clippers, electric or non-electric; hand implements for hair curling; razor blades; hair clippers for personal use, electric and non-electric; depilation appliances, electric and non-electric; beard clippers; toothbrushes, electric; tweezers; shears; flat irons.

Class 20: Office furniture; filing cabinets; bottle caps, not of metal; mirrors [looking glasses]; yellow amber; signboards of wood or plastics; pet cushions; furniture fittings, not of metal; pillows; silvered glass [mirrors]; towel stands [furniture].

Class 21: Glass bowls; ceramics for household purposes; china ornaments; drinking vessels; tea services [tableware]; large-toothed combs for the hair; electric combs; currycombs; toothpicks; cosmetic utensils; boxes for dispensing paper towels; insulating flasks; cleaning instruments, hand-operated; opaline glass.

Class 35: Advertising; on-line advertising on a computer network; marketing research; scriptwriting for advertising purposes; commercial information agencies; marketing; sales promotion for others; search engine optimisation; web site traffic optimisation; web indexing for commercial or advertising purposes; presentation of goods on communication media, for retail purposes; commercial administration of the licensing of the goods and services of others; import-export agencies; retail or wholesale services for pharmaceutical, veterinary and sanitary preparations and medical supplies.

2. European Union trade mark application No 16 013 922 is rejected for all the above goods. It may proceed for the remaining goods and services.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 16 013 922 . The opposition is based on European Union trade mark registrations No 11 540 929 for the word mark ‘AXENT’ (TMº1) and No 12 177 093 for the word mark ‘AXENT COLLECTION’ (TMº2). 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.

a) The goods and services

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

For TMº1:

Class 11: Water heaters; refrigerators; air cooling apparatus; drying apparatus; drying apparatus and installations; water supply installations; hydrants; hydrants for water supply; heating installations; pressure water tanks; ornamental fountains; bath fittings; shower bath fittings; showers; toilet bowls; toilet seats; sanitary apparatus and installations; flushing apparatus; hand drying apparatus for washrooms; water purification apparatus; radiators (heating); all aforementioned goods excluding the product and service area kitchen ware, kitchen and restaurant products, kitchen and restaurant utilities, kitchen and restaurant appliances: home, kitchen and restaurant decoration products, such as candle sticks, table sets, fruit bowls and similar decoration products, restaurant furniture and outdoor furniture.

Class 20: Cupboards; sideboards; chests of drawers; counters (tables); washstands (furniture); dressing tables; towel closets (furniture); closures, not of metal, for containers; water pipe valves of plastic; mirrors (looking glasses); bamboo; bead curtains for decoration; display boards; nesting boxes for household pets; identification bracelets, not of metal, for hospitals; coffins; furniture fittings, not of metal; pillows; poles, not of metal; clothes hooks, not of metal; all aforementioned goods excluding the product and service area kitchen ware, kitchen and restaurant products, kitchen and restaurant utilities, kitchen and restaurant appliances: home, kitchen and restaurant decoration products, such as candle sticks, table sets, fruit bowls and similar decoration products, restaurant furniture and outdoor furniture.

Class 21: Napkin holders; glass (receptacles); ceramics for household purposes; China ornaments; tea services (tableware); combs; toothpicks; cosmetic utensils; vacuum bottles; cleaning instruments, hand-operated; crystal (glassware); drinking troughs; insect traps; all aforementioned goods excluding the product and service area kitchen ware, kitchen and restaurant products, kitchen and restaurant utilities, kitchen and restaurant appliances: home, kitchen and restaurant decoration products, such as candle sticks, table sets, fruit bowls and similar decoration products, restaurant furniture and outdoor furniture.

For TMº2:

Class 11: Water heaters; refrigerators; air cooling apparatus; drying apparatus; drying apparatus and installations; water supply installations; whirlpools; hydrants; hydrants for water supply; heating installations; pressure water tanks; ornamental fountains; bath fittings; bath fixtures; bath taps; shower bath fittings; showers; water closets; toilet bowls; multiple function toilets; toilet seats; sanitary apparatus and installations; flushing apparatus; hand drying apparatus for washrooms; water purification apparatus; radiators (heating).

Class 20: Cupboards; sideboards; chests of drawers; counters (tables); washstands (furniture); dressing tables; towel closets (furniture); closures, not of metal, for containers; water pipe valves of plastic; mirrors (looking glasses); bamboo; bead curtains for decoration; display boards; nesting boxes for household pets; identification bracelets, not of metal, for hospitals; coffins; furniture fittings, not of metal; pillows; poles, not of metal; clothes hooks, not of metal; all afore-mentioned goods excluding restaurant furniture and outdoor furniture.

Class 35: Retail or wholesale services relating to water heaters, refrigerators, air cooling apparatus, drying apparatus, drying apparatus and installations, whirlpools, water supply installations, hydrants, hydrants for water supply, heating installations, pressure water tanks, ornamental fountains, bath fittings, bath fixtures, bath taps, shower bath fittings, showers, water closets, toilet bowls, multiple function toilets, toilet seats, sanitary apparatus and installations, flushing apparatus, hand drying apparatus for washrooms, water purification apparatus, radiators (heating), cupboards, sideboards, chests of drawers, counters (tables), washstands (furniture), dressing tables, towel closets (furniture), closures (not of metal), for containers, water pipe valves of plastic, mirrors (looking glasses), bamboo, bead curtains for decoration, display boards, nesting boxes for household pets, identification bracelets (not of metal), for hospitals, coffins, furniture fittings (not of metal), pillows, poles (not of metal), clothes hooks (not of metal), napkin holders, glass (receptacles), ceramics for household purposes, China ornaments, tea services (tableware), combs, toothpicks, cosmetic utensils, vacuum bottles, cleaning instruments (hand-operated), crystal (glassware), drinking troughs, insect traps; presentation of goods on communication media, for retail or wholesale purposes; provision of information and advice top consumers regarding the selection of products and items to be purchased; advertising in the internet, for others; arranging of commercial transactions for third parties, also on the internet; arranging of contracts regarding the purchase and sale of goods, also via the internet; all afore-mentioned goods excluding the product and service areas kitchen ware, kitchen and restaurant products, kitchen and restaurant utilities, kitchen and restaurant appliances, home, kitchen and restaurant decoration products, such as candle sticks, table sets, fruit bowls and similar decoration products, restaurant furniture and outdoor furniture.

The contested goods and services are the following:

Class 8: Abrading instruments [hand instruments]; hand tools, hand-operated; bill-hooks; crimping irons; garden tools, hand-operated; harpoons for fishing; beard clippers; curling tongs; nail clippers, electric or non-electric; hand implements for hair curling; razor blades; hair clippers for personal use, electric and non-electric; depilation appliances, electric and non-electric; hand drills [hand tools]; borers; tweezers; shears; table forks; paring knives; flat irons.

Class 20: Office furniture; filing cabinets; bins, not of metal; bottle caps, not of metal; tool handles, not of metal; mirrors [looking glasses]; fans for personal use, non-electric; wind chimes [decoration]; yellow amber; signboards of wood or plastics; decorations of plastic for foodstuffs; pet cushions; furniture fittings, not of metal; pillows; door fasteners, not of metal; locks, other than electric, not of metal; silvered glass [mirrors]; hand-held mirrors [toilet mirrors]; towel stands [furniture]; covers for clothing [wardrobe].

Class 21: Containers for household or kitchen use; trays for domestic purposes; strainers; glass bowls; ceramics for household purposes; china ornaments; drinking vessels; tea services [tableware]; large-toothed combs for the hair; electric combs; currycombs; toothbrushes, electric; boxes for dispensing paper towels; dustbins; toothpicks; cosmetic utensils; insulating flasks; cleaning instruments, hand-operated; opaline glass; fly swatters.

Class 35: Advertising; on-line advertising on a computer network; presentation of goods on communication media, for retail purposes; marketing research; scriptwriting for advertising purposes; commercial information agencies; economic forecasting; commercial administration of the licensing of the goods and services of others; marketing; sales promotion for others; import-export agencies; personnel management consultancy; relocation services for businesses; search engine optimisation; web site traffic optimisation; web indexing for commercial or advertising purposes; appointment scheduling services [office functions]; business auditing; rental of vending machines; retail or wholesale services for pharmaceutical, veterinary and sanitary preparations and medical supplies.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

The term ‘such as’, used in the opponent’s list of goods and services, indicates that the specific goods and services are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu-Tride, EU:T:2003:107).

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

The Opposition Division points out that the opponent’s list of goods and services has a limitation. This limitation affects all classes of TMº1 and Class 35 of TMº2. The limitation is all aforementioned goods excluding the product and service area kitchen ware, kitchen and restaurant products, kitchen and restaurant utilities, kitchen and restaurant appliances: home, kitchen and restaurant decoration products, such as candle sticks, table sets, fruit bowls and similar decoration products, restaurant furniture and outdoor furniture. This means that all the opponent’s goods and services do not include, in general terms, kitchen and restaurant utilities, home and restaurant decoration, as well as restaurant and outdoor furniture. The Opposition Division will take this limitation into consideration throughout the comparison of goods and services, but will not list it in each case.

Class 20 of TMº2 also has a limitation, namely all afore-mentioned goods excluding restaurant furniture and outdoor furniture, which will be taken into consideration in the comparison below.

Contested goods in Class 8

The contested crimping irons; curling tongs; nail clippers, electric or non-electric; hand implements for hair curling; razor blades; hair clippers for personal use, electric and non-electric; depilation appliances, electric and non-electric; beard clippers; tweezers; shears; flat irons are similar to the opponent’s cosmetic utensils in Class 21 of TMº1, also taking into consideration the limitation. Their purpose, distribution channels and relevant public are similar as all these goods are related to embellishing the human body (cosmetics).

The contested abrading instruments [hand instruments]; hand tools, hand-operated; bill-hooks; garden tools, hand-operated; harpoons for fishing; hand drills [hand tools]; borers; table forks; paring knives are dissimilar to the opponent’s goods and services of TMº1 and TMº2. Their natures, purposes, distribution channels, producers, methods of use are different to apparatus and instruments for refrigerating, heating and water supply in general terms (Class 11), to furniture (Class 20), to the other household and kitchen utensils (Class 21) and to the retail and wholesale services (Class 35).

Contested goods in Class 20

The contested mirrors [looking glasses]; furniture fittings, not of metal; pillows and towel stands [furniture] include, as broader categories, or overlap with (due to the limitation of the opponent’s goods), the opponent’s mirrors [looking glasses], furniture fittings, not of metal; pillows; towel stands [furniture] of TMº1. Since the Opposition Division cannot dissect ex officio the broad categories of the contested goods, they are considered identical to the opponent’s goods.

The contested office furniture includes, as a broader category, the opponent’s chests of drawers of TMº1. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods (having taken into consideration the limitation).

The contested pet cushions are highly similar to the opponent’s nesting boxes for household pets of TMº1 (having taken into consideration the limitation) as the purpose, a place for the animal to rest, the distribution channels, sales outlets, producers, method of use, relevant public are the same. Furthermore, they are in competition.

The contested filing cabinets are similar to the opponent’s chest of drawers of TMº1 (having taken into consideration the limitation). The nature and purpose of the goods (to arrange and organise things), the distribution channels, sales outlets, producers and method of use are the same.

The contested bottle caps, not of metal are similar to the opponent’s closures, not of metal, for containers of TMº1. Their purpose is to close a recipient, independently of the product inside and both are not of metal. Therefore, the purpose, distribution channels, sales outlets, producers, method of use are similar (having taken into consideration the limitation).

The contested signboards of wood or plastics are similar to the opponent’s display boards of TMº1 (having taken into consideration the limitation). They have the same purpose, distribution channels, sales outlets, producers and relevant public. Moreover, these goods are in competition.

The contested yellow amber is similar to the opponent’s bamboo of TMº1. Both are materials from which different goods may be formed. Therefore, they may be distributed through the same channels, have the same relevant public and are in competition, having taken into account the limitation.

The contested silvered glass [mirrors] are similar to the opponent’s crystal (glassware) in Class 21 of TMº1. Both are materials from which different goods may be formed. Therefore, they may be distributed through the same channels, have the same relevant public and are in competition, having taken into account the limitation.

The contested bins, not of metal; tool handles, not of metal; fans for personal use, non-electric; wind chimes [decoration]; decorations of plastic for foodstuffs; door fasteners, not of metal; locks, other than electric, not of metal; hand-held mirrors [mirrors]; covers for clothing [wardrobe] are dissimilar to the opponent’s goods and services of TMº1 and TMº2, as their purposes, distribution channels, sales outlets, producers and methods of use are different or these goods are expressly excluded from the opponent’s list by the limitation.

Contested goods in Class 21

The contested ceramics for household purposes; china ornaments; tea services [tableware]; toothpicks; cosmetic utensils; cleaning instruments, hand-operated include, as broader categories, or overlap with, the opponent’s ceramics for household purposes; china ornaments; tea services [tableware]; toothpicks; cosmetic utensils; cleaning instruments, hand-operated of TMº1 (having taken into consideration the limitation). Since the Opposition Division cannot dissect ex officio the broad categories of the contested goods, they are considered identical to the opponent’s goods.

The contested large-toothed combs for the hair; electric combs; currycombs are included in the broad category of the opponent’s combs of TMº1 (having taken into consideration the limitation). Therefore, they are identical.

The contested toothbrushes, electric are similar to the opponent’s cosmetic utensils of TMº1 (having taken into consideration the limitation). The purpose, distribution channels and relevant public are similar as all these goods are related to embellishing and taking care of the human body (cosmetics).

The contested boxes for dispensing paper towels are highly similar, if not identical, to the opponent’s napkin holders of TMº1 (having taken into consideration the limitation), as both hold napkins in order to keep them clean and in one secure place. They have the same purpose, distribution channels, producers and are in competition.

The contested insulating flasks are similar to the opponent’s vacuum bottles of TMº1 as the purpose, method of use, distribution channels, producers are the same. Moreover, they are in competition.

The contested glass bowls; drinking vessels and opaline glass are similar to the opponent’s crystal (glassware) of TMº1. They come from similar producers, have similar distribution channels, have the same purpose and relevant public (having taken into consideration the limitation).

The contested containers for household or kitchen use; strainers; trays for domestic purposes are dissimilar to the opponent’s goods of TMº1 and TMº2, as these are expressly excluded from the list of goods and services.

The contested dustbins and fly swatters are dissimilar to the opponent’s goods and services of TMº1 and TMº2. Their natures, purposes, distribution channels, sales outlets, producers and methods of use are different, as none of the opponent’s goods and services are related to the brushing of teeth, dustbins or killing flies.

Contested services in Class 35

The contested advertising; on-line advertising on a computer network; marketing research; scriptwriting for advertising purposes; marketing; sales promotion for others; search engine optimisation; web site traffic optimisation; web indexing for commercial or advertising purposes include, as broader categories, or overlap with, the opponent’s advertising in the internet, for others of TMº2 (having taken into consideration the limitation). Since the Opposition Division cannot dissect ex officio the broader categories of the contested services, they are considered identical to the opponent’s services.

The contested presentation of goods on communication media, for retail purposes; commercial administration of the licensing of the goods and services of others include, as broader categories, or overlap with, the opponent’s presentation of goods on communication media, for retail or wholesale purposes of TMº2 (having taken into consideration the limitation). Since the Opposition Division cannot dissect ex officio the broad category of the contested services, they are considered identical to the opponent’s services.

The contested retail or wholesale services for pharmaceutical, veterinary and sanitary preparations and medical supplies are similar to the opponent’s retail or wholesale services relating to the goods in Classes 8, 20 and 21 of TMº2 (having taken into consideration the limitation). The services at issue have the same nature since both are retail/wholesale services, the same purpose of allowing consumers to conveniently satisfy different shopping needs, and the same method of use.

The contested commercial information agencies are similar to a low degree to the opponent’s arranging of contracts regarding the purchase and sale of goods, also via the internet of TMº2 (having taken into consideration the limitation). The purpose of providing of commercial information services is to provide information necessary for running the business. Therefore, they have the same purpose and usually coincide in provider and relevant public.

The contested import-export agencies are similar to a low degree to the opponent’s arranging of commercial transactions for third parties, also on the internet of TMº2 (having taken into consideration the limitation). They have the same purpose, namely the preparatory or ancillary work to the commercialisation of the goods. Therefore, their natures, providers, methods of use are similar and they can be in competition.

The services economic forecasting; personnel management consultancy; relocation services for businesses; appointment scheduling services [office functions]; business auditing; rental of vending machines are dissimilar to the opponent’s services in Class 35 of TMº2 as well as to the other goods and services of TMº1 and TMº2 (having taken into consideration the limitation). The nature, providers and purpose are different as the contested services are more related to the internal day-to-day operations of an organisation then the advertising/sales of goods.

b) 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 and services found to be identical or similar (to varying degrees) are directed at the public at large and partly to the professional public (Class 35). The public’s degree of attentiveness may vary from low (Classes 20 and 21) to high, depending on the price, sophistication, or terms and conditions of the goods and services purchased.

c) The signs

TMº1 AXENT TMº2 AXENT COLLECTION
Earlier trade marks	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 element ‘COLLECTION’ of TMº2 is a basic English word that is distinctive to a low degree and descriptive (06/10/2004, T‑117/03 - T‑119/03 & T‑171/03, NL, EU:T:2004:293, § 33) as it refers in common parlance to a line of goods or services which have some common features (21/07/2016, R 1315/2015‑4, CHEF COLLECTION (fig.), § 18; 15/04/2015, R 2289/2014‑1, capsule COLLECTION (FIG. MARK), § 20; 19/09/2013, R 1753/2012‑1, Premium Collection (FIGURATIVE MARK), § 16). Therefore, it is a non-distinctive element.

The earlier marks’ verbal element ‘AXENT’ has no meaning for the relevant public and is, therefore, distinctive. The upper-case letters used in the earlier marks do not have any impact on the assessment of the signs’ similarity since the signs are word marks and, thus, their protection relates to the verbal elements and not to the specific figurative or stylistic elements that the marks might have (21/09/2012, T‑278/10, WESTERN GOLD / WeserGold et.al., EU:T:2012:1257, § 44, 46).

Word marks have no dominant elements because by definition they are written in standard typeface. The length of the words or the number of letters is not an issue of dominance but of overall impression.

Although the contested sign is a figurative mark, the verbal element is only slightly stylised, making it easily readable and identifiable. The verbal element ‘Auxent’ of the contested sign has no meaning for the relevant public and is distinctive.

Visually, the signs coincide in the string of letters ‘A*XENT’. They differ in the second letter ‘u’ of the contested sign. The signs also differ in the non-distinctive verbal element ‘COLLECTION’ of TM 2. Therefore, it will only have a limited impact if any in the comparison. Based on the foregoing, the differences are not outstanding and, therefore, the signs are visually similar to a high degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‘A*XENT’, present identically in both signs. The pronunciation of the letter ‘u’ in the contested sign, which goes a bit under as it is, together with another vowel (‘A’), weak in comparison to the same beginning and ending of the sign.

Moreover, the relevant public is likely to omit the verbal element ‘COLLECTION’ when pronouncing the earlier TMº2, either simply to economise on words, because it takes a relatively long time to pronounce and is easily separable from the verbal element ‘AXENT’ when being spoken, or by disregarding it insofar as they perceive it as having a very reduced degree of inherent distinctiveness or even as descriptive (06/10/2017, T‑139/16, Berg Outdoor, EU:T:2017:705, § 61; 07/02/2013, T‑50/12, Metro Kids Company, EU:T:2013:68, § 42).

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

Conceptually, neither verbal element ‘AXENT’ nor ‘Auxent’ has a meaning for the public in the relevant territory, while the notion of ‘COLLECTION’ cannot have a relevant impact due to its non-distinctiveness (16/12/2015, T‑491/13, TRIDENT PURE / PURE et al., EU:T:2015:979, § 93 and 108). Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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

d) Distinctiveness of the earlier marks

The distinctiveness of the earlier marks 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 marks are particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. In the present case, the earlier trade marks as a whole have no meaning for any of the goods and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier marks must be seen as normal, despite the presence of a non-distinctive element in the mark, as stated above in section c) of this decision.

e) 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).

The goods and services are partly identical, partly similar (to varying degrees) and partly dissimilar. The earlier marks have a normal distinctiveness. The relevant public will have between a low to a high degree of attention depending of the kind of goods and services, their sophistication and price.

The signs are visually and aurally similar to a high degree, based on the identical sequence of the letters ‘A*XENT’, and a conceptual comparison is not possible as they have no meaning. The verbal element ‘COLLECTION’ of TMº2 is non-distinctive and, therefore, has a little or no impact in the comparison as it cannot indicate any origin of the goods and services, as mentioned above.

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). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

Therefore, the differing letter ‘u’ of the contested sign does not outweigh the similarities of the signs. Consequently, there is a likelihood of confusion. Even taking into account the high degree of attention of the relevant public with regard to the relevant goods and services, the difference between the signs is not big enough to avoid a likelihood of confusion.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registrations.

It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical or similar (to varying degrees) to those of the earlier trade mark. Moreover, the trade mark must be rejected for the goods found similar to a low degree, as the similarities between the signs and the identical sequence of the letter ‘A*XENT’ outweigh the differences, resulting in a likelihood of confusion.

The rest of the contested goods and services are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods and services cannot be successful.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested good and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Renata COTTRELL

Astrid Victoria WÄBER

Gonzalo BILBAO TEJADA

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.