OPPOSITION No B 2 918 137

Hager Se, Zum Gunterstal, 66440 Blieskastel, Germany (opponent), represented by Patentanwälte Bernhardt | Wolff Partnerschaft mbB, Europaallee 17, 66113 Saarbrücken, Germany (professional representative)

a g a i n s t

Shenzhen Dongzhili Electronics Co., Ltd., 4F, Building B, Fuxinlin Industrial Zone, Hangcheng Industrial Area, Fuhua Community, Xixiang Street, Bao’an District, Shenzhen, People’s Republic of China (applicant), represented by José Izquierdo Faces, Iparraguirre, 42 - 3º izda, 48011 Bilbao (Vizcaya), Spain (professional representative).

On 20/06/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 918 137 is upheld for all the contested goods.

2. European Union trade mark application No 16 496 614 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 620.

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 16 496 614, . The opposition is based on, inter alia, European Union trade mark registration No 14 836 761, ‘hager services’.

The opponent invoked Article 8(1)(a) and (b) EUTMR.

PROOF OF USE

In accordance with Article 47(2) and (3) EUTMR, if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of filing or, where applicable, the date of priority 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 has not submitted the request for proof of use by way of a separate document as required by Article 10(1) EUTMDR.

Therefore, the request for proof of use is inadmissible pursuant to Article 10(1) EUTMDR.

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 European Union trade mark registration No 14 836 761, ‘hager services’.

1. The goods and services

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

Class 9: Installation equipment for electrical energy transmission and distribution, namely distribution cabinets, distribution boxes, distribution housings, distribution boards, small installation distribution boards, meter stations, meter panels, busbars, busbar mounts, phase rails, apparatus mounting rails, mounting plates, terminal strips, clamping strips, clamping pieces, taps and installation duct systems for cable routing and apparatus installation, namely cable raceways, wire cable trays, cable conduits, cable cladding, cable carriers, wiring ducts, connecting boxes, apparatus flush-mounting boxes, power supply equipment in column form, connection equipment for data transmission in column form, all the aforesaid goods included in class 9; Electric safety apparatus, namely circuit breakers, residual current devices and reporting apparatus, surge arresters, switch disconnectors, master switches, line circuit breakers, fuse switch disconnectors, fuses, fuse holders, fuse rails, motor circuit breakers, sockets, plugs and other contacts for industrial applications, enclosed circuit breakers; Electrical, including remote-acting, control and monitoring apparatus, namely switches, changeover switches, pressure switches, indicator lights, sockets, bells, transformers; Measuring apparatus, apparatus for detecting smoke, wind, rain, temperature, clarity and movement; Electric/electronic display and checking (supervision) apparatus for various applications; Automatic circuit controllers, namely relays, contactors, time switches, timers, programmable switching and control apparatus, load shredding relays, control relays, regulators, dimmers, remote controls, remote-control switches, remote-controlled circuit breakers, thermostats, electric installation equipment for the consumer sector, namely wall switches, ceiling switches (cord switches), dimmer switches, electronic switches, sockets, plugs and other contacts, including use units with integrated switches and/or fuses and/or residual current protection, data line sockets, telephone sockets, plugs, couplings, junction boxes, use units for connecting electric cooking stoves; Door intercom and video installations, burglar alarms and fire alarms, smoke and heat detectors, transmitters for telephones, video surveillance apparatus, transmitters and receivers, and cables for the transmission of data, images and sound; Electric/electronic apparatus for automatic control of building installations, Control panels and electric/electronic apparatus for automatic control for applications in the field of renewable energy; Electric/electronic apparatus for automatic control of devices for purifying, hardening, softening, degassing, gassing, disinfecting, heating and cooling of water, and for purifying, disinfecting, dehumidification, humidification, gassing, heating and cooling of air; Catalogues recorded on data carriers, planning and calculation software for electric installations, monitoring and control software for electric installations; Software for displaying and/or controlling, automating and operating electric and electronic installations and data processing installations, central processing units in which the aforesaid software is integrated; Control interfaces for the aforesaid equipment and installations, in particular remote controls, keyboards, touch screens and screens; Alarms and alarm installations; Burglar alarm installations, Burglar alarms; Alarm systems; Door alarms; Smoke alarms; Security alarms; Security alarms; Heat regulating apparatus; Monitoring apparatuses and instruments; Monitoring systems; Mains monitoring apparatus (Electric -); Apparatus for supplying, regulating, transmission, controlling, storage and distribution of electricity; Electronic and electrical apparatus and instruments, for use in generating or distributing energy; Apparatus for electricity supply; Chargers for electric batteries; Apparatus for recording and playing back for sound and image carriers; Computer interface apparatus; Electrical and electronic control apparatus; Apparatus for receiving and transforming encoded signals (decoders); Video processing, recording and reproduction apparatus; Apparatus for processing audio signals; Voice frequency transmission apparatus; Radio pagers; Telecommunication apparatus for computers; Digital telecommunications apparatus and instruments; Apparatus and instruments for recording, transmission, reproduction, storage, encryption, decryption, conversion and processing of sound or images, in particular sound, image and video recordings; Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; Apparatus and instruments for retrieval, storage, input, output, reproduction, processing, display and transmission of data and information; Computer apparatus for receiving and transmitting communications; Computer software and telecommunications apparatus (including modems) for creating connections to databases and the internet; Computer hardware and computer software; Computer software for document creation, production, conversion, recording, indexing, archiving, printing, displaying, viewing, publishing, transmission, encryption, management, typography and distribution; Electronic verification apparatus for verifying authentication of charge cards, bank cards, credit cards, debit cards and payment cards; Encoded debit cards and magnetic debit cards, credit cards and payment cards; Servers for web hosting; Computer apparatus and software for processing data; Computer software, recorded; Computer software for scanning images and documents; Apparatus, instruments and media for recording, reproducing, carrying, storing, processing, manipulating, transmitting, broadcasting and retrieving publications, text, signals, software, information, data, code, sounds and images; All the aforesaid goods in particular for use in the fields of lighting, electric control, signalling, monitoring, alarm and access control equipment, apparatus and systems, information networks, and in the fields of domestic and building technology.

Class 11: Lamp holders, lamp construction kits, included in class 11; Devices for purifying, hardening, softening, degassing, gassing, disinfecting, heating and cooling of water, and for purifying, disinfecting, dehumidification, humidification, gassing, heating and cooling of air, included in class 11.

Class 35: Business management consulting; Business consulting; Personnel management consulting; Computerised file management; Management of business affairs and commercial administration; Business consultancy and business management consultancy; Business management assistance; Business management consulting; All the aforesaid services in particular in connection with the fields of electric apparatus and installations, lighting, electric control, signalling, monitoring, alarm and access control equipment, apparatus, installations and systems and information networks, and in the fields of domestic and building technology.

Class 36: Insurance; Financial affairs; Monetary affairs; Banking; Real estate affairs; Saving banks; Issuing of travellers’ cheques and letters of credit; Real-estate valuations; Property (Real estate -) management; Financial, banking, monetary and stock market services; Consultancy relating to financial management, seeking and obtaining financial loans; Financing services through the issuing of extendable credit and loans; Credit and loans with automatic extensions; Credit leasing; Credit card services; Insurance and reinsurance in all fields; Insurance underwriting and finance by telephone; Leasing of telecommunications lines.

Class 37: Installation, maintenance and repair of fire and smoke alarms and fire and smoke detectors, and security alarm systems and detectors; Burglar alarms installation, maintenance and repair; Installation, maintenance and repair of electric apparatus, in particular electrical installation apparatus, electric installations, lighting, electric control, signalling, monitoring, alarm and access control equipment, apparatus, installations and systems, and apparatus in the fields of domestic technology, building technology and information networks; Installation, maintenance and repair of apparatus for telecommunications; Installation, maintenance and repair of telecommunications devices; Installation, repair, commissioning and maintenance of telecommunications installations, communications networks, computers and data protection hardware; Machinery installation, maintenance and repair; Installation, maintenance and repair of telecommunication networks; Installation, servicing, maintenance and repair of computer and communications networks; Repair; Installation services.

Class 38: Telecommunications, namely services for transmitting information via a website, in particular for remotely transmitting information via electric and/or electronic installations and/or via data processing installations; Telecommunications, namely services for transmitting information via lighting installations, heating devices, air conditioning installations, ventilating installations, drying installations, safety installations, roller shutters, roller blinds, blinds and sun blinds, installations for energy supply management, for consumption indication, installations with audio and video apparatus or data processing apparatus, in particular for remote control, remote regulation, remote automation and remote operation; Telecommunications, namely services for transmitting information via websites, computer terminals, telephones, call systems, video telephones, remote alarm installations, facsimile machines, in particular for remotely monitoring the health of human beings, for testing apparatus and equipment, for aiding, supporting and caring for human beings, for human beings to remotely monitor and dispatch alarm signals to and from apartments, houses and multiple-occupancy dwellings, and for industrial and public buildings; Rental and hire of telecommunications apparatus and instruments; Rental of message sending apparatus; Hire of telecommunications instruments; Rental of telephones; Rental of telecommunications apparatus, modems and apparatus for the transmission of messages; Rental of telecommunication facilities; Leasing of access time to global computer networks, namely leasing of access time to telecommunications networks in the fields of electrical installation apparatus, electric installations, lighting, electric control, signalling, monitoring, alarm and access control equipment, apparatus, installations and systems, and in the fields of domestic technology, building technology and information networks; Rental of telecommunications lines; Provision and rental of telephone chat lines; Rental of telephones; Leasing and rental services in connection with communications apparatus and equipment; Leasing and rental services in connection with telecommunications apparatus and equipment; Rental of telecommunications, broadcasting, radio and television apparatus; Rental of apparatus for data and message transmission or retrieval; Rental of telecommunication equipment including telephones and facsimile apparatus; Rental of modems; Information about telecommunication; Provision for others of telecommunications hubs; Providing access to a computer server by way of telephone lines, cable, network connections and the Internet; Providing telecommunications connections to a global computer network; Providing of access to websites and computer portals and/or telecommunications sites or portals in the fields of electrical installation apparatus, electric installations, lighting, electric control, signalling, monitoring, alarm and access control equipment, apparatus, installations and systems, and in the fields of domestic technology, building technology and information networks; Telecommunications routing and junction services; Telecommunication services; Internet telephony services; Telephone, facsimile and telex services, message collection and transmission, radio paging and electronic mail; Telephone communications and services; Electronic bulletin board services [telecommunications services]; Paging services (radio, telephone or other means of electronic communication), rental of mobile telephones; Information, consultancy and advisory services relating to telecommunications; Information about telecommunication; Consultancy and providing of information in connection with telecommunications for use in building and domestic technology, in particular for controlling and operating electric and electronic circuits, lighting, heating, air conditioning, aerating and ventilating, window shutters, roller shutters and sliding roofs, for remotely controlling electric apparatus, for fault, leakage and error management, for temperature management and fluid consumption management, for controlling and operating security, alarm, fire alarm, monitoring, access control, intruder prevention, sound and/or image recording and/or broadcasting systems, intercom, telephone, television, telecommunications and/or data processing systems; Information about telecommunications, namely information about telecommunications networks for use in building and domestic technology, in particular for controlling and operating electric and electronic circuits, lighting, heating, air conditioning, aerating and ventilating, window shutters, roller shutters and sliding roofs, for remotely controlling electric apparatus, for fault, leakage and error management, for temperature management and fluid consumption management, for controlling and operating security, alarm, fire alarm, monitoring, access control, intruder prevention, sound and/or image recording and/or broadcasting systems, intercom, telephone, television, telecommunications and/or data processing systems; Telecommunication gateway services; Data transmission and reception services via telecommunication means; Providing telecommunication facilities for the placing of orders for products and services via electronic data communication; Telecommunications services, namely, personal communication services; Long distance telephone services; Communications by cellular phones; Data transfer by telecommunications; Transmission of data through the use of electronic image processing by telephone link; Message sending; Telegram transmission; Computer-aided transmission and dissemination of data, sound and images by telecommunications; Computerised telephony services; Communications by fiber optic networks; Forwarding of messages of all kinds (webmessaging); Provision of an access to data networks, in particular to the Internet, to Internet forums, the worldwide web and to server services; Live transmissions accessible via home pages on the internet [webcam].

Class 39: Physical storage of electronically-stored data or documents; Distribution of energy.

Class 42: Technical consultancy, in particular regarding the design of electric systems and installations, in particular power supply installations, and for inspecting and monitoring the aforesaid systems and installations; Statements, Design, The installation, Fitting out, Servicing, Updating, Care, Adaptation and Rental of software; Troubleshooting of software; Technical consultancy in connection with computer networks for use in building and domestic technology, in particular for controlling and operating electric and electronic circuits, lighting, heating, air conditioning, aerating and ventilating, window shutters, roller shutters and sliding roofs, for remotely controlling electric apparatus, for fault, leakage and error management, for temperature management and fluid consumption management, for controlling and operating security, alarm, fire alarm, surveillance, access control, anti-intruder, sound and/or image recording and/or broadcasting, intercom, telephone, television, telecommunications and/or information technology systems; Web site maintenance, creation and hosting services; Research and development for others; Consultancy in the field of computers; Computer programming; Design and development of computer hardware and software; Conversion of data or documents from physical to electronic media; Technical project studies; Consultancy in the field of energy-saving; Design of homepages and websites; Creation of internet web sites; Website design and maintenance, for others; Creation and maintenance of web sites for others and hosting the web sites of others; Hosting of websites on the internet; Rental of web servers; Web site design and creation services; Graphic design for the compilation of web pages on the internet; Design, drawing and programming in connection with websites for a global computer network; Design, drawing and programming for the bringing together of websites on the internet; Statements, Device, Programming services and Updating websites for others; Managing the web sites of others; Hosting of websites, hosting of websites of others on a computer server for a global computer network; Hosting websites for others; Hosting web sites; Website design; Consultancy relating to creating, developing, maintaining and using websites; Website development services; Computer hardware, software and program design; Custom design of computer software, middleware and wireless data transmission software and systems; Testing and quality inspection of electric and electronic apparatus, equipment and instruments; Maintenance and repair of firmware.

Class 45: Security services for the protection and monitoring of human beings in their homes, of buildings, goods, apparatus and equipment for aiding, supporting and caring for human beings; Operation of an alarm and intervention centre (security services) monitoring of burglar and security alarms; Security consultancy; Security services for the protection of property and individuals; Video monitoring of systems, viewable via a global computer network (online monitoring).

The contested goods, after a limitation, are the following:

Class 9: Earphones; Headphones; Rechargeable batteries; Wireless headphones; Smartphones; Cell phones; Cases for smartphones; Microphones; Palmtop computers; Laptop computers; Tablet computer; Keyboards; Electronic pens [visual display units]; Mouse [computer peripheral]; Circuit closers; Photocopiers; Televisions; Car video recorders; Car audio apparatus.

Class 11: Lamps; Light-emitting diodes [LED] lighting apparatus; Electric lamps; Light bulbs; Luminous tubes for lighting; Aquarium lights; Automobile lights; Hanging lamps; Kettles, electric; Microwave ovens [cooking apparatus]; multicookers; Freezers; Refrigerators; Electric fans for personal use; Dehumidifiers for household use; Electric boilers; Solar water heaters; Disinfecting apparatus; Milk sterilizers; lighters.

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 terms ‘in particular’ and ‘including’, used in the opponent’s list of goods and services, indicate 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, they introduce a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

However, the term ‘namely’, used in the opponent’s list of goods and services to show the relationship of individual goods and services to a broader category, is exclusive and restricts the scope of protection only to the goods and services specifically listed.

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.

Contested goods in Class 9

The contested keyboards are included in the broad category of the opponent’s computer hardware. Therefore, they are identical.

The contested televisions; car video recorders; car audio apparatus; photocopiers are included in the broad category of, or overlap with, the opponent’s apparatus, instruments and media for recording, reproducing, carrying, storing, processing, manipulating, transmitting, broadcasting and retrieving publications, text, signals, software, information, data, code, sounds and images. Therefore, they are identical.

The contested rechargeable batteries are included in, or overlap with, the broad category of the opponent’s apparatus and instruments for accumulating electricity. Therefore, they are identical.

The contested circuit closers are included in, or overlap with, the broad category of the opponent’s apparatus and instruments for switching, regulating or controlling electricity. Therefore, they are identical.

The contested smartphones; cell phones; palmtop computers; laptop computers; tablet computer are highly similar to the opponent’s computer hardware. They have the same methods of use, producers, distribution channels and relevant publics and, furthermore, they are in competition.

The contested earphones; headphones; wireless headphones; microphones; mouse [computer peripheral]; electronic pens [visual display units] are similar to the opponent’s computer hardware, since the contested goods are normally used as accessories and therefore are complementary to the opponent’s computer hardware. Furthermore, these goods can have the same producers, relevant publics and distribution channels.

The contested cases for smartphones are accessories for mobile phones. They improve and complete the main product and usually they are produced by the same manufacturers, target the same public and are sold through the same distribution channels as mobile phones. Consumers will therefore expect both mobile phones, which are included in the opponent’s broad category of apparatus for recording, reproducing, carrying, storing, processing, manipulating, transmitting, broadcasting and retrieving publications, text, signals, software, information, data, code, sounds and images, and the contested accessories for mobile phones to be produced by the same entity. Consequently, these goods are similar to a low degree.

Contested goods in Class 11

The contested kettles, electric; electric boilers; solar water heaters are included in, or overlap with, the broad category of the opponent’s devices for heating of water. Therefore, they are identical.

The contested electric fans for personal use are included in, or overlap with, the broad category of the opponent’s devices for cooling of air. Therefore, they are identical.

The contested dehumidifiers for household use are included in, or overlap with, the broad category of the opponent’s devices for dehumidification. Therefore, they are identical.

The contested disinfecting apparatus include, as a broader category, the opponent’s devices for disinfecting water. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested microwave ovens [cooking apparatus]; multicookers are small electrical household appliances. They are similar to the opponent’s devices for heating of water. They have the same nature, producers, distribution channels and relevant public.

The contested freezers; refrigerators are large containers inside which the temperature is cold, for storing food and keeping it fresh. They are similar to the opponent’s devices for cooling of air. They are all electrical appliances and therefore have the same nature and can have the same producers, distribution channels and relevant publics.

The contested milk sterilizers are similar to the opponent’s devices for disinfecting water. They have the same purpose, nature, method of use, producers, distribution channels and relevant public. Furthermore, they are complementary.

The contested lamps; light-emitting diodes [LED] lighting apparatus; electric lamps; light bulbs; luminous tubes for lighting; aquarium lights; automobile lights; hanging lamps are different types of lamps, light apparatus and their parts. They are similar to the opponent’s lamp holders, as they are clearly complementary, they have the same distribution channels and they target the same consumers. Moreover, at least some of these goods have the same producers.

The contested lighters are small electrical devices whose purpose is to ignite fire, for example in stoves and water heaters. Some newer water heaters come equipped with a lighter or igniter. Therefore, they are similar to a low degree to the opponent’s devices for heating of water in Class 11. They can be manufactured by the same producers and sold via the same distribution channels. Furthermore, they are complementary.

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 or similar to various degrees are directed at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.

3. The signs

hager services
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.

Therefore, and in order not to examine the perception of the conflicting signs in respect of all the relevant languages, the examination will be limited to the English-speaking part of the public.

The earlier mark is a word mark, ‘hager services’. The verbal element ‘hager’ has no meaning for the relevant English-speaking public and is therefore distinctive. The verbal element ‘services’ will be associated with, inter alia, ‘work performed for remuneration’ or ‘a system for providing the public with gas, water, etc’ (information extracted from Collins English dictionary on 01/06/2018 at https://www.collinsdictionary.com/dictionary/english/services). Bearing in mind that the relevant goods can be the object of such services, this verbal element is weak for these goods, namely apparatus and instruments for switching, accumulating, regulating or controlling electricity; computer hardware; apparatus, instruments and media for recording, reproducing, carrying, storing, processing, manipulating, transmitting, broadcasting and retrieving publications, text, signals, software, information, data, code, sounds and images; lamp holders; devices for disinfecting, heating of water, and for disinfecting, dehumidification, cooling of air, included in class 11.

The contested sign is a figurative sign consisting of the verbal element ‘haoer’ in italic stylised black letters. This verbal element has no meaning for the relevant public and is therefore distinctive.

Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Visually, the signs coincide in four out of five letters, ‘ha*er’, namely in the distinctive verbal element ‘hager’ of the earlier mark and the distinctive verbal element ‘haoer’ of the contested sign. However, they differ in the third letters of those verbal elements, namely ‘g’ versus ‘o’, although these letters coincide partly in their oval shapes. Furthermore, the signs differ in the weak verbal element ‘services’ of the earlier mark.

Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛ha*er’, present identically in the distinctive verbal element ‘hager’ of the earlier mark and the distinctive verbal element ‘haoer’ of the contested sign. The pronunciation differs in the sound of the third letters of those verbal elements, namely ‘g’ versus ‘o’, neither of which has a counterpart in the opposing sign. Furthermore, the signs differ in the sound of the additional verbal element ‘services’ of the earlier sign, although this element is weak for the goods.

Therefore, the signs are aurally similar to an average degree.

Conceptually, although the public in the relevant territory will perceive the meaning of the element ‘services’ of the earlier mark, as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

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

4. Distinctiveness of the earlier mark

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

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the 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, despite the presence of a weak element in the mark, as stated above in section c) of this decision.

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).

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

In the present case, the contested goods are identical or similar to various degrees to the opponent’s goods and services. The degree of attention varies from average to high.

The signs are visually and aurally similar to an average degree, to the extent that they coincide in four out of five letters in the distinctive verbal elements ‘hager’ and ‘haoer’. The degree of distinctiveness of the earlier mark is average.

Taking into account all the circumstances of the case, the differences between the marks are not sufficient to counterbalance the similarity between them. The relevant public may believe that the relevant goods come from the same undertaking or at least economically linked undertakings.

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).

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

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar, even to a low degree, to those of the earlier trade mark.

As the earlier right European Union trade mark registration No 14 836 761, ‘hager services’, 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) or their substantiation.

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(1)(a) EUTMR.

COSTS

According to Article 109(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 Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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.

The Opposition Division

Loreto URRACA LUQUE

Lena FRANKENBERG GLANTZ

Claudia ATTINÀ

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.