OPPOSITION No B 2 973 751

Elon Group AB, Box 220 94, 702 03 Örebro, Sweden (opponent), represented by Advokatfirman Lindahl KB, Studentgatan 6, 211 38 Malmö, Sweden (professional representative)

a g a i n s t

SC Ratio Term SRL, str. Careiului, nr. 164, 440187 Satu Mare, Romania (applicant).

On 16/04/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 973 751 is rejected in its entirety.

2. The opponent bears the costs.

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 16 750 713 for the figurative mark , namely against some of the goods in Classes 9 and 11, and some of the services in Class 37. The opposition is based on Swedish trade mark registration No 520 932 for the figurative mark . 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.

1. The goods and services

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

Class 9: Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; electrical supplies, namely electric cables, junction sleeves for electric cables, electric wires/cables, electrical power supplies, branch boxes, multi-outlet socket blocks, cable winders, cable joints, electrical switchers, sockets, plugs and other contacts, switches, power outlets, joint sockets, switchboxes, electrical resistances, electric relays; fuses.

Class 11: Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilation, water supplying and sanitary purposes; electric apparatus for household kitchens, included in the class; refrigerators, refrigerating/fresh cupboards, wine coolers, freezer cabinets, freezers, chest-type freezers; cookers, microwave ovens, gas ovens, electric furnaces, boiling rings; grill apparatus, deep frying apparatus; egg boilers; fondue heating apparatus; hoods for stove fans; sinks; electric coffee maker, coffee machines (electric); espresso coffee machines; toasters; sandwich toasters; waffle irons; electric kettles; heaters and heating apparatus; disinfectant apparatus, hot water tanks; laundry dryers, electric feet heaters; ice machines; water heaters; lamps and light bulbs; pocket lamps; air conditioners and apparatus, fans, air cleaners; humidifiers; dehumidifiers; refrigerating machines; ventilating units; precipitators; heat pumps; tumble driers; parts and attachments for all the aforesaid goods.

Class 37: Repair/maintenance services; installation services; all in relation to humidifiers and dehumidifiers, air heat pumps, air cleaners, ventilating heat exchangers, household and kitchen machines, apparatus and instruments.

The contested goods and services, after a partial refusal in opposition decision B 2 971 854, now finalised, are the following:

Class 9: Apparatus, instruments and cables for electricity.

Class 11: Drying installations; lighting.

Class 37: HVAC (heating, ventilation and air conditioning) installation, maintenance and repair; plumbing installation, maintenance and repair; providing information relating to the repair or maintenance of boilers; repair information; installation of power generating apparatus; installation and maintenance of solar thermal installations; freezing equipment installation and repair; repair or maintenance of gas water heaters.

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 ‘namely’, used in the opponent’s list of goods (in Class 9), to show the relationship of individual goods to a broader category, is exclusive and restricts the scope of protection only to the goods specifically listed.

Some of the contested goods and services are identical or similar to goods and services on which the opposition is based, for example the contested HVAC (heating, ventilation and air conditioning) installation, maintenance and repair include, as a broad category, the opponent’s repair/maintenance services; installation services; all in relation to air heat pumps, air cleaners, ventilating heat exchangers. Also the contested drying installations are identical to the opponent’s apparatus for drying. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above. The examination of the opposition will proceed as if all the contested goods and services were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 and services assumed to be identical are directed at the public at large and at business customers with specific professional knowledge or expertise.

The public’s degree of attentiveness may vary from average to high, depending on the price, sophistication, specialised nature, or terms and conditions of the goods and services purchased. By way of example, consumers will pay a high degree of attention during the purchase of installation of power generating apparatus.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is Sweden.

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 earlier mark consists of a figurative element that might give the overall impression of the letter ‘Q’. However, it cannot be discarded that part of the relevant public will simply perceive it as a figurative element. The element is not related to the goods and services under comparison and is therefore distinctive to a normal degree.

The opponent claims that the Swedish consumers, since they have a good knowledge of English, will mentally dissect the verbal element ‘QTEQ’ of the contested sign and perceive ‘TEQ’ as a reference to the English prefix ‘tech’, which is the abbreviation of ‘technology’, and that they will therefore consider it descriptive and distinctive to a low degree, if at all. The Opposition Division considers it highly unlikely that the Swedish public, even the professional consumers, could interpret the contested sign in such a way; too many mental steps have to be taken in such an analysis. Contrary to the opponent’s arguments, the element ‘TEQ’ is not the common spelling used for the abbreviation of the word ‘technology’ and will not immediately be perceived as such. Consumers tend to perceive the sign as a whole and do not proceed in analysing its various details. Consequently, the verbal element ‘QTEQ’ will be seen as a whole and not broken down into two elements. The verbal element of the contested sign is therefore considered meaningless and distinctive for the relevant public. Due to its similar stylisation, the figurative letter ‘Q’ on top of ‘QTEQ’ will be perceived as reinforcing the initial letter of the sign’s verbal element ‘QTEQ’.

In addition, in relation to the opponent’s claims that consumers will more easily pronounce the figurative element ‘Q’ than the verbal element ‘QTEQ’ of the contested sign and that more attention will be paid to the ‘Q’ because of its prominent position in the sign (the initial part), the Opposition Division points out that when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37). In this case and contrary to the opponent’s assertions, the consumers will refer to the contested sign as ‘QTEQ’, namely using the verbal part of the sign, and not by its figurative component that, as established above, merely reinforces its first letter.

The contested sign includes the registered trade mark symbol ®. This is an informative indication that the sign is purportedly registered and is not part of the trade mark as such. Consequently, this will not be taken into consideration for the purposes of comparison.

Although the figurative element ‘Q’ of the contested sign is slightly larger in size than the verbal element ‘QTEQ’, and contrary to the opponent’s statement, the Opposition Division considers that there is no element that dominates the visual impression created by the contested sign and that could be deemed clearly more eye catching than other elements.

Visually, the signs coincide in their letter ‘Q’. However, the features and stylisations used to depict the letter ‘Q’ are different. The signs also differ in the verbal element ‘QTEQ’ of the contested sign and in the colours of all the elements of the marks. Account must be taken of the length of the signs, which may influence the effect of the differences between them. The shorter a sign, the more easily the public is able to perceive all of its single elements. Therefore, small differences may frequently lead to a different overall impression in short verbal elements.

Therefore, taking into account the above considerations, the signs are visually similar to a low degree.

Aurally, the pronunciation of the signs coincides in their first letter ‘Q’, which is the only letter of the earlier right and the first letter of the string of four letters of the contested sign. The pronunciation differs in the sound of the letters ‛*TEQ’ of the contested sign, which has no counterpart in the earlier right.

The signs are aurally similar to a low degree.

Conceptually, although the signs as a whole do not have any meaning for the public in the relevant territory, they will both be associated with the letter ‘Q’. To that extent, the signs are conceptually similar to a low 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 opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation. Therefore 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 and services 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

According to the case-law of the Court of Justice, in determining the existence of likelihood of confusion, trade marks have to be compared by making an overall assessment of the visual, aural and conceptual similarities between the marks. The comparison ‘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, § 22). Likelihood of confusion must be assessed globally, taking into account all the circumstances of the case.

The goods and services are assumed to be identical and they target the public at large as well as professionals. The degree of attention will vary from average to high.

The signs are visually, aurally and conceptually similar to a low degree. The distinctiveness of the earlier mark is normal.

The only commonality between the signs is their depiction of a letter ‘Q’. However, the difference in the stylisation of this letter is so striking in both signs that, together with the additional verbal element ‘QTEQ’ of the contested sign, the overall impression given by the marks is different. Moreover, this different overall impression is reinforced by the varying colours of all the elements of the signs. The Opposition Division, considers that the consumers in the relevant territory, even those who pay a high degree of attention during the purchase, will be able to safely distinguish between them and will not assume that the goods and services offered/provided by the two parties originate from the same undertaking.

Considering all the above, even assuming an identity between the goods and services in question, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

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

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein. In the present case, the applicant did not appoint a professional representative within the meaning of Article 120 EUTMR and therefore did not incur representation costs.

The Opposition Division

María Clara IBÁÑEZ FIORILLO

Sylvie ALBRECHT

Manuela RUSEVA

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.