OPPOSITION No B 2 997 982

Auer Packaging GmbH, Technologiepark Am Kroit 25/27, 83123 Amerang, Germany (opponent), represented by Jürgen Oberdorfer, Isartorplatz 5, 80331, Munich, Germany (professional representative)

a g a i n s t

Tristan Auer, 8 rue André Antoine, 75018, Paris, France (applicant), represented by Jacob Avocats, 161 avenue Victor Hugo, 75116, Paris, France (professional representative).

On 19/05/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 997 982 is partially upheld, namely for the following contested goods and services:

Class 11: Lighting apparatus; lamps; luminaires; lighting and lighting reflectors.

Class 20: Furniture and furnishings, ladders and movable steps, not of metal; works of art of wood, wax, plaster or plastic, cushions, armchairs, mattresses, mirrors, clothes hangers, shelves, seats, plate racks, picture frames, chests of drawers, packaging containers of plastic, bedding, except linen, boxes of wood or plastic.

Class 42: Consultancy relating to selection of curtaining [interior design]; architectural design for interior decoration; consultancy relating to selection of furnishing fabrics [interior design]; commercial art design; design of ornamental layouts; design of office space; design of building interiors; commercial interior design; office furniture design; design of models; pattern design; new product design; design of restaurants; design of curtains; design of blinds; design of ornamental structures; design and layout services for interior spaces; interior decoration consultation; professional consultancy relating to the design of interior accommodation; visual design; design of interior decor; design services relating to interior decorating for homes; design services relating to interior decorating for offices; textile design services for motor vehicle trim; office layout design services; shop interior design; design services for furniture; design services relating to furnishing fabrics; interior and exterior design services; interior design services for boutiques; styling [industrial design]; advisory services relating to interior design; design services; design of carpets.

2. European Union trade mark application No 17 187 311 is rejected for all the above goods and services. It may proceed for the remaining goods.

3. Each party bears its own costs.

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As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain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 some of the goods and services of European Union trade mark application No 17 187 311.

The opposition is based on:

1. European Union trade mark registration No 6 953 591 ‘AUER’;

2. European Union trade mark registration No 16 139 867 ;

3. European Union trade mark registration No 7 002 652 ‘AUER-PACKAGING’;

4. European Union trade mark registration No 16 152 019 .

The opponent invoked Article 8(1)(b) EUTMR in relation to all the trade marks on which the opposition is based and also Article 8(1)(a) EUTMR as far European Union trade mark registration No 6 953 591 ‘AUER’ is concerned.

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:

European Union trade mark registration No 6 953 591

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

Class 21: Household or kitchen utensils and containers (not of precious metal or coated therewith); combs and sponges; brushes (except paint brushes); brush-making materials; articles for cleaning purposes.

Class 42: Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software.

European Union trade mark registration No 16 139 867

Class 11: Water supply apparatus, installations for treating, storing and/or soaking away water, in particular rainwater, storm water and wastewater; inlet and inspection shafts therefor; the aforesaid goods in particular being underground structures, including being underground infiltration trenches; structural elements for the aforesaid structures, in particular of plastic and/or in the form of stackable plastic cages (infiltration trench elements).

Class 19: Building materials (non-metallic); non-metallic rigid pipes for building, drain pipes, branch pipes (non-metallic); buildings (not of metal), in particular underground soakaway structures (infiltration trench structures) for processing rainwater, storm water or other wastewater; structural elements for the aforesaid structures, in particular of plastic, and in particular in the form of stackable plastic cages (infiltration trench elements); manholes, not of metal; drainpipes (not of metal); penstock pipes, not of metal, geotextiles; non metallic trellis, water-pipe valves (not of metal or plastic), water pipes, not of metal, baseplates for constructing underground infiltration trench structures (not of metal, in particular of plastic), cover plates for constructing underground infiltration trench structures (not of metal, in particular of plastic).

Class 20: Packaging and carrier boxes of plastic; pallets of plastic for storage and transport purposes; casks of plastic, in particular rain butts; waste containers of plastic for household and industrial purposes; collapsible and/or folding boxes of plastic; collapsible and/or folding containers of plastic; pallet containers of plastic; shelf and open-fronted boxes of plastic; stackable containers and stackable boxes of plastic; containers for transporting and storing liquids; ranges of inserts for ranges of boxes and ranges of crates of plastic; lids and closures of plastic for containers, boxes and receptacles; soakaway pits and infiltration trenches of plastic; see-through storage boxes; shelf and material throughflow boxes; tilting boxes; containers for drawers; all the aforesaid goods including of electrically conductive plastic; bottle racks.

Class 21: Plastic bins [dustbins]; refuse containers; dustbins; cups and tins of plastic; containers for flowers; container sets; repotting containers for plants; window-boxes; buckets for industrial use; buckets for household use; plastic buckets; plastic bottles; bottle cradles.

Class 42: Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software.

European Union trade mark registration No 7 002 652

Class 6: Door scrapers.

Class 12: Transport trolleys, namely rubbish trolleys, storage trolleys, file trolleys, multi-purpose trolleys, workshop trolleys, computer trolleys, container trolleys, endoscopy trolleys, ergometry trolleys, rack trolleys, tiered trolleys, eurobox trolleys, wardrobe trolleys, gas bottle trolleys, luggage trolleys, equipment trolleys, cage trolleys, laboratory trolleys, lacquer drying trolleys, long material trolleys, mop trolleys, emergency trolleys, parcel trolleys, panel trolleys, platform trolleys, mail trolleys, projector trolleys, sack trolleys, glass pane transport trolleys, scissor-type fork lift trolleys, scissor-type high lift trolleys, scissor-type lift trolleys, flatbed trolleys, rail trolleys, hose trolleys, cabinet trolleys, drawer trolleys, bulk goods trolleys, heavy load trolleys, heavy load trailer trolleys, side shackle flatbed trolleys, service trolleys, serving trolleys, silo trolleys, chip trolleys, steel band dispenser trolleys, steel tube trolleys, single-sided flatbed trolleys, spreading trolleys, system trolleys, laundry trolleys, workshop trolleys, workpiece trolleys, tool trolleys, changing trolleys, cradle lift trolleys, bale trolleys, side trolleys, supply trolleys, sheet steel case trolleys, children’s trolleys, office trolleys, double-sided flatbed trolleys, wire cage trolleys, swivel axis trolleys, triple-walled trolleys, printer trolleys, trolleys, cask transport trolleys, sprung floor trolleys, bottle trolleys, hanging file trolleys, hand-drawn flatbed trolleys, hand-drawn plate trolleys, hotel trolleys, elevating platform trolleys, lift trolleys, box-type trolleys, dump trolleys, folding trolleys, clamping trolleys, combination trolleys, goods trolleys, kitchen trolleys, magazine trolleys, media trolleys, multi-purpose trolleys, trolleys for presentation paper, assembly aid trolleys, assembly trolleys, multimedia trolleys, file trolleys, rack trolleys, cleaning trolleys, wheeled trolleys, stake trolleys, plate trolleys, table cover trolleys, table trolleys, support-arm rack trolleys, support-arm trolleys, base trolleys, fourwalled trolleys, preparation trolleys, bicycle trolleys, in particular mainly of plastic, in particular of plastic.

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics, in particular packaging and transport crates of plastic, pallets of plastic for storage and transport purposes, barrels and casks of plastic, in particular rain barrels and rain butts, lockable and non-lockable, waste containers of plastic for household and industrial purposes.

Class 21: Household, kitchen utensils and containers; combs and sponges; brushes (other than for painting); brushmaking materials; articles for cleaning purposes; steel wool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes.

Class 27: Rugs; carpets and carpet mats of plastic; transport mats, in particular padded and wrapping mats for transporting objects, anti-slip mats, in particular of plastic.

Class 42: Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software, in particular development engineering in the field of packaging and means of transport development, in particular packaging and means of transport of plastic.

European Union trade mark registration No 16 152 019

Class 11: Water supply apparatus, installations for treating, storing and/or soaking away water, in particular rainwater, storm water and wastewater; Inlet and inspection shafts therefor.

Class 19: Building materials (non-metallic); non-metallic rigid pipes for building, drain pipes, branch pipes (non-metallic); buildings (not of metal), in particular underground soakaway structures (infiltration trench structures) for processing rainwater, storm water or other wastewater; structural elements for the aforesaid structures, in particular of plastic, and in particular in the form of stackable plastic cages (infiltration trench elements); manholes, not of metal; drainpipes (not of metal); penstock pipes, not of metal, geotextiles; non-metallic trellis, water-pipe valves (not of metal or plastic), water pipes, not of metal, baseplates for constructing underground infiltration trench structures (not of metal, in particular of plastic), cover plates for constructing underground infiltration trench structures (not of metal, in particular of plastic); absorbing wells and infiltration trenches, and elements for infiltration trenches of plastic; in particular the aforesaid goods in the form of underground structures, in particular in the form of underground infiltration trench structures.

Class 20: Packaging and carrier boxes of plastic; pallets of plastic for storage and transport purposes; casks of plastic, in particular rain butts; waste containers of plastic for household and industrial purposes; collapsible and/or folding boxes of plastic; collapsible and/or folding containers of plastic; pallet containers of plastic; shelf and open-fronted boxes of plastic; stackable containers and stackable boxes of plastic; containers for transporting and storing liquids; ranges of inserts for ranges of boxes and ranges of crates of plastic; lids and closures of plastic for containers, boxes and receptacles; see-through storage boxes; shelf and material through flow boxes; tilting boxes; containers for drawers; all the aforesaid goods including of electrically conductive plastic; bottle racks.

Class 21: Plastic bins [dustbins]; refuse containers; dustbins; cups and tins of plastic; containers for flowers; container sets; repotting containers for plants; window-boxes; buckets for industrial use; buckets for household use; plastic buckets; plastic bottles; bottle cradles.

Class 42: Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software.

The contested goods and services are the following:

Class 11: Lighting apparatus; lamps; luminaires; lighting and lighting reflectors.

Class 18: Luggage, travel luggage, carry-on bags, skins (animal-), trunks and travelling bags, purses, credit card cases [wallets], casual bags, wallets.

Class 20: Furniture and furnishings, ladders and movable steps, not of metal; works of art of wood, wax, plaster or plastic, cushions, armchairs, mattresses, mirrors, clothes hangers, shelves, seats, plate racks, picture frames, chests of drawers, packaging containers of plastic, bedding, except linen, boxes of wood or plastic.

Class 42: Consultancy relating to selection of curtaining [interior design]; architectural design for interior decoration; consultancy relating to selection of furnishing fabrics [interior design]; commercial art design; design of ornamental layouts; design of office space; design of building interiors; commercial interior design; office furniture design; design of models; pattern design; new product design; design of restaurants; design of curtains; design of blinds; design of ornamental structures; design and layout services for interior spaces; interior decoration consultation; professional consultancy relating to the design of interior accommodation; visual design; design of interior decor; design services relating to interior decorating for homes; design services relating to interior decorating for offices; textile design services for motor vehicle trim; office layout design services; shop interior design; design services for furniture; design services relating to furnishing fabrics; interior and exterior design services; interior design services for boutiques; styling [industrial design]; advisory services relating to interior design; design services; design of carpets.

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 ‘in particular’, 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).

However, the term ‘namely’, used in the opponent’s list of goods and services 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.

Moreover, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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 11

The contested lighting apparatus; lamps; luminaires; lighting and lighting reflectors comprise a wide range of products intended to produce or reflect light, such as vehicle lamps, light bulbs and light reflectors. The opponent’s rail trolleys in Class 12 of European Union trade mark registration No 7 002 652 are vehicles used for moving heavy items (e.g. building materials) along railways. As such, the contested goods are complementary to the opponent’s goods, as the former are essential parts of the latter. Moreover, these goods usually have the same relevant public and distribution channels. Therefore, these goods are considered similar.

Contested goods in Class 18

The contested luggage, travel luggage, carry-on bags, skins (animal-), trunks and travelling bags, purses, credit card cases [wallets], casual bags, wallets consist of animal skins and different kinds of goods intended to carry personal belongings. These goods do not have anything in common with the goods and services of the earlier trade marks in Classes 6, 11, 12, 19, 20, 21, 27 and 42. In addition to having clearly different purposes (in particular, the contested goods are skins and leather items for carrying personal belongings, whereas the opponent’s goods and services are scrapers, water apparatus, transport trolleys, furniture, household goods, rugs and scientific services), these goods and services are neither complementary nor in competition. They also differ in their distribution channels and are provided by different specialised companies. Therefore, they are dissimilar.

Contested goods in Class 20

Furniture; mirrors; picture frames are identically contained in the contested and the opponent’s lists of goods (including synonyms), including that of the opponent’s European Union trade mark registration No 7 002 652.

The contested armchairs, clothes hangers, shelves, seats, plate racks, chests of drawers are included in the broad category of the opponent’s furniture (of, inter alia, the opponent’s European Union trade mark registration No 7 002 652). Therefore, they are identical.

The contested packaging containers of plastic, boxes of wood or plastic are containers and boxes made of wood and plastic that are used for packaging goods. The opponent’s specification includes goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics (European Union trade mark registration No 7 002 652). This wording does not provide a clear indication of the goods that are covered, as it simply states what the goods are made of and not what the goods are. This wording covers a wide range of goods that may have very different characteristics and/or purposes, may require very different levels of technical capabilities and know-how to be produced and/or used, and could target different consumers and be sold through different sales channels and therefore could relate to different market sectors. However, as already stated, the term ‘in particular’, used in the opponent’s list of goods, indicates that the specific goods 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). In the present case, the opponent’s vague wording contains some examples, such as packaging of plastic, that expressly identify the goods covered, thus enabling the Opposition Division to carry out a comparison.

Given the above, the contested packaging containers of plastic, boxes of plastic overlap with the opponent’s packaging of plastic. Therefore, they are considered identical.

In addition, the contested boxes of wood are highly similar to the opponent’s packaging of plastic, as they have the same purpose. They usually have the same producer, relevant public, distribution channels and method of use. Furthermore, they are in competition.

The contested furnishings are household articles that can be used for decorating a house. They are similar to the opponent’s furniture of, inter alia, European Union trade mark registration No 7 002 652, as they have the same purpose, namely to decorate or furnish a room or building, and they target the same public. Moreover, these goods are often sold in the same specialised outlets, such as interior design stores.

The contested cushions, mattresses bedding, except linen are articles used on a bed to make it comfortable to sleep on. These goods are similar to the opponent’s furniture of, inter alia, European Union trade mark registration No 7 002 652, as they have the same purpose. They usually have the same relevant public. Furthermore, they are in competition and/or are complementary.

The contested ladders and movable steps, not of metal are pieces of equipment used for climbing up something or down from something and nowadays are also often manufactured and sold as decorative items to furnish one’s home. Therefore, these goods can have the same distribution channels, target the same end users and have the same producers as the opponent’s furniture (of, inter alia, European Union trade mark registration No 7 002 652). Therefore, these goods are similar.

The contested works of art of wood, wax, plaster or plastic are pieces of fine art made of wax, plaster or plastic. These goods are similar to a low degree to the opponent’s goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics (of, inter alia, European Union trade mark registration No 7 002 652). In particular, these goods have the same nature and purpose in the broadest sense, as they can be goods made of wood, wax, plaster or plastic.

Contested services in Class 42

The contested services are interior design and related services. These goods are at least similar to the opponent’s scientific and technological services and research and design relating thereto; industrial analysis and research services (of, inter alia, European Union trade mark registration No 7 002 652). In particular, these services are carried out by technical experts, who produce reports and undertake projects after process analysis, and are based on a number of techniques. Therefore, these services have the same nature and purpose. Furthermore, they are complementary.

Since all the goods and services found to be identical or similar to various degrees are covered, inter alia, by European Union trade mark registration No 7 002 652, the assessment of the likelihood of confusion will continue on the basis of this earlier mark.

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 found to be identical and similar to various degrees are directed at the public at large as well as business customers with specific professional knowledge or expertise. The degree of attention may vary from average to high, depending on the price, specialised nature, or terms and conditions of the goods and services purchased.

3. The signs

Auer-packaging
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.

The element ‘packaging’ of the earlier trade mark is meaningful in certain territories, for example in those countries where English is understood. As this meaning affects the distinctiveness of this element in relation to some of the relevant goods, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the relevant public, which is the part of the public most likely to be confused regarding the origins of the goods and services in question.

For this part of the public, the element ‘packaging’ of the earlier sign will be associated with a ‘box or wrapping in which a product is offered for sale and the design thereof’ (https://www.collinsdictionary.com/dictionary/english/packaging). Bearing in mind that some of the relevant goods can be used for packaging (i.e. goods (not included in other classes) of wood, cork, reed, cane, wicker, and substitutes for all these materials, or of plastics, in particular, packaging of plastic; packaging containers of plastic; boxes of wood or plastic), this element is non-distinctive for these goods. Conversely, this element is distinctive in relation to all of the remaining relevant goods and services, since its meaning is not directly related to them in a clear way that could impair its distinctiveness.

The signs’ coinciding verbal element, ‘AUER’, has no meaning for the relevant public and is therefore distinctive.

Neither of the signs has any element that could be considered clearly more dominant than other elements.

In the assessment of the visual and aural similarity of the marks in question it has to be borne in mind that 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. In addition, the contested sign is composed of a distinctive verbal element and a less relevant figurative element, consisting of a square with a light-grey outline that is merely decorative in nature.

The earlier sign is a word mark. The protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics which that mark might possess. Therefore, it is irrelevant whether the word mark is depicted in lower or upper case letters (22/05/2008, T‑254/06, RadioCom, EU:T:2008:165, § 43).

Visually, the signs coincide in the verbal element ‘AUER’. However, they differ in the verbal element ‘-packaging’ of the earlier trade mark and in the stylisation of the contested mark.

Therefore, taking into account the abovementioned principles and assertions, the marks are visually similar to an average degree in relation to the goods and services for which the element ‘packaging’ is distinctive and are highly similar for the goods in relation to which this element is non-distinctive.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘AUER’, present identically in both signs. However, the pronunciation of the signs differs in the sound of the word ‘packaging’ of the earlier mark, which has no counterpart in the contested mark.

Therefore, taking into account the abovementioned principles and assertions, the marks are aurally similar to an average degree in relation to the goods and services for which the element ‘packaging’ is distinctive and highly similar for the goods in relation to which this element is non-distinctive.

Conceptually, although the public in the relevant territory will perceive the meaning of the earlier mark’s element ‘packaging’, 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 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 despite the presence of a non-distinctive element in the mark, for some of the goods, as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends, inter alia, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified. It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

For the purposes of that global appreciation, the average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. However, 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.

Although the average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect, 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. Even consumers with 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).

In the present case, the goods and services are partly identical, partly similar to various degrees and partly dissimilar. They target both the general public and professionals, whose degree of attention may vary from average to high.

The conflicting marks are visually and aurally similar to at least an average degree. In particular, the earlier trade mark’s first verbal element, ‘AUER’, is reproduced in its entirety within the contested sign as a distinctive element.

Taking all of the above into account, the Opposition Division considers that the differences between the signs — which lie in the earlier sign’s second verbal element ‘-packaging’ (although this element is non-distinctive in relation to some of the goods) and in the stylisation of the contested sign — are clearly not sufficient to outweigh the visual and aural similarities between them. Consequently, the relevant public, when encountering the signs in relation to identical, highly similar, at least similar and similar goods and services, without being able to compare the marks at the time of the purchase, are likely to think that they come from the same undertaking or from economically linked undertakings. In particular, it is highly conceivable that the relevant consumer will perceive the contested mark as a mere variation of the earlier mark ‘auer-packaging’, configured in a different way to designate goods and services other than those in the field of packaging. In such circumstances, it cannot be safely excluded that the relevant public may regard the relevant goods and services as belonging, admittedly, to two distinct ranges of products but as coming, none the less, from the same manufacturer (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

As regards the goods that are similar to only a low degree, it must be kept in mind that evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17). In the present case, the visual and aural similarities between the signs are clearly sufficient to offset the low degree of similarity between some of the goods and services. Therefore, the opposition is successful and the contested trade mark must also be rejected in relation to the goods that are similar to only a low degree.

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. 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.

Therefore, the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration No 7 002 652. It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical and similar to various degrees to those of the earlier trade mark.

The rest of the contested goods and services are dissimilar (and this is true in relation to all of the earlier marks, as seen above). 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.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR and directed against the remaining goods and services because the signs and the goods and services are obviously not identical.

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 goods 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

María Belén IBARRA DE DIEGO

Aldo BLASI

Andrea VALISA

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.