OPPOSITION No B 3 016 519

Krys Group Services, Les Hédauves, Avenue de Paris, 78550, Bazainville, France (opponent), represented by Ernest Gutmann-Yves Plasseraud S.A.S., 3, rue Auber, 75009, Paris, France (professional representative)

a g a i n s t

Shenzhen Connect-Me Electronic Corp., Ltd, 3rd Building 3, Hualian Industrial District, Huaning Road, Dalang, Longhua, Shenzhen, Guangdong, People’s Republic of China (applicant), represented by Eugene Johann Pienaar, 5 Cranwell Grove, Lightwater, Surrey, GU18 5YD, United Kingdom (professional representative).

On 19/11/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 016 519 is upheld for all the contested goods, namely:

Class 9: Virtual reality glasses.

2. European Union trade mark application No 17 201 807 is rejected for all the contested goods. It may proceed for the remaining goods.

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

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 17 201 807 ‘KRTIZ’, namely against some of the goods in Class 9. The opposition is based on European Union trade mark registration No 3 543 841 ‘KRYS’. 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: Optical apparatus and instruments used in industry and science; optical goods; microscopes; spectacles (optics); sunglasses; spectacle frames; lenses for eyeglasses; telescopes.

Class 44: Opticians’ services.

The contested goods are the following:

Class 9: Virtual reality glasses.

The contested virtual reality glasses and more generally virtual reality headsets and VR technology are being used more and more in various industries. Some of the early adopters are the gaming and entertainment industries, but such technology and the apparatus and instruments involved are also increasingly being adopted by other more traditional industries to perform very diverse operations. Those industries are, for instance, architecture, tourism, education, healthcare, aerospace and manufacturing.

Since the contested virtual reality glasses are included in the broad category of the opponent’s optical apparatus and instruments used in industry and science, they are identical.

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 may be directed at the public at large and also 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

KRYS	KRTIZ
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).

Neither of the signs has any meaning for the relevant public in the relevant territory.

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 their first two letters, ‘KR***’. Their only vowels are ‘Y’ in the earlier mark and ‘I’ in the contested sign. The marks differ in their vowels, ‘Y’ versus ‘I’; in the additional letter ‘T’ in the contested sign, following the coinciding letters ‘KR’; and in their final letters, ‘Z’ in the contested sign and ‘S’ in the earlier mark, placed immediately after the vowel.

Therefore, the signs are visually similar to a low 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 ‛KR’, present identically in both signs. In some parts of the relevant territory, such as Spain, Portugal and Italy, the pronunciation would also coincide in the sound of the vowels, ‘Y’ and ‘I’. The pronunciation differs in the sound of the letter ‛T’ preceding the vowel in the contested sign, which has no counterpart in the earlier mark, and in the sound of the signs’ last letters, ‘Z’ and ‘S’, which will be pronounced quite similarly in part of the relevant territory.

Both signs are relatively short and, irrespective of the different pronunciation rules in different parts of the relevant territory, both consist of a single syllable. As stated above, their pronunciation will be quite similar in those countries in which ‘Y’ is pronounced exactly the same as ‘I’.

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

Conceptually, neither of the signs has a meaning for the public in the relevant territory. 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.

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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

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.

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).

The signs are aurally similar to an average degree and visually similar to a low degree. The earlier mark has a normal degree of distinctiveness.

The contested goods are identical and target both the general public and a specialised public. The degree of attention may vary from average to high.

In spite of the differences in the letters of the signs, there is a likelihood of confusion, because those differences are not enough to safely outweigh the visual and aural commonalities.

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, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 3 543 841. It follows that the contested trade mark must be rejected for all the contested goods.

Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its extensive use and reputation as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

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

Ana MUÑÍZ RODRÍGUEZ

Fabián GARCIA QUINTO

Loreto URRACA LUQUE

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.