OPPOSITION No B 3 046 897

Clarins Fragrance Group, 9, rue du Commandant Pilot, 92200 Neuilly-sur-Seine, France (opponent), represented by T Mark Conseils, 9 avenue Percier, 75008 Paris, France (professional representative)

a g a i n s t

Crystal Spring Consumer Divison Ltd, Unit 3/7 Avenger Close, Chandlers Ford Industrial Park, SO53 4DQ Eastleigh, United Kingdom (applicant), represented by Lawdit Solicitors, 29 Carlton Crescent, SO15 2EW Southampton, United Kingdom (professional representative).

On 14/06/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 046 897 is upheld for all the contested goods, namely

Class 3: Natural deodorants (roll on, spray, cream, crystal and stick); Natural antiperspirants (roll on, spray, cream, crystal and stick); Natural deodorants for the feet.

2. European Union trade mark application No 17 261 017 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 17 261 017, ‘Pure Aura’ (word mark), namely against all the contested goods in Class 3. The opposition is based on French trade mark registration No 3 044 141, ‘AURA’, and international trade mark registration No 966 547, ‘AURA’ (word mark), designating the European Union. 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.

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 international trade mark registration No 966 547, ‘AURA’, designating the European Union.

a) The goods

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

Class 3: Perfumes, eau de toilette, eau de parfum.

The contested goods are the following:

Class 3: Natural deodorants (roll on, spray, cream, crystal and stick); Natural antiperspirants (roll on, spray, cream, crystal and stick); Natural deodorants for the feet.

As a preliminary remark, it is noted that, in the context of opposition proceedings, the comparison of goods and services must be carried out taking into account the goods and services as they appear in the register. The particular circumstances in which the goods or services in question are provided and marketed cannot be taken into account in the prospective analysis of the likelihood of confusion between the marks as those circumstances may vary over time and depending on the wishes of the proprietors of the marks at issue (21/01/2016, T-846/14, SPOKeY, EU:T:2016:24, § 27 and the case-law cited therein; 13/04/2005, T-286/03, Right Guard Xtreme Sport, EU:T:2005:126, § 33; 21/05/2005, T-55/13, F1H20 / F1 et al., EU:T:2015:309, § 42 and the case-law cited therein; 15/03/2007, C-171/06 P, Quantum, EU:C:2007:171, § 59; see also 07/04/2016, T-613/14, Polycart A Whole Cart Full of Benefits / POLICAR, EU:T:2016:198, § 27 and the case-law cited therein). It follows that the arguments provided by the applicant about the actual characteristics of the goods concerned are irrelevant.

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

The contested natural deodorants (roll on, spray, cream, crystal and stick); natural antiperspirants (roll on, spray, cream, crystal and stick); natural deodorants for the feet are similar to the opponent’s perfumes. The goods under comparison have the same general purpose, namely to protect or enhance the odour or fragrance of the body. Additionally, they usually coincide in producers, relevant public and distribution channels.

b) Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods found to be similar are directed at the public at large.

Since these are everyday consumer goods the degree of attention is average (13/05/2016, T-62/15, MITOCHRON / mito (fig.) et al., EU:T:2016:304, § 22).

c) The signs

AURA	Pure Aura
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).

Both signs are word marks which are protected for the words themselves and not their specific depictions. Therefore, they contain no elements which are clearly more eye-catching than others and the difference in letter case is irrelevant to the comparison.

The word ‘AURA’, being the only element of the earlier mark and the first word of the contested sign, exists in various languages used in the relevant territory (e.g. English, French, Spanish, German, Polish, Italian). Although, as argued by the applicant, this word may refer to emanation such as aroma or odour, it is mainly associated with atmosphere, feeling or quality, surrounding or coming from a person, place or thing. The word may be perceived as alluding to the contents but is not directly descriptive of them. Therefore, it has a normal degree of distinctiveness (see decision of 22/04/2016, R 1702/2015-2 - ‘Deaura (fig.) /AURA' § 72).

However, the first word of the contested sign, ‘PURE’, is an English term meaning ‘unadulterated’, ‘uncontaminated’, ‘unmixed’, ‘undiluted’, ‘clear’, ‘perfect’, ‘genuine’, etc. Since this word contains obvious and direct information for the English-speaking consumers about the characteristics of the relevant contested goods that are natural deodorants and antiperspirants, namely that they are not mixed with any foreign materials and are clean and wholesome, it is non-distinctive for these consumers. The word ‘PURE’ with the same meaning also exists in French. Therefore, in relation to the relevant goods this word is also non-distinctive for the French-speaking consumers.

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). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Bearing the above considerations concerning the meaning of the word ‘PURE’ of the contested sign for a part of the public, the Opposition Division finds it appropriate to focus the comparison of the signs on the part of the English- and French-speaking public for which this word has a meaning described above and is non-distinctive.

The applicant argues that consumers generally tend to focus on the beginning of a sign. However, this cannot cast doubt on the principle that an examination of the similarity of trade marks must take into account the overall impression produced by them.

Furthermore, the applicant refers to the case-law where the Court has held that the same number of letters in two marks is not, as such, of any particular significance for the relevant public, even for a specialised public. Since the alphabet is made up of a limited number of letters, which, moreover, are not all used with the same frequency, it is inevitable that many words will have the same number of letters and even share some of them, but they cannot, for that reason alone, be regarded as visually similar. In addition, the public is not, in general, aware of the exact number of letters in a word mark and, consequently, will not notice, in the majority of cases, that two conflicting marks have the same number of letters (25/03/2009, T‑402/07, ARCOL / CAPOL, EU:T:2009:85, § 81-82; 04/03/2010, C‑193/09 P, ARCOL / CAPOL, EU:C:2010:121). In the present case, however, the coinciding letters form the word ‘AURA’ which is the only element of the earlier mark and the distinctive element of the contested sign. Furthermore, this word has a meaning for the public under analysis while neither of the two marks in the case referred to by the applicant had a meaning linking it to a particular concept and the coincidence concerned some letters and not entire words.

As far as the judgment of 13/05/2015, T-102/14, TPG POST / DP et al., EU:T:2015:279, referred to by the applicant is concerned, the coincidences with the earlier marks concerned the less distinctive element of the contested sign, unlike in the present case. The judgment of 21/05/2005, T-55/13, F1H20 / F1 et al., EU:T:2015:309, also referred to by the applicant, concerned signs with distinct meanings. Therefore, these judgments are not relevant for the present case.

Taking all the above into account, both visually and aurally, the signs are highly similar since the relevant English- and French-speaking consumers will rather notice the coincidence in the signs’ common and distinctive element ‘AURA’ than the non-distinctive differentiating element ‘PURE’ of the contested sign, which it will not perceive as an indication as to the origin of the goods. Therefore, not much weight can be given to the difference resulting from the additional element ‘PURE’ in the contested sign, despite its placement at the beginning of that sign.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Both signs refer to ‘AURA’. Although the first word of the contested sign, ‘PURE’ will evoke a concept, it does not serve to distinguish the marks from a conceptual point of view, as it will be understood as indicating that the goods offered under this mark are not mixed with any foreign materials and are clean and wholesome ‘AURA’ products. Therefore, the signs are highly similar conceptually.

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

d) Distinctiveness of the earlier 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.

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, 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 (eighth recital of the CTMR). 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).

Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular, similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (see, to that effect, 22/06/1999, C-342/97, ‘Lloyd Schuhfabrik’, EU:C:1999:323, § 20; 11/11/1997, C-251/95, ‘Sabèl’, EU:C:1997:528, § 24; 29/09/1998, C-39/97, ‘Canon’, EU:C:1998:442, § 17).

The contested goods are similar to those of the earlier mark and are directed at the public at large with an average level of attention. Furthermore, the earlier mark is considered to have a normal degree of distinctiveness and the marks are highly similar overall.

Bearing in mind all the above, it is concluded that the difference resulting from the additional non-distinctive element ‘PURE’ at the beginning of the contested sign, is not sufficient to counteract the similarity deriving from the common element ‘AURA’.

The applicant argues that its EUTM has gained substantial goodwill and reputation.

The right to an EUTM begins on the date when the EUTM is filed and not before, and from that date on the EUTM has to be examined with regard to opposition proceedings.

Therefore, when considering whether or not the EUTM falls under any of the relative grounds for refusal, events or facts that happened before the filing date of the EUTM are irrelevant because the rights of the opponent, insofar as they predate the EUTM, are earlier than the applicant’s EUTM.

Consequently, there is a likelihood of confusion on the part of the English and French-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 well founded on the basis of the opponent’s international trade mark registration No 966 547, ‘AURA’, designating the European Union. It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier international trade mark registration No 966 547, ‘AURA’, designating the European Union 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 right invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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

Michele M. BENEDETTI - ALOISI

Justyna GBYL

Keeva DOHERTY

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.