OPPOSITION No B 3 023 150

Zhejiang Geely Holding Group Co., Ltd., No. 1760 JiangLing Road, Bin-Jiang District, 310051 Hangzhou City (Zhejiang Province), People’s Republic of China (opponent), represented by Cabinet Guiu - Jurispatent, 10, rue Paul Thénard, 21000 Dijon, France (professional representative)

a g a i n s t

Dongguan Yixin Clothing Co., Ltd., Floor 2, No.476, Liansheng North Road, Humen Town, Dongguan City, People’s Republic of China (applicant), represented by Al & Partners S.r.l., Via C. Colombo ang. Via Appiani (Corte del Cotone), 20831 Seregno (MB), Italy (professional representative).

On 07/09/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 023 150 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 305 814 for the figurative mark , namely against some of the goods and services in Classes 25 and 35. The opposition is based on European Union trade mark registration No 16 616 311 for the word mark ‘LYNK&CO’. 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.

a) The goods and services

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

Class 9: Computers; computer software; computer hardware; microprocessors, memory boards, monitors, displays, keyboards; CD-ROMs, and digital versatile discs; random access memory, read only memory; electronic tablet computers; electronic units for the wireless receipt, storage and/or transmission of data and messages, and electronic devices that enable the user to keep track of or manage personal information; electronic communication equipment and instruments; telecommunications apparatus and instruments; telephone-based information retrieval software and hardware; global positioning system (GPS) devices; mobile telephones, video phones; voice recognition apparatus; wireless communication devices for voice, data or image transmission; radio transmitters and receivers; car audio apparatus; computer software for creating, authoring, distributing, downloading, transmitting, receiving, playing, editing, extracting, encoding, decoding, displaying, storing and organizing text, graphics, images, audio, video, and multimedia content, data synchronization software, voice recognition software; voice-enabled software applications; computer software for accessing, browsing and searching online databases; computer software for the redirection of messages, computer equipment for use with all of the aforesaid goods.

Class 25: Clothings; shoes; headwear.

Class 35: Retail services of vehicles, spare parts and accessories for vehicles, clothings, shoes, headwear and toys.

Class 38: Provision of data communications services via a access code; provision of internet chat rooms and internet forums; providing access to internet forums; providing access to computer networks and internet-based notice boards.

Class 42: Design of cars, design of land vehicle parts, design of moulds, design of vehicle transporters, design of power train and drive line components; advisory services in the field of product development, technical advisory services relating to design engineering; computer software design and development; formation of vehicle body structures and the vehicles’ exterior design; scientific and technological services and research and design relating thereto; industrial analysis and research services; computer programming; design and development of computer hardware; design and development of computer software; design, development and maintenance of proprietary computer software in the field of natural language, speech, speaker, language, voice recognition, and voice-print recognition; website creation, design and maintenance services; website hosting services; application service provider (ASP) services featuring hosting computer software applications of others; application service provider (ASP) services featuring software for creating, authoring, distributing, downloading, transmitting, receiving, playing, editing, extracting, encoding, decoding, displaying, storing and organizing text, graphics, images, audio, video, and multimedia content, and electronic publications; application service provider (ASP) services featuring software for use in connection with voice recognition software and voice-enabled software applications; providing online non-downloadable software; creating digital imaging services; design of vehicle structures; information, advisory and consultancy services relating to all the aforesaid.

The contested goods and services are the following:

Class 25: Clothing; trousers; boots; caps [headwear]; hosiery; gloves [clothing]; smocks; sports shoes; layettes [clothing]; underwear; uniforms; tee-shirts; boxer shorts; teddies [underclothing]; sports jerseys.

Class 35: Systemization of information into computer databases; compilation of information into computer databases; commercial information and advice for consumers [consumer advice shop].

Some of the contested goods and services are identical to goods and services on which the opposition is based. 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.

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 and services assumed to be identical 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.

c) The signs

LYNK&CO
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).

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

The earlier mark is the word ‘LYNK&CO’. Although it is composed of one verbal element, the relevant consumers, when perceiving a verbal sign, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58). Therefore, the Opposition Division is of the opinion that the relevant public is likely to dissect the earlier mark into two components, ‘LYNK’ and ‘&CO’.

The verbal element ‘&CO’ of the earlier mark is often used, in business names, as an abbreviation of the element ‘and company’ in order to refer to the partner or partners not named in the title of the firm. That abbreviation is used internationally, so that it will easily be understood by any European consumer irrespective of their knowledge of English. As regards its use in the mark in question, it must be observed that it occupies the second position in this sign. Therefore, this sign may be considered to amount to a business name since European consumers are accustomed to interpret names ending with ‘&CO’ in this way (03/12/2014, T‑272/13, M&Co., EU:T:2014:1020, § 40). Moreover, the fact that a sign or an element of which the sign consists is frequently used as a symbol in the course of trade must be regarded as an indication of the weak distinctive character of that sign or of the element of which the sign consists (03/12/2014, T‑272/13, M&Co., EU:T:2014:1020, § 41). Against this background, it is considered that this verbal element is weak because it does not have any other purpose than being used after the name of a business to indicate other members of the company. The consumer will not pay as much attention to this weak element as to the other, more distinctive, element of the earlier mark, namely its initial verbal component ‘LYNK’, which is distinctive to a normal degree and plays an independent distinctive role therein. Consequently, the impact of the weak element ‘&CO’ of the earlier mark is very limited when assessing the likelihood of confusion between the signs at issue.

Moreover, 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 that the mark might possess (22/05/2008, T‑254/06, RadioCom, EU:T:2008:165, § 43). Therefore, it is generally irrelevant whether word marks are in upper- or lower-case letters. The earlier mark does not depart from the usual way of writing as it is written entirely in upper-case letters, which is a fairly common way of depicting words. In addition, word marks have no elements that could be considered more dominant (eye-catching) than other elements.

The contested sign is a figurative mark comprised of the verbal element ‘LY&CO’, written in black upper-case letters. The relatively standard black typeface of the contested sign will be perceived as a purely decorative graphic resource, as it is usual in the market sector for a sign’s verbal elements to be slightly stylised. In addition, 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 than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37).

The relevant public will break the verbal elements of the contested sign down into the elements ‘LY’ and ‘&CO’, for the reasons explained above. The initial verbal component ‘LY’ has a meaning in Danish (‘shelter’), which is not descriptive, allusive or otherwise weak in relation to the goods and services at issue. However, it has no meaning for the rest of the relevant public and is, therefore, distinctive. The verbal element ‘&CO’ is weak, as mentioned above.

It follows that the most distinctive elements of the signs, ‘LYNK’ and ‘LY’, are meaningless and distinctive to a normal degree.

The contested sign has no elements that could be considered clearly more dominant than other elements.

The length of the signs 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, in short words, small differences may frequently lead to a different overall impression. In contrast, the public is less aware of differences between long signs.

Visually, the signs coincide in the letters ‘LY’ and the verbal element ‘&CO’. They differ in the letters ‘NK’ of the earlier mark (in third and fourth position), which have no counterparts in the contested sign. They also differ in the slight stylisation of the contested sign, even if it has less impact on the consumers’ attention.

It must be borne in mind that the length of the signs also has to be taken into account when comparing them. In this case, the length of the most distinctive elements of the marks differs noticeably (four versus two letters), which is a visually quite striking difference, considering the shortness of the contested sign’s element ‘LY’. Moreover, the identical element ‘&CO’ has a rather weak distinctive character, as explained above, lowering its impact in the comparison.

In addition, although in general the initial part of signs may be liable to attract the consumer’s attention more than the following parts, this cannot be applied to the present case as the distinctive verbal elements of the signs, ‘LYNK’ and ‘LY’, will both be perceived at once. In this context, the fact that one of them is twice the length of the other and is formed by two additional letters ‘NK’ will not go unnoticed.

Consequently, the signs are visually similar only to a low degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the marks coincides in the letters ‘LY’, the symbol ‘&’, which will be pronounced as ‘and’ (according to the language in use), and the letters ‘CO’, present identically in both signs. The pronunciation differs in the letters ‘NK’ of the earlier mark, which are aurally noticeable as they change the length and structure of that sign. In addition, the figurative element of the contested sign is not subject to a phonetic assessment.

Taking into account that the marks are rather short and the additional letters ‘NK’ placed in the middle of the earlier mark introduces a strong aural difference and significantly influences the overall aural impression, as well as bearing in mind the weak distinctive character of the verbal element ‘&CO’, 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, the verbal element ‘&CO’, included in both signs, will be associated with the meaning explained above. However, the impact of this overlap is conceptually limited due to the weak distinctiveness of this expression. The attention of the relevant public will be attracted by the additional fanciful and distinctive verbal elements, namely ‘LYNK’ and ‘LY’, which have no meanings (except for the Danish-speaking public who will associate the verbal element ‘LY’ with a clear concept, albeit distinctive to a normal degree) and clearly distinguish the marks. 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.

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 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 weak element ‘&CO’ in the mark, as stated above in section c) of this decision.

e) 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, § 23).

A likelihood of confusion (including a likelihood of association) exists if there is a risk that the public might believe that the goods and 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.

The earlier mark has a normal degree of inherent distinctiveness. The goods and services are assumed to be identical and they target the professional public and the public at large. The public’s degree of attentiveness may vary from average to high. 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).

The signs are visually, aurally and conceptually similar only to a low degree, due to their different lengths, structures and the weakness of the coinciding verbal element ‘&CO’, which results in a different overall impression. Although the signs coincide in some letters, comparing the signs in overall terms, there clearly are sufficient differences for the public to distinguish them.

Even though the common elements ‘&CO’, present identically in both signs, evoke an identical connotation, they have a weak distinctive character for the relevant public and are secondary within the overall impression given by the signs. Bearing in mind the limited distinctive character of the common elements ‘&CO’, it can only be concluded that the more distinctive parts of the signs on which the relevant consumers will finally focus their attention are ‘LYNK’ and ‘LY’. These elements are easily distinguishable, since they are composed of one word of four letters versus two letters. Due to the shortness of the element ‘LY’, the differences in relation to the element ‘LYNK’, which doubles it in size, are striking and immediately noticeable, even to a consumer proceeding with an average attentiveness.

The most distinctive elements of the signs, ‘LYNK’ and ‘LY’, have no meaning for the relevant public (except for the Danish-speaking public, as explained above). Consequently, they are inherently distinctive. Due to the structure of the signs, they will be perceived as identifying two different companies, named ‘LYNK’ and ‘LY’. Moreover, these elements are clearly perceivable at the beginning of the signs and are sufficient to exclude any likelihood of confusion between them.

In essence, the fact that the signs coincide in the letter sequence ‘LY’ is not particularly relevant from a consumer’s perspective, because these letters only form an independent element in the contested sign, the meaningless term ‘LY’. In the earlier mark, they are just a sequence of letters from a longer and also meaningless element ‘LYNK’. Therefore, the Opposition Division finds that the consumers would not confuse a company named ‘LYNK’ with a company named ‘LY’, even in relation to identical goods and services. The fact that the signs also coincide in a meaningful and standard abbreviation internationally used to describe a company is not particularly relevant, for the previously noted reasons, and cannot justify a different conclusion.

Therefore, taking into account the average to high level of attention of the relevant public, the visual and aural differences in the lengths and structures of the signs, the Opposition Division considers that there is no likelihood of confusion on the part of the public. The differences are sufficient for the relevant public to safely distinguish between the signs.

This absence of a likelihood of confusion applies equally to the Danish-speaking part of the public who will understand the meaning of the word ‘LY’. This is because, as a result of the above findings, those parts of the public will perceive the signs as being even less similar.

Therefore, the Opposition Division considers that the relevant public will not believe that the goods and services assumed to be identical originate from the same company or from economically linked undertakings.

Considering all the above, 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, 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.

The Opposition Division

Gueorgui IVANOV

Patricia LOPEZ FERNANDEZ DE CORRES

Dorothée SCHLIEPHAKE

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.