OPPOSITION No B 3 060 239

Royal Distribution T D N, 1, rue du Calvaire, 59810 Lesquin, France (opponent), represented by Cabinet Jurisexpert, 104 rue Esquermoise, 59000 Lille, France (professional representative)

a g a i n s t

JT International S.A., Rue Kazem-Radjavi 8, 1202 Geneva, Switzerland (applicant), represented by Matthew Michael Sammon, Calls Wharf 2 The Calls, LS2 7JU Leeds, United Kingdom (professional representative).

On 16/08/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 060 239 is upheld for all the contested goods, namely:

Class 9: Electronic chargers, batteries.

2. European Union trade mark application No 17 880 423 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 17 880 423 , namely against all the goods in Class 9. The opposition is based on French trade mark registration No 4 231 675 ‘Logicscale’ (word mark). The opponent invoked Article 8(1)(b) EUTMR.

Preliminary remark

The applicant argued that the opponent is not the owner of the earlier mark on which the opposition is based. In support of its argument, the applicant submitted two extracts from the French company register, according to which the company, Royal Distribution T D N, had the company No 449 471 465 and the company Royal Distribution had the company No 829 577 758.

In the notice of opposition, the opponent accepted that the necessary information regarding its earlier mark is imported from the relevant official online database, accessible through TMview. According to the information provided on the French Industrial Property Office online database, the owner of the French trade mark No 4 231 675 is Royal Distribution, SAS with a company No 449 471 465 (referred to as ‘SIREN’). The same company number is indicated in the document submitted by the applicant, No 449 471 465, as attributed to the company Royal Distribution T D N. Given the company number (referred to as ‘SIREN’) is a unique number attributed to the particular legal entity and together with requirements for identification of the owner in national trade mark registrations is a subject of national laws, the Opposition Division considers that the fact that the owner of the national trade mark, Royal Distribution, SAS, and the opponent, Royal Distribution T D N, have the same company number, No 449 471 465, is sufficient to prove that it is the same legal entity. Consequently, the opponent is entitled to file an opposition based on French trade mark registration No 4 231 675. Therefore, the applicant’s argument in this regard must be set aside as unfounded.

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

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

Class 9: Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; electric batteries.

The contested goods are the following:

Class 9: Electronic chargers, batteries.

The contested electronic chargers, batteries are identical to the opponent’s apparatus and instruments for accumulating electricity; electric batteries, because the opponent’s goods include, are included in, or overlap with, the contested goods.

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 identical are directed at the public at large. The degree of attention is considered average.

c) The signs

Logicscale
Earlier trade mark	Contested sign

The relevant territory is France.

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 contested sign is a figurative trade mark containing the verbal element ‘logic’, followed by a dot, and verbal element ‘LQD’ below it. The verbal element ‘logic’ is depicted in slightly stylised white lower-case typeface against a circular background, which is placed on a rectangular background that has some kind of pattern. The verbal element ‘LQD’ is depicted in standard black typeface, placed on a rectangular background. The circle and the rectangle are basic geometric shapes, the pattern is purely decorative in nature and all these elements merely serve as a background for the verbal elements. The dot following the verbal element ‘logic’ is a simple punctuation mark and will not be seen as an indication of the commercial origin of the goods in question. Therefore, the relevant public will not attribute much trade mark significance to these elements.

The verbal element ‘logic’ is an English word, meaning, inter alia, ‘a method of reasoning that involves a series of statements, each of which must be true if the statement before it is true’ (information extracted from Collins Dictionary on 08/07/2019 at https://www.collinsdictionary.com/dictionary/english/logic). As such, the word ‘logic’ has no meaning for the relevant public. However, the equivalent French word is ‘logique’, and the relevant public will read and pronounce the verbal element ‘logic’ identically to the equivalent French word ‘logique’ and, consequently, will perceive the abovementioned meaning. The verbal element ‘logic’ is not descriptive, allusive or otherwise weak in relation to the relevant goods and its distinctiveness is average.

The verbal element ‘LQD’ has no meaning in relation to the relevant goods and therefore it is distinctive.

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

The earlier trade mark is a word mark, ‘Logicscale’. According to case-law, a word mark is a mark consisting entirely of letters, of words or of associations of words, written in printed characters in normal font, without any specific graphic element (20/04/2005, T‑211/03, Faber (fig.) / NABER, EU:T:2005:135, § 33; 13/02/2007, T‑353/04, Curon, EU:T:2007:47, § 74). 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 (22/05/2008, T‑254/06, RadioCom, EU:T:2008:165, § 43). Therefore, it is irrelevant whether the word mark is depicted in upper- or lower-case letters.

The word ‘logicscale’ has no meaning in French. Consequently, it is meaningless for the relevant public and is distinctive to a normal degree. However, a significant part of the relevant public will perceive the word ‘Logic’ in the earlier mark since they will read and pronounce the component ‘Logic’ identically to the equivalent French word, ‘logique’. The Court has held that, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a word sign, they will break it down into elements which, for them, suggest a specific meaning or which resemble words known to them (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57). Applying the above and taking into account that the word ‘Logic’ resembles the French word ‘logique’, especially due to its pronunciation, a significant part of the relevant public will split the earlier mark into the components ‘Logic’ and ‘scale’. However, the latter lacks a conceptual meaning for the relevant public and is distinctive. The component ‘Logic’ is not related to the relevant goods and is also distinctive.

The Opposition Division finds it appropriate to focus the comparison of the signs on the significant part of the public that will perceive the component ‘Logic’ in the earlier mark, ‘Logicscale’.

Visually, the signs coincide in the string of letters ‘logic’, which appears at the beginning of the earlier mark and forms an independent verbal element in the contested sign. The signs differ in the component ‘scale’ of the earlier trade mark and in the verbal element ‘LQD’ of the contested sign, which have no counterparts in the contested sign and in the earlier mark, respectively. They also differ in the figurative elements of the contested sign, the dot, circular and rectangular backgrounds and pattern of the contested sign, which do not have much trade mark significance.

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. Although the differing component ‘scale’ in the earlier mark and the verbal element ‘LQD’ in the contested sign create some perceptible difference, contrary to the applicant’s arguments, they do not outweigh the fact that the verbal element of the contested sign, ‘logic’, is fully incorporated in the beginning of the earlier mark, which, as explained above, first catches the consumers’ attention. Taking into account the aforesaid and that the differing figurative elements of the contested sign (the dot, circular and rectangular backgrounds and pattern) do not have much trade mark significance, the signs are visually similar to a lower than average degree.

Aurally, the pronunciation of the signs coincides in the sound of the string of letters ‘logic’, present identically in both signs. The pronunciation differs in the sounds of the component ‘scale’ of the earlier mark and the verbal element ‘LQD’ of the contested sign.

The independent verbal element, ‘logic’, in the contested sign, which will be pronounced first when referring to it verbally, will be pronounced identically to the first component of the earlier trade mark and will clearly be audible in both signs. Although the second component, ‘scale’, of the earlier mark and the verbal element ‘LQD’ of the contested sign will create some aural differences, contrary to the applicant’s assertions, they will not outweigh similarities created by the signs’ identical verbal element, ‘logic’. Therefore, the signs are considered aurally similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the relevant public will associate both signs with a similar meaning on account of the coinciding verbal element ‘logic’, while the differing component ‘scale’ and verbal element ‘LQD’ do not convey any particular meaning, the signs are conceptually similar at least to an average 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 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

According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically linked undertakings, constitutes a likelihood of confusion (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 29). The likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 16).

The goods are identical. They target the public at large who displays an average degree of attentiveness. The signs are visually similar to a lower than average degree, aurally similar to an average degree and conceptually similar at least to an average degree for a significant part of the relevant public. The distinctiveness of the earlier trade mark is average.

The verbal element ‘logic’, which reproduces the first component of the earlier trade mark, plays an independent role in the contested sign. As explained above, the beginning of the sign is of particular importance since it first catches the consumers’ attention. Furthermore, the first component of the earlier trade mark and the first verbal element of the contested sign will be pronounced identically to the French word ‘logique’, which is known to the average French-speaking consumer. Due to the identical pronunciation, the relevant public will perceive the same meaning in both marks and consequently will make a connection between them.

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 covered are from the same or economically linked undertakings. Bearing in mind the relevant goods and the similarities between the signs explained above, consumers may think that the owner of the earlier mark has expanded its product line with another version of the mark. Therefore, it cannot be excluded that consumers will make a connection between the signs and assume that the goods in question are from the same or economically linked undertakings. Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

Furthermore, 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). Taking into account that the relevant goods are identical and applying the aforementioned principle of interdependence, the lesser degree of similarity between the signs is offset by the identity between the goods.

The applicant refers to previous national decision to support its arguments, namely to the opposition decision of the national French trade mark office in relation to French trade mark application No 154 231 675 ‘LOGICSCALE’. However, it must be noted that decisions of national courts and national offices regarding conflicts between identical or similar trade marks at national level do not have a binding effect on the Office since the European Union trade mark regime is an autonomous system, which applies independently of any national system (13/09/2010, T‑292/08, Often, EU:T:2010:399).

Even though previous national decisions are not binding, their reasoning and outcome should be duly considered, particularly when the decision has been taken in the Member State that is relevant to the proceedings.

In the present case, the previous case referred to by the applicant is not relevant to the present proceedings. The national French trade mark office decision referred to by the applicant assessed neither the conceptual similarity between the signs nor the distinctiveness of the signs’ elements. Furthermore, the goods were dissimilar. Therefore, the applicant’s argument must be set aside.

Considering all the above, there is a likelihood of confusion on the part of the public that perceives the word ‘Logic’ in the earlier trade mark, ‘Logiscale’. A likelihood of confusion for only part of the relevant public is sufficient to reject the contested application and there is no need to analyse the remaining part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s French trade mark registration No 4 231 675 ‘Logicscale’ (word mark). It follows that the contested trade mark must be rejected for all the contested goods.

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, 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

Rasa BARAKAUSKIENE

Birute SATAITE-GONZALEZ

Rosario GURRIERI

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.