OPPOSITION No B 3 056 981

Monari GmbH, Jöbkesweg 21, 48599 Gronau, Germany (opponent), represented by Klinger & Kollegen, Bavariaring 20, 80336 Munich, Germany (professional representative)

a g a i n s t

Yiwu XiaGe Trading Co. Ltd., F2 Operational Zone No.803, Longhai Rd., Chengxi St.

Yiwu, Zhejiang, People’s Republic of China (applicant), represented by Arpe patentes y marcas S.L., C/Proción 7, Edificio América II, Portal 2 - 1ºC, 28023 Madrid-Aravaca, Spain (professional representative).

On 23/08/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 056 981 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union word trade mark application No 17 889 222 ‘MoneRffi’. The opposition is based on German word trade mark registration No 302 014 024 214 ‘MONARI’. 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

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

Class 25: Clothing; footwear; headgear; men's, women's and children's clothing; trousers; jackets; costumes; coats; clothes; blouses; shirts; skirts; T-shirts; jerseys; sweatshirts; bathing suits; bikinis; swimwear; bathrobes; bathing caps; undergarments; underwear; lingerie; corsetry; tights; stockings; socks; belt; towels; gloves; suspenders; scarves; headbands; baby clothes; ties; men's, women's and children's shoes.

The contested goods are the following:

Class 18: Pelts; animal skins; goldbeaters' skin; leatherboard; kid; curried skins; butts [parts of hides]; leather, unworked or semi-worked; imitation leather; moleskin [imitation of leather]; animal skins, hides; fur; cattle skins; chamois leather, other than for cleaning purposes; purses; straps for soldiers' equipment; game bags [hunting accessories]; school bags; card cases [notecases]; hat boxes of leather; travelling trunks; leather laces; straps for skates; leather straps; leather twist; leather trimmings for furniture; sling bags for carrying infants; tool bags, empty; casings, of leather, for springs; backpacks; chin straps, of leather; handbag frames; pocket wallets; wheeled shopping bags; shopping bags; attaché cases; bags for climbers; bags for campers; beach bags; handbags; travelling bags; pouches, of leather, for packaging; briefcases; travelling sets [leatherware]; suitcases; suitcase handles; boxes of leather or leather board; chain mesh purses; cases of leather or leatherboard; trunks [luggage]; vanity cases, not fitted; leather shoulder belts; boxes of vulcanised fibre; haversacks; garment bags for travel; key cases; net bags for shopping; valises; furniture coverings of leather; bags for sports; slings for carrying infants; pouch baby carriers; bags; credit card cases [wallets]; business card cases; randsels [japanese school satchels]; luggage tags; labels of leather; grips for holding shopping bags; suitcases with wheels; reins for guiding children; cases of imitation leather; canvas bags; billfolds; leather cases; umbrella rings; umbrella or parasol ribs; umbrella sticks; frames for umbrellas or parasols; umbrellas; umbrella covers; parasols; umbrella handles; mountaineering sticks; alpenstocks; walking sticks; walking stick seats; walking cane handles; dog leashes; leather leads; collars for animals; clothing for pets.

Class 25: Smocks; working overalls; dress shields; shoulder wraps; camisoles; pants; bodices [lingerie]; underwear; dressing gowns; sweaters; pullovers; shirts; shirt fronts; short-sleeve shirts; clothing; furs [clothing]; detachable collars; tights; combinations [clothing]; anti-sweat underwear; corselets; suits; ready-made clothing; breeches for wear; trousers; outerclothing; ready-made linings [parts of clothing]; knitwear [clothing]; shirt yokes; gabardines [clothing]; corsets [underclothing]; vests; waistcoats; coats; waterproof clothing; jerseys [clothing]; skirts; liveries; singlets; cuffs; aprons [clothing]; pelisses; beach clothes; pockets for clothing; pyjamas; sleepwear; dresses; underpants; brassieres; topcoats; togas; uniforms; stuff jackets [clothing]; jackets [clothing]; paper clothing; bath robes; parkas; petticoats; slips [underclothing]; bodies [underclothing]; clothing of imitations of leather; clothing of leather; saris; tee-shirts; fishing vests; skorts; ponchos; sarongs; leggings [trousers]; jumper dresses; panties; sports singlets; kimonos; wind coats; down jackets; cheongsams (chinese gowns); cummerbunds; children's clothing; babies' pants [underwear]; layettes [clothing]; bibs, not of paper; motorists' clothing; wet suits for water-skiing; cyclists' clothing; bathing caps; swim trunks; bathing trunks; swimsuits; clothing for gymnastics; karate uniforms; judo uniforms; leotards; clothing for wear in wrestling games; rainwear; rain ponchos; masquerade costumes; costumes; theatrical costumes; costumes for use in role-playing games; folk costumes; dance clothing; non-slipping devices for footwear; footwear; bath sandals; bath slippers; boots; half-boots; tips for footwear; lace boots; boot uppers; inner soles; fittings of metal for footwear; footwear uppers; spats; esparto shoes or sandals; football boots; football shoes; overshoes; galoshes; gaiter straps; gymnastic shoes; slippers; beach shoes; wooden shoes; sandals; heelpieces for footwear; welts for footwear; soles for footwear; shoes; heels; sports shoes; studs for football boots; boots for sports; ski boots; valenki [felted boots]; ankle boots; running shoes; spiked running shoes; mountaineering shoes; rainshoes; insoles; climbing boots [mountaineering boots]; berets; caps [headwear]; skull caps; hoods [clothing]; hat frames [skeletons]; cap peaks; hats; headgear for wear; ear muffs [clothing]; top hats; headbands [clothing]; visors [headwear]; stockings; sweat-absorbent stockings; heelpieces for stockings; hosiery; socks; sock suspenders; garters; stocking suspenders; leg warmers; leggings [leg warmers]; footmuffs, not electrically heated; sweat-absorbent socks; pantyhose; ankle socks; gloves [clothing]; muffs [clothing]; mittens; ski gloves; boas [necklets]; neckerchiefs; neck scarfs [mufflers]; shawls; neckties; scarfs; fur stoles; pelerines; veils [clothing]; bandanas [neckerchiefs]; mantillas; turbans; ascots; pocket squares; bow ties; ties [clothing]; kerchiefs; suspenders; braces for clothing; belts [clothing]; girdles; money belts [clothing]; leather belts [clothing]; chasubles; sashes for wear; wimples; maniples; shower caps; sleep masks; albs; hairdressing capes; wedding dresses.

Some of the contested goods are identical or similar to the goods in Class 25 on which the opposition is, inter alia, based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those in Class 25 of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 assumed to be identical are directed at the public at large as well as at business customers in the field of the manufacturing of leather goods. 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 and the distinctiveness of the earlier mark

MONARI	MoneRffi
Earlier trade mark	Contested sign

The relevant territory is Germany.

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 signs in conflict are word marks. In this regard it must be noted that 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 (judgment of 22/05/2008, T-254/06, RadioCom, EU:T:2008:165, § 43).

The signs’ verbal elements do not convey any clear meaning from the perspective of the public in the relevant territory. Therefore, they are distinctive.

Consequently, since the earlier trade mark as a whole has no meaning for any of the relevant goods from the perspective of the public in the relevant territory – and given the lack of a claim for enhanced distinctiveness on the side of the opponent – the distinctiveness of the earlier mark must be seen as normal.

Visually, the signs coincide in the sequence of letters ‘MON*R*I’ whereas they differ in the letters ‘A’ in the earlier trade mark and ‘E’ / ‘FF’ in the contested application.

Therefore, the signs are visually similar to a below average degree.

Aurally, the signs coincide in the sound of the letters ‘MON*R*I’ whereas they differ in that of the letters ‘A’ in the earlier trade mark and ‘E’ / ‘FF’ in the contested application. In this regards it must be stressed that the signs have different intonations resulting, in particular, from the pronunciation of the letters ‘RFF’ of the contested sign, that will produce an unusual sound in German.

Therefore, the signs are similar to a low 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. 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.

In the instant case, the goods have been assumed to be identical. They target both the general and the professional public. The degree of attention may vary from average to high.

The signs have been found visually similar to a below average degree whereas aurally they are similar to a low degree. In this regard, it must be pointed out that in terms of recognition and recall, as argued by the opponent, the beginning of a trade mark tends to be more important, since the first part of a sign is generally the part that catches consumers’ attention and will be remembered more clearly than the rest of the sign. However, this does not alter the basic principle that the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details.

In the present case, the signs different letters ‘A’ in the earlier mark and ‘E’ / ‘FF’ in the contested application implicates notable differences both from the visual and aural perspective.

Taking all the above into account, it must be concluded that the assessed differences between the signs are capable of maintaining a sufficient distance between the overall impressions given by the signs. For these reasons, the Opposition Division does not find it plausible that the relevant consumer, who is considered reasonably well informed and reasonably observant and circumspect, might believe that the goods assumed to be identical come from the same undertaking or economically linked undertakings. This is valid, a fortiori, for the part of the public that will pay an high degree of attention in relation to some of the goods.

Considering all the above, even assuming that the goods are identical 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 (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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

Sandra IBAÑEZ

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.