OPPOSITION No B 3 074 482

SAFT, 26 Quai Charles Pasqua, 92300 Levalllois-Perret, France (opponent), represented by Hirsch & Associés, 137 rue de l’Université, 75007 Paris, France (professional representative)

a g a i n s t

CMBlu Projekt AG, Industriestraße 19, 63755 Alzenau, Germany (applicant), represented by Graf Von Stosch Patentanwaltsgesellschaft mbH, Prinzregentenstr. 22, 80538 München, Germany (professional representative).

On 02/03/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 074 482 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 and services of European Union trade mark application No 17 961 812 for the word mark ‘EVION’. The opposition is based on international trade mark registration No 1 065 026 for the word mark ‘Evolion’ 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.

a) The goods and services

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

Class 9: Apparatus for storing electric power and for supplying electric power, namely electric cells, electric accumulators, electric storage batteries.

The contested goods and services are the following:

Class 1: Chemicals and chemical preparations; chemical compositions for energy storage; redox-active chemical compounds as electrolytes.

Class 9: Apparatus and devices for storing electric power and supplying electric power; mobile or stationary power or energy storing devices or apparatus; battery cells; electric storage batteries; electric accumulators; rechargeable batteries; electrochemical generator batteries; capacitors; electrochemical capacitors; super capacitors; electric power supply apparatus and cabinets; apparatus and cabinets for uninterruptible electric power supply; chargers; electric power supply machines and apparatus; electric power distribution or control machines and apparatus; stationary power supply machines and apparatus; portable condensers; portable power supply; emergency power supply machines and apparatus; electric power storage systems; battery charge devices for electric vehicle charging stations; movable electric power storage systems; apparatus and devices for transforming electric current, especially inverters, electric current and voltage regulators, frequency converters, voltage converters, electric current rectifiers and inverters; apparatus and devices for control, management, local or remote monitoring and safety of the aforesaid apparatus and devices, especially circuit breakers, measuring and thermal control apparatus, fire protection devices, overvoltage protection devices; computer software, especially software for the control, management and local or remote monitoring of the aforesaid apparatus and devices.

Class 40: Electricity generating; consultancy services relating to the generation of electrical power; generation of electrical power using carbon sequestration; generation of gas and electricity; generation of power; production of electrical power from renewable sources; production of energy by power plants; rental of batteries.

Class 42: Scientific or technical consultancy; laboratory services; energy-related or energy-storage related technological or scientific consultancy; research and development of batteries or other energy-storing devices; chemical research and analysis; testing of redox-active compounds; testing of energy storage devices; computer software consultancy; development of software.

Some of the contested goods and services are identical or similar to goods 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 the professional public with specific knowledge. The degree of attention is average to high due to the specialised nature of the goods, price and terms and conditions of the goods and services purchased.

c) The signs

Evolion	EVION
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).

The perception of the sign by the relevant public is decisive and a component exists within the sign wherever the relevant public perceives one. In this regard, 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).

In this case, the relevant public will recognise the letters ‘EV’ at the beginnings of both signs and perceive them as allusive to electronvolt, which in physics is a unit of energy. Although it is within the sign, it will allude to the characteristics of the goods and services in question and is, therefore, considered to have a weak distinctive character.

Considering the goods and services in question, it is also logical to consider that the relevant public will also perceive the letters ‘-ion’, at the end of both signs, as alluding to ‘electrically charged atoms’, as in physics. Therefore, although within the sign, this is considered weak as it alludes to the characteristics of the goods and services.

Irrespective of the allusions mentioned above, both word marks as a whole, ‘Evolion’ and ‘EVION’, are invented words, which do not exist as such in any of the languages of the relevant territory. Therefore, as the signs are considered to be fanciful, they are distinctive despite the allusions they create.

Visually, the signs coincide in the letters ‘EV’ and ‘ION’. They differ in the two letters ‘OL’ of the earlier sign (in third and fourth position), which have no counterparts in the contested sign. Therefore, the beginnings and ends of the signs are identical.

However, 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 differs noticeably, which is visually striking. Moreover, the identical parts have a weak distinctive character as they allude to known concepts in physics, lowering their impact in the comparison.

Consequently, the signs are visually similar to only 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 letters ‘EV’ and ‘ION’. It differs in the two letters ‘OL’ of the earlier sign, which are aurally noticeable as they change the length, number of syllables and intonation of that sign. Consequently, the earlier sign will be pronounced ‘e-vo-li-on’ or ‘e-vo-lion’ and the contested sign ‘e-vi-on’ or ‘e-vion’. The length and different number of syllables are perceptible and, therefore, the signs are aurally similar to a low degree.

Conceptually, neither of the signs has a meaning as a whole. Although the coinciding letters ‘EV’ and ‘ION’ in both signs will evoke a concept, it is not sufficient to establish any similarity, as these letters allude to concepts that are not distinctive for the relevant goods and services. 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.

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. The earlier trade mark is fanciful, as the word ‘Evolion’ does not exist as such. Although the relevant public will recognise ‘ev’ and ‘ion’ within the sign as two concepts connected to physics (related to electricity), these are grouped together with two other aleatory letters ‘ol’ to create a fanciful word. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of some weak elements 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).

The goods and services are assumed to be identical, the earlier mark has a normal degree of inherent distinctiveness and the relevant public will choose the relevant goods and services with an average to high degree of attention as they are highly technical and very specific.

Taking into account the aforementioned, the signs were compared and found to be visually and aurally similar to a low degree because their identical beginnings ‘EV’ allude to ‘electronvolt’ and, therefore, have a weak distinctive character.

Although consumers generally pay greater attention to the beginning of a word sign than to the end (25/03/2009, T‑109/07, Spa Therapy, EU:T:2009:81, § 30), this general rule, does not prevail in all cases and cannot, undermine the principle that an examination of the similarity of the marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a mark as a whole and does not examine its individual details (27/06/2012, T‑344/09, Cosmobelleza, EU:T:2012:324, § 52; 15/07/2015, R 3080/2014-2, KOPPARBRIGHT / ParBright, § 54).

Although the endings ‘ion’ are also identical, they allude to electrically charged atoms and, therefore, have a weak distinctive character for the relevant goods and services. Consequently, both identical parts of the signs, namely the beginnings and endings, are composed of letter combinations that have a weak distinctive character for electric power goods and services. This kind of coincidence has a reduced impact on the overall impressions created by the signs.

Taking into account the average to high level of attention of the relevant public, the coincidences that are allusive to non-distinctive concepts, the visual differences in the lengths of the signs and the aural differences due to their different rhythm, 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.

The opponent refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

The previous cases Hyaron v HYACLON (13/07/2012, B 1 899 429), carraro (fig) v CAMARO (28/09/2012, B 1 526 527), 07/03/2006, R 0242/2005‑1, CITADON/CIDEON and 19/11/2008, R 1704/2007‑1, NEOZIL / NEOSTIL, referred to by the opponent, are not relevant to the present proceedings. In the present case, there are two parts of the verbal elements that are clearly allusive to the characteristics of the goods and services in question and for this reason their impact in the comparison is minimised. As argued above with reference to the previous cases, it is not only the difference of the middle letters that is important between the signs, but the degree of distinctiveness and allusion created by the coinciding parts of the signs.

In view of the above, it follows that, even if the previous decisions submitted to the Opposition Division are to some extent factually similar to the present case, the outcome may not be the same.

Considering all the above, even assuming that the goods and services 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, 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

Marta Maria CHYLINSKA

Astrid Victoria WÄBER

Gonzalo BILBAO TEJADA

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.