OPPOSITION Nо B 3 105 306

 

3c Retail A/s, Østre Stationsvej 1 - 5, 5000 Odense C., Denmark (opponent), represented by Zacco Denmark A/s, Arne Jacobsens Allé 15, 2300 Copenhagen S, Denmark (professional representative) 

 

a g a i n s t

 

Danila Belokons, Mirdzas Kempes Iela 4-26, 1014 Riga, Latvia and Arturs Burbo, Strelnieku Prospekts 78, 2008 Jurmala, Latvia (applicants), both represented by Rūta Olmane, Vijciema 8-5, 1006 Riga,  Latvia (professional representative).

On 03/12/2020, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 105 306 is rejected in its entirety.

 

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

 

REASONS

 

The opponent filed an opposition against all the services of European Union trade mark application No 18 107 408  (figurative mark). The opposition is based on the Danish trade mark registration No VR 2017 01 785 and the Swedish trade mark registration No 543 509 both for the word mark ‘SPARGO’. 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 services

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

 

Danish trade mark registration No VR 2017 01 785

Class 36: Banking services, kapital investment, providing credit and loans, financial services, financial advice, financial evaluations, wealth management, monetary affairs, insurance services, real estate brokerage

Swedish trade mark registration No 543 509

Class 36: Bank services, capital investment, providing credit, providing loans, financial services, financial consultancy, financial evaluations (insurance, bank, real estate); wealth management; monetary affairs; financial management and capital management; monetary affairs; insurance, real estate brokerage, real estate affairs.

The contested services are the following:

Class 36: Finance services; financial trading services; issuance of credit cards; investment fund transfer and transaction services; financial management; financial evaluation; issuance of tokens of value; processing of debit card payments; online home banking; providing of financial information via websites; providing financial analysis; savings bank services; financial clearing, financial clearing houses; charitable fund raising; charitable fund raising; electronic funds transfer; currency trading and exchange; research services relating to finance; financing services; mortgage banking; stock brokerage services; safe deposit services.

Some of the contested services are identical or similar to services on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the services listed above. The examination of the opposition will proceed as if all the contested 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 services assumed to be identical are directed at the public at large and at business customers with specific professional knowledge or expertise in, for instance, the financial, insurance and real estate sectors.

Even though the general public is reasonably well informed and reasonably observant and circumspect, since such services are specialised services that may have important financial consequences for their users, the consumers’ level of attention would be rather high when choosing them (03/02/2011, R 719/2010‑1, f@ir Credit (fig.) / FERCREDIT, § 15; 19/09/2012, T‑220/11, F@ir Credit, EU:T:2012:444, dismissed; 14/11/2013, C‑524/12 P, F@ir Credit, EU:C:2013:874, dismissed).

c) The signs

 

SPARGO
Earlier trade marks	Contested sign

 

 

 

The relevant territories are Denmark and Sweden.

 

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 earlier sign is a word mark composed of the letters ‘SPARGO’. The word does not have any meaning as a whole for the relevant public and it is therefore distinctive.

The contested sign is a figurative mark containing the element ‘SPARQ’ written in blue fairly standard typeface, except for the letter ‘A’ which is stylized, as shown above. This word does not have a meaning as a whole for the relevant public and it is also distinctive.

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 first four letters of each sign form the verbal element ‘SPAR-’. `SPAR´, both in Danish and in Swedish, refers to the idea of “saving money”. Therefore, this common verbal component is considered of very limited distinctiveness when it concerns services in Class 36 since it alludes to their nature or characteristics.

Visually, the signs coincide in the four first letters ‘SPAR-’. The signs differ in the remaining letters and in the typeface, colour and, particularly, in the stylization of the letter ‘A’ of the contested sign. Although consumers generally tend to focus on the beginning of a sign when they encounter a trade mark, because the public reads from left to right, and so the part placed at the left of the sign (the initial part) is the one that first catches the attention of the reader, the importance of this is conditioned by the degree to which this part is distinctive or not. Therefore, given that the only coinciding part of the sign, although placed at the beginning, is of very limited distinctiveness for the services at issue, the signs are visually similar to a low degree.

   

Aurally, the pronunciation of the signs coincides in the letters ‘SPAR’, present identically at the beginning of both signs. However, the pronunciation differs in the sound of the letters ‛GO’ of the earlier marks and the letter ‘Q’ of the contested sign. Since the signs overlap in an element of very limited distinctiveness, the signs are aurally similar to a low degree.

 

Conceptually, the marks have the allusion to the above mentioned concept, although not distinctive. They 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 in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal as a whole despite the incorporation of an element of limited distinctiveness, as commented in the previous section.

e) Global assessment, other arguments and conclusion

 

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).

The contested services were assumed to be identical to the opponent’s services.

The signs under comparison are visually, aurally and conceptually similar to only a low degree, on account of the fact that the only coincidence lies in the word ‘SPAR’ and the distinctive character of this element is limited. In addition, ‘SPAR’ cannot be considered as the most dominant component in both signs since the earlier sign is a word mark and the contested sign does not bear any distinct graphical separation that would lead to identifying different elements within. However, these only similarities between the signs stem from an element that is of very limited distinctiveness. Therefore, the similarities are not sufficient to lead to a likelihood of confusion on the part of the public.

The Opponent claimed that the degree of attention of the relevant public must be considered low to normal, especially since the concerned services are offered online and therefore, easy to access for the consumer. Considering that it is established, in fact, that the objective characteristics of the services in question require the average consumer to choose these only after a particularly careful examination, it is important, in right, to take into account that such a circumstance may be of such a nature as to reduce the likelihood of confusion between the marks relating to such services at the crucial moment when the choice is made between those services and those marks (see in that line, 21/03/2012, T-63/09, Swift GTi, EU:T:2012:137, § 112). Therefore, the Opposition Division considers that the level of attention of the relevant public must be considered to be high, as has been concluded in section b) of this decision.

The Opponent stated that the earlier sign could be used in a different colour as the one registered. Indeed, the Opponent mentioned that its use of the sign in blue could lead greater similarities between the sign on which the opposition is based and the contested sign.

In that regard, the fact that a mark is registered in colour or, on the contrary, does not designate any specific colour cannot be regarded as a wholly negligible element in the eyes of consumers (Case C‑252/12 Specsavers International Healthcare and Others [2013] ECR, paragraph 37; Case T‑522/10 Hell Energy Magyarország v OHIM — Hansa Mineralbrunnen (HELL), not published in the ECR, § 49 and § 50). It must also be borne in mind that the comparison must be made between the signs as they were registered or as they appear in the application for registration (Case T‑29/04 Castellblanch v OHIM — Champagne Roederer (CRISTAL CASTELLBLANCH) [2005] ECR II‑5309, paragraph 57) ((09/04/2014), T-623/11, Pico Food v OHIM - Sobieraj (Milanówek cream fudge), ECLI:EU:T:2014:199, § 38). Therefore, the use of the earlier sign in a blue colour cannot be taken into account in the assessment of the likelihood of confusion with the contested mark since the mark was registered as a word mark with no graphical specification.

Following the above, the Opposition Division does not find it plausible to conclude that the relevant consumer, who, for the purposes of the assessment, is considered to be reasonably well informed and reasonably observant and circumspect, might believe that the services, assumed to be identical, come from the same undertaking or economically linked undertakings, , especially taking into account the higher degree of attention that consumers will display in relation to the services concerned.

Considering all the above, even assuming that the 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 applicants 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 applicants are the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

 

 

 

 

The Opposition Division

 

 

Helen Louise MOSBACK

Inés GARCIA LLEDO

Manuela RUSEVA

 

 

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.