OPPOSITION No B 2 696 279

Norma Lebensmittelfilialbetrieb Stiftung & Co. KG, Heisterstr. 4, 90441 Nürnberg, Germany (opponent), represented by Betten & Resch Patent- Und Rechtsanwälte Partgmbb, Maximiliansplatz 14, 80333 München, Germany (professional representative)

a g a i n s t

2f Powertech Sa, Via Zona Pascolet, 6537 Grono, Switzerland (applicant), represented by Pga S.p.A., Via Mascheroni 31, 20145 Milano,  Italy (professional representative).

On 10/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 696 279 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 14 735 328. The opposition is based on European Union trade mark registrations No 8 802 902, No 12 323 127 and No 12 352 035. 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 and services

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

EUTM No 8 802 902

Class 7:         Machines, machine tools and motorised apparatus (included in class 7), for household, kitchen, garden and DIY purposes, including electric tools and electric household utensils (included in class 7); All the aforesaid goods except welding apparatus and welding accessories.

Class 9:         Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments, including protractors, rules, spirit levels; Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; Apparatus for recording, transmission or reproduction of sound or images; Magnetic data carriers, recording discs; Automatic vending machines and mechanisms for coin-operated apparatus; Cash registers, calculating machines, data processing equipment and computers; Fire-extinguishing apparatus; Safety clothing, gloves, headgear, goggles, helmets and shoes, knee pads; Spectacles, in particular reading glasses and sunglasses, including cases; Electric irons; Mouse pads; All the aforesaid goods except welding apparatus and welding accessories.

Class 11:         Lighting apparatus, in particular electric lights, lamps and lighting devices, and parts for all the aforesaid goods, included in class 11; apparatus for heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes.

EUTM No 12 323 127

Class 7:         Electric household and kitchen utensils (included in class 7), in particular vacuum cleaners, vacuum cleaner bags, electric cleaning machines and apparatus, cleaning appliances utilising steam, robots (machines), electric pastry presses, electric mini-choppers and electric meat grinders, electric can openers, electric cutters and shears, electric kitchen machines, electric blenders for household purposes, electric beaters, electric sewing machines, electric flour mills, coffee grinders, other than hand-operated, milk frothers, potato-peeling machines, electric juicers, electric fruit presses, bread cutting machines, electric multi-purpose sharpeners, electric ice crushers, electric film-sealing devices; Dishwashers; Parts for the aforesaid goods, included in class 7.

Class 8:         Flat irons.

Class 9:         Apparatus for recording, transmission or reproduction of sound or images; Weighing and measuring apparatus, including kitchen scales; Smoke detectors; Parts for the aforesaid goods, included in class 9.

Class 11:         Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating and water supply; Coffee machines, automatic coffee machines, espresso machines, hot dog machines, bread baking machines, bread-making machines, electric cooking utensils, microwave ovens, electric kettles, electric steamers, electric fondue pots, electric raclette apparatus, electric yoghurt makers, electric cooking rings, egg boilers, electric rice cookers, grills, toasters, electric waffle irons, ovens, mini-ovens, electric chocolate fountains, electric deep-fat fryers, electric multi pans, electric apparatus for making doughnuts, omelettes, muffins and sandwiches, electric popcorn making machines, electric hot plates, electrical ice-cream makers, water filtering apparatus, fans, air-conditioning apparatus, ionisation apparatus for the treatment of air and air purifiers, air humidifiers; Parts for the aforesaid goods, included in class 11.

EUTM No 12 352 035

Class 4:         Fuels, candles, in particular lamp oil containing insect repellents, candles containing insect repellents.

Class 5:         Pharmaceutical and veterinary preparations; Sanitary preparations for medical purposes; Disinfectants; Preparations for destroying vermin; Fungicides, herbicides; Insect attractants, preparations for destroying insects, insect repellents, insecticides.

Class 6:         Common metals and their alloys; Metal building materials; Transportable buildings of metal; Ironmongery, small items of metal hardware; Goods of common metal not included in other classes, in particular insect screens of metal for doors, insect screens of metal for windows.

Class 7:         Machines, agricultural implements other than hand operated, in particular spraying apparatus (machines) for horticulture for spraying insecticides, spraying apparatus (machines) for domestic purposes for spraying insecticides, insecticide sprayers (hand-held tools, electric).

Class 8:         Hand tools and implements (hand-operated), in particular spraying apparatus for horticulture for spraying insecticides (hand-operated tools), spraying apparatus for domestic purposes for spraying insecticides (hand-operated tools), hand-operated atomisers for insecticides.

Class 11:        Lighting apparatus, luminous tubes for apparatus for destroying insects; all the aforementioned goods only in connection with insecticides.

Class 19:        Building materials (non-metallic); Non-metallic transportable buildings; Insect screens, not of metal, in particular for windows and doors.

Class 21:        Household or kitchen utensils and containers; Insect traps, including electric ones; Electrical devices for attracting and killing insects.

The contested goods and services are the following:

Class 7:         Pumps [machines]; Pumps [parts of machines, engines or motors]; Cavitation pumps; Compressed air pumps; Centrifugal pumps; Pumps for heating installations; Pumps for producing hot water; Pumps for producing hot water for industrial use; Vacuum pumps [machines]; Machines for generating electricity; Current generators; Driving motors other than for land vehicles; Centrifugal machines; Steam engines; Compressors [machines]; Control mechanisms for machines, engines or motors; Compressors for refrigerators; Steam condensers [parts of machines]; Condensing installations; Dynamos; Wind turbines; Machine tools; Motors and engines (except for land vehicles); Machine coupling and transmission components (except for land vehicles); Agricultural implements other than hand-operated; Incubators for eggs; Automatic vending machines; all the before said goods not for use in the fields of welding, soldering, brazing and/or cutting.

Class 11:         Lighting apparatus; Lighting installations; Lighting apparatus; LED lighting devices; Lamps and light bulbs; Electric lamps; Street lamps; Chandeliers; Vehicle headlamps; Tubes (luminous -) for lighting; Refrigerating apparatus; Refrigerators; Deep freezing apparatus; Freezers; Freezers for liquids; Freezers for liquid foodstuffs; Refrigerating appliances and installations; Apparatus for generating hot water; Heating boilers; Evaporators; Drying installations; Apparatus for heating; Cold storage rooms; Air conditioning apparatus and installations; Water distribution installations; Disinfectant apparatus; Germicidal lamps for purifying air; Heating apparatus and installations; Apparatus for steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes.

Class 42:         Scientific and technological services and research and design relating thereto; Industrial analysis and research services; Design and development of computer hardware and software; Engineering services; Engineering services; Technological research in the energy, heating, refrigerating and lighting sectors; Design and development of machines for producing energy and heating, of lighting apparatus and refrigerators and freezers; Consultancy in the field of energy-saving; all the before said services not for use in the fields of welding, soldering, brazing and/or cutting.

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.

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 and services assumed to be identical are directed at the public at large and at customers with specific professional knowledge or expertise.

The degree of attention ranges from average to high, depending on the specific technical nature of the goods or service.

3. The signs

1. EUTM No 8 802 902

EUTM No 12 323 127  EUTM No 12 352 035
Earlier trade marks	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.

As regards the marks, it is noted that although they are composed of verbal elements, 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).

The element POWER in the marks is understood in part of the EU, as an English word referring to the energy, esp. electricity, or device or fuel that powers a machine which  provides the energy that the machine needs in order to work, or a strength (Collins English Dictionary). The word is thus highly allusive, if not descriptive to all the goods/services using power or electricity for functioning or are related to it and to the ones to which it gives special strength.  This element is therefore regarded as weak for the English –speaking public that understands it.

The elements TEC in the earlier marks and TECH in the contested mark are understood in part of the EU as a customary abbreviation of the adjective 'tecnológico' or 'tecnologico' [technological] or ‘technological’ (see decision of 28 May 2014, R 424/2011-1, ‘BODYTECH / BODI-TEK et al.’ and decisions of the Boards of Appeal cited therein). These  elements over time become customary and widely recognised as an abbreviation with the meaning given above, and have very close and similar counterparts in all EU languages, either as TEC (Spanish), TECHNO (English for example) or TEKNO (Estonian), referring to technology or something technological in all EU languages. The words are thus highly allusive, if not descriptive to all the goods/services having technological properties or incorporating technological advances or being technological services.  These elements, in all signs, are therefore regarded as weak and attributed less attention.

In the earlier mark a), the element LIGHT is an English term referring to something such as an electric lamp which produces light, or brightness that lets you see things. Light comes from sources such as lamps, and fire. It is also an adjective, referring to something that is light, meaning that it does not weigh very much, or weighs less than one would expect it to (Collins English Dictionary). Bearing in mind that the some of the relevant goods are machines, machine tools among others, and also lighting apparatus, this element is weak for these goods for the public that perceives its meaning.

In the earlier mark b), the element KITCHEN is an English term referring to a room that is used for cooking. The device elements depicting a power cord and the cook’s hat are self-explanatory. Bearing in mind that some of the relevant goods are various types of electrical household appliances, including kitchen appliances, these elements are weak for all the goods.

In the earlier mark c), the device element depicting a sign which contains an image of an insect superimposed on a circle, and crossed over (typical depiction of ‘no insects’ sign) is considered descriptive of all goods, which are various types of insect repellents or anti-insect products.

However, for the other part of the public, such as the non-English speaking public the word elements POWER, LIGHT and KITCHEN and have no meaning and are distinctive.

In the contested mark, the mark as a whole has no meaning. The elements POWER and TECH, if perceived, are described above. The letters 2F have no meaning.

The marks have no elements that could be considered clearly more dominant than other elements.

The Opposition Division will first examine the opposition in relation to the part of the public for which the above mentioned word elements POWER, LIGHT and KITCHEN in the marks have no meaning and have a normal degree of distinctiveness.

It is noted that the 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.

Visually, the signs coincide in that they all contain a letter sequence forming a word POWER. However, this element is placed in the beginning, as initial part in the earlier marks, while in the contested mark, it is placed in the middle of the mark. The marks also contain a letter sequence TEC towards their ends, which was, however found weak for all goods/services.

The marks differ in following aspects:

The contested mark contains the first letters 2F, a stylised letter O, and last letter H, none of which, together with the overall stylisation, are present in the earlier marks.

The earlier mark a) contains words in two lines. The word LIGHT is placed in a second line, and together with the overall stylisation is not present in the contested mark.

The earlier mark b) contains additional word element KITCHEN, which together with the overall stylisation is not present in the contested mark. The additional device elements described previously are perceived, and deemed weak.

The earlier mark c) contains additional device elements, described above, and not present in the contested mark. The additional device elements, together with the overall stylisation, are perceived, and deemed weak.

Therefore, the signs are visually similar to 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 sound of the letters forming an element POWER, present identically in both signs. However, this element is placed in the beginning, as initial part in the earlier marks, while in the contested mark, it is placed in the middle of the mark. There is an aural coincidence in the letter sequence TEC and TECH in the marks, although the marks a), b) and the contested mark have different endings due to the differing elements such as LIGHT or KITCHEN versus TECH.

The pronunciation differs also in their beginnings (POWER in the earlier marks and 2F in the contested mark).

Therefore, the signs are aurally similar to a low degree.

Conceptually, the signs are similar to a low degree due to the coincidence of the elements TEC/TECH in all signs as described above, considering that the remaining elements (except the ones described above to have a concept) are either meaningless or dissimilar.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. Distinctiveness of the earlier marks

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 marks are particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier marks will rest on its distinctiveness per se. In the present case, the earlier trade marks as wholes have 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 marks must be seen as normal, despite the presence of some weak elements in the marks as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The contested goods and services have been assumed to be identical. The similarities and dissimilarities of the marks have been described in detail in section c).

The level of attention of the relevant public will vary from average to higher than average.

The signs are similar to the extent that they share the element POWER, which is  the first element in the earlier signs, and is hidden in the middle of the contested sign. There is also a coincidence in the letters TEC/TECH, which are however considered to form a weak element.  Furthermore, the signs differ significantly in the remaining word and device elements (some weak, some not) and  stylisation. All these additional elements diminish the relevance of the coinciding but not very prominent elements in the contested mark, which are likely to be overlooked by consumers when considering the mark as a whole.

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.

This absence of a likelihood of confusion equally applies to the part of the public for which the elements POWER, LIGHT, KITCHEN, TEC/TECH are weak. This is because, as a result of the weak character of these elements, that part of the public will perceive the signs as being even less similar.

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Rule 94(3) and Rule 94(7)(d)(ii) 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

Francesca DINU

Erkki MÜNTER

Francesca CANGERI SERRANO

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.