OPPOSITION No B 2 657 594

Beter Bed Holding N.V., Linie 27, 5405 AR Uden, The Netherlands (opponent), represented by Signify B.V., Prof. J.H. Bavincklaan 2, 1183 AT Amstelveen, The Netherlands, (professional representative)

a g a i n s t

Eric M. J. Uyttenboogaard, 2e Industrieweg 14a, 4147 CT Asperen The Netherlands, (applicant), represented by Schulte & Schulte, Hauptstr. 2, 45219 Essen Germany (professional representative).

On 13/03/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 657 594 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 trade mark application No 14 693 171 M-Line. The opposition is based on, inter alia, the European Union trade mark registration No 10 120 211 M LINE. The opponent invoked Article 8(1)(b) EUTMR.

SUBSTANTIATION

According to Article 76(1) EUTMR, in proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.

It follows that the Office cannot take into account any alleged rights for which the opponent does not submit appropriate evidence.

According to Rule 19(1) EUTMIR, the Office shall give the opposing party the opportunity to present the facts, evidence and arguments in support of its opposition or to complete any facts, evidence or arguments that have already been submitted together with the notice of opposition, within a time limit specified by the Office.

According to Rule 19(2) EUTMIR, within the period referred to above, the opposing party shall also file proof of the existence, validity and scope of protection of its earlier mark or earlier right, as well as evidence proving its entitlement to file the opposition.

In particular, if the opposition is based on a registered trade mark which is not a European Union trade mark, the opposing party must provide a copy of the relevant registration certificate and, as the case may be, of the latest renewal certificate, showing that the term of protection of the trade mark extends beyond the time limit referred to in paragraph 1 and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered — Rule 19(2)(a)(ii) EUTMIR.

In the present case the notice of opposition was not accompanied by any evidence as regards four earlier trade marks on which, inter alia, the opposition is based, namely the International registration designating the European Union no. 910 918 ‘M LINE SLEEP WELL MOVE BETTER’ (word mark) in classes 20, 22, 24 and 35, International registration designating the European Union no. 1 100 659  in classes 20 and 24, national trade mark (Benelux) no. 694 773 ‘M-LINE’ (word mark) in the classes 20 and 24, national trade mark (Benelux) no. 904 638 in classes 20 and 24.

On 26/02/2016 the opponent was given two months, commencing after the ending of the cooling-off period, to submit the abovementioned material. This time limit expired on 01/7/2016.

The opponent did not submit any evidence concerning the substantiation of the above mentioned earlier trade marks.

According to Rule 20(1) EUTMIR, if until expiry of the period referred to in Rule 19(1) EUTMIR the opposing party has not proven the existence, validity and scope of protection of its earlier mark or earlier right, as well as its entitlement to file the opposition, the opposition shall be rejected as unfounded.

Therefore, the opposition cannot proceed with respect to the above mentioned earlier rights as it has to be considered unfounded as regards these earlier trade marks. It can proceed as far it is based on the earlier European Union registration No.  10 120 211.

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 on which the opposition is based are the following:

Class 20: Beds, bedsteads; Bed bases; Bedding (except linen); Bedsteads of wood; Mattresses, spring mattress, box springs; Spring mattresses; Cushions; Furniture, bedroom furniture.

Class 24: Textiles and textile goods, not included in other classes; Bed clothes; Quilts; Blankets, sheets; Ticks (mattress covers), mattress toppers.

The contested goods are the following:

Class 4: Fuel for use in barbecues; Barbecue lighting fuel.

Class 7: Food processors; Electric crushing machines for household purposes; Fruit presses, electric, for household purposes; Grating machines for vegetables; Electric knives; Electric blenders for household purposes; Kitchen grinders, electric; Electric egg beaters; Electric shears; Electromechanical apparatus for making food and beverages; Electric beaters and kneaders; Electric pressing devices; Electric fruit juice extractors; Machines for grinding [electric]; Electrical cutting apparatus; Electric can openers.

Class 11: Cooking grills; Barbecues; Roasting devices; Cookers incorporating grills; Grill heating plates; Electric rotisseries; Gas fired broilers; Barbecue grills.

Class 21: Gridiron supports; Oven mitts; Household and kitchen containers and vessels; Household or kitchen utensils; Hand-operated cleaning implements; Articles for cleaning purposes.

As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services shall not be regarded as being similar or dissimilar to each other on the ground that they appear in the same or different classes under the Nice Classification.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 4

The contested fuel for use in barbecues; barbecue lighting fuel are all intended to light the fire and help in powering barbecues. These goods are dissimilar to all the opponent’s goods in classes 20 and 24 that are mainly related to bedding, furniture (class 20) as well as textiles (piece goods) and textile covers for household (class 24).The nature, purpose and method of use of goods under comparison are different. They are neither complementary to, nor they are in competition with each other. Finally, these goods are produced by different companies. Therefore they are dissimilar.

Contested goods in Class 7

The contested food processors; electric crushing machines for household purposes; fruit presses, electric, for household purposes; grating machines for vegetables; electric knives; electric blenders for household purposes; kitchen grinders, electric; electric egg beaters; electric shears; electromechanical apparatus for making food and beverages; electric beaters and kneaders; electric pressing devices; electric fruit juice extractors; machines for grinding [electric]; electrical cutting apparatus; electric can openers are all machines and apparatus used to mix, purée, emulsify, cut or slice food and other substances. These goods are not similar to the opponent’s goods in classes 20 and 24 since they have a different nature, a different purpose and a different method of use. These goods do not share the same origin since they are normally manufactured by different companies. Finally, these goods are not in competition, nor are they complementary.

The opponent claims that some of the opponent’s goods in class 20 such as tea cloths and kitchen towels (textile goods) ‘will be used in combination with, and will usually be sold through the same trade channels as kitchen machine’. Contrary to the opponent’s argument, the Opposition Division is of the opinion that it is not common to find textile goods and kitchen machines in the same department stores; normally they are distributed through different distribution channels. Even if it is true that table covers and kitchen machines may be placed both in the same room, it does not mean that they are strictu sensu used in combination, therefore it cannot be considered a point that the goods under comparison have in common.

For the reasons explained above, no relationship can be found between the goods under comparison, which are considered dissimilar.

Contested goods in Class 11

The opponent’s cooking grills; barbecues; roasting devices; cookers incorporating grills; grill heating plates; electric rotisseries; gas fired broilers; barbecue grills are all apparatus for cooking and, in particular, grill food. These goods are not similar to the opponent’s goods in classes 20 and 24 since they have a different nature, a different purpose and a different method of use. These goods do not share the same origin since they are normally manufactured by different companies. Finally, these goods are not in competition, nor are they complementary. Therefore they are considered dissimilar.

Contested goods in Class 21

The contested gridiron supports; oven mitts; household and kitchen containers and vessels; household or kitchen utensils; hand-operated cleaning implements; articles for cleaning purposes include a variety of hand-operated utensils and apparatus for household and kitchen use and containers used in the household, such as cookware, tableware, cooking pots and pans, baking tins, etc. They are dissimilar to the opponent’s goods in class 20 because they have clearly different natures and purposes. They normally come from different manufacturers or providers and are distributed through different trade channels. Obviously, the public interested in purchasing the opponent's furniture in Class 20, for example, may also be interested in the contested goods, since all of them are used in the same home environment, but this is not a relevant factor to make them similar to each other. These contested goods have no relevant points of contact with the earlier goods in Class 20.

The contested goods are also dissimilar to the opponent’s textiles and textile goods, not included in other classes; bed clothes; quilts; blankets, sheets; Ticks (mattress covers), mattress toppers in class 24. These goods have a different nature, a different purpose and a different method of use. Even if it is true that the opponent’s ‘textile goods’ (such as a table cloth) in class 24 and the contested ‘kitchen utensils, kitchen containers or vessels’, for instance, may be placed together when laying a table, this is not enough to render them similar. These goods do not share the same origin since they are normally manufactured by different companies. Finally, these goods are not in competition, nor are they complementary in the sense that one is important or indispensable for the use of the other. These goods are therefore considered dissimilar and consumers will not think that the goods derive from the same undertaking.

2. Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition based on the earlier European Union registration No.  10 120 211 must be rejected.

COSTS

According to Article 85(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 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

María Belén IBARRA DE DIEGO

Angela DI BLASIO

Michele M. BENEDETTI-ALOISI

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 shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.