OPPOSITION DIVISION
OPPOSITION No B 2 845 355
Cremogena Units, S.A., Polígono Industrial Zona Franca, Sector E. Calle 40, nº 14-
16, 08040 Barcelona, Spain (opponent), represented by P & T Intellectual Property,
S.L. Sant Elíes 21, 3º 1ª, 08006 Barcelona, Spain (professional representative)
a g a i n s t
AlmaWin Reinigungskonzentrate GmbH Talstrasse 2, 73650 Winterbach,
Germany (holder), represented by Kohler Schmid Möbus Patentanwalte
Partnerschaftsgesellschaft MBB, Gropiusplatz 10, 70563 Stuttgart, Germany
(professional representative).
On 15/11/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 845 355 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 international registration
designating the European Union No 11 193 321 for the figurative mark
, namely against all the goods in Class 3. The opposition is
based on European Union trade mark registration No 5 979 489 for the word mark
‘SIDAKLEAN’. The opponent invoked Article 8(1)(b) EUTMR.
As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95
have been repealed and replaced by Regulation (EU) 2017/1001 (codification),
Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU)
2017/1431, subject to certain transitional provisions. All the references in this
decision to the EUTMR, EUTMDR and EUTMIR shall be understood as references to
the Regulations currently in force, except where expressly indicated otherwise.
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.
Decision on Opposition No B 2 845 355 page: 2 of 5
a) The goods
The goods on which the opposition is based are, inter alia, the following:
Class 3: Bleaching preparations and other substances for laundry use; cleaning,
polishing, scouring and abrasive preparations; (abrasive preparations) soaps;
perfumery, essential oils, cosmetics, hair lotions; dentifrices.
The contested goods are the following:
Class 3: Cleaning preparations and laundry preparations.
The contested Cleaning preparations are identical to cleaning preparations. As for
the contested laundry preparations, they are found to be identical to other
substances for laundry use.
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 found to be identical are directed at the public at
large.
The degree of attention must be considered average.
c) The signs
SIDAKLEAN
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 contested mark is a figurative mark containing the word BIOCLEAN in fanciful
writing, displaying a bird that could be a swan over the letter ‘I’. The swan device is
smaller than the remaining letters and therefore not visually dominant A natural
division between ‘BIO’ and ‘CLEAN’ is made by the use of colours, with ‘BIO’ is
Decision on Opposition No B 2 845 355 page: 3 of 5
written in green and ‘CLEAN’ in a more faded style, where the edges of the letters
are marked in pale yellow.
‘BIO’ will, in the eyes of the Opposition Division, be understood throughout the EU as
referring to biological or biology. Bearing in mind that the relevant goods are cleaning
products, this element is weak for the goods since it describes their natural or
biological properties. ‘CLEAN’, however, will not be understood by all members of
the relevant public. This is also reflected by the Board of Appeal in its decision of 5
October 2015 in case R2827/2014-5 CROWN EASYCLEAN. However, it will be
understood by English speakers as an adjective or verb meaning ‘make free from
dirt/free from dirt’. For English speakers, ‘CLEAN’ will be seen as having a very low
degree of distinctiveness for the relevant goods as it describes their intended
purpose. For the members of the relevant public who do not understand it, it will be
viewed as distinctive.
The opponent’s mark consists of the word SIDAKLEAN. The element ‘SIDA’ means
AIDS in Spanish, French, Portuguese and Romanian or ‘side/page’ in Swedish, but
will, in most countries, not have any particular meaning. In any case, ‘SIDA’ is
distinctive in connection with the goods for all the members of the relevant public.
‘KLEAN’ would, for English speakers, be seen as an incorrect way of spelling “clean”
and will be seen as having a low degree of distinctiveness for the goods at issue for
the same reason as that given in the paragraph above concerning ‘CLEAN’ .For the
remaining members of the relevant public, it will be seen as distinctive.
Neither of the marks have a meaning as a whole in any of the relevant languages.
Visually, there is only a small difference in the number of letters in each mark and
‘CLEAN’ and ‘KLEAN’ are visually similar, as stated by the opponent. However it
must be borne in mind that the public will, when assessing a mark, tend to
emphasise the beginning of the mark more than the ending. The beginning of the
marks reveals a substantial difference that the public will inevitably notice. The
Opposition Division therefore disagrees with the view of the opponent that the marks
produce a very similar overall impression.
The beginnings of the marks are different and even though ‘BIO’ has less
distinctiveness, it will not be disregarded due to its position. There are also other
differences contained in the contested sign, namely its stylisation and device
element.
Consequently the Opposition Division finds that similarity between the marks is, at
the most, low.
Aurally, the two elements ‘CLEAN’ and ‘KLEAN’ will be pronounced identically.
However ‘BIO’ and ‘SIDA’, the syllables at the beginning of each mark, have almost
no similarity when it comes to pronunciation. Even taking into account the lower
degree of distinctiveness of some of the elements, the Opposition Division, unlike the
opponent, finds that the marks are aurally similar only to a low degree.
Decision on Opposition No B 2 845 355 page: 4 of 5
Conceptually, reference is made to the previous assertions concerning the semantic
content conveyed by the marks. Consequently, a common, conceptual link is not
established except for English speakers, who will see a link between
‘KLEAN/CLEAN’. However, due to the lower degree of distinctiveness of these
elements, this conceptual similarity is low. For the remaining members of the relevant
public, the marks are therefore not conceptually similar.
As the marks 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.
As explained above the Opposition Division finds that irrespective of a weak element
for English speakers, the mark must be seen as distinctive to a normal degree both
for an English speaking and non-English speaking public.
e) Global assessment, other arguments and conclusion
When assessing the likelihood of confusion all relevant factors must be taken into
consideration. 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).
There has been established a low degree of visual and aural similarity, and a low
degree of conceptual similarity for only part of the relevant public. However this is
outweighed by the fact that the relevant public tends to focus more on the beginning
than the end of marks. The beginnings of the marks are clearly very different. Further
it must be stressed that although the signs contain similar elements ‘Klean/clean’, the
additional differing elements serve to rule out a likelihood of confusion between the
marks in question.
The differences between the signs, namely, the element ‘BIO’ of the contested sign,
and the word ‘SIDA’ in the earlier mark, are clearly perceivable and will not go
unnoticed. Furthermore, the contested sign contains figurative and device elements
which serve to differentiate it from the earlier mark.
Considering all the above, 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 holder in
the course of these proceedings.
Decision on Opposition No B 2 845 355 page: 5 of 5
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
holder are the costs of representation, which are to be fixed on the basis of the
maximum rate set therein.
The Opposition Division
Riccardo RAPONI Torben Niels-henrik
Engholm KRISTENSEN
Lucinda CARNEY
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.
The amount determined in the fixation of the costs may only be reviewed by a
decision of the Opposition Division on request. According to Article 109(8) EUTMR
(former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be
filed within one month of the date of notification of this fixation of costs and will be
deemed to have been filed only when the review fee of EUR 100 (Annex I A(33)
EUTMR) has been paid.