OPPOSITION DIVISION
OPPOSITION No B 2 785 676
Klemens Dittrich, Fliederstraße 12, 42109 Wuppertal, Germany (opponent),
represented by Schulte & Schulte, Hauptstr. 2, 45219 Essen, Germany
(professional representative)
a g a i n s t
Shenzhen Alldocube Technology and Science Co., Ltd, Factory Building 1,
SuWang Industrial Park, XiaHengLang Industrial Zone, DaLang Street, LongHua
New District, Shenzhen City, People’s Republic of China (applicant), represented by
Renaissance Solicitors LLP, 413 Hoe Street, Walthamstow, London E17 9AP,
United Kingdom (professional representative).
On 22/11/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 785 676 is rejected in its entirety.
2. The opponent bears the costs, fixed at EUR 300.
Preliminary remark
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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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.
REASONS
The opponent filed an opposition against all the goods of European Union trade mark
application No 15 551 922 for the figurative mark ,
namely against all the goods in Class 9. The opposition is based on international
registration No 1 232 348 designating the European Union for the figurative mark
. The opponent invoked Article 8(1)(b) EUTMR.
Decision on Opposition No B 2 785 676 page: 2 of 9
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
The goods on which the opposition is based are the following:
Class 9: Scientific, surveying, electric, photographic, cinematographic, optical,
measuring, signaling, checking and teaching apparatus; apparatus for recording,
transmission or reproduction of sounds and images; data processing equipment and
computers; chargers for accumulators.
The contested goods are the following:
Class 9: Computer peripheral devices; notebook computers; smartwatches; tablet
computers; smartglasses; chargers for electric batteries; cell phones; wearable
activity trackers; earphones; electronic pens; batteries, electric; sleeves for laptops;
set-top boxes; cabinets for loudspeakers; portable media players; electronic book
readers; handheld computers; satellite navigational apparatus; display screen
protectors in the nature of films for mobile phones; computers.
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.
The contested smartwatches are computerised wristwatches. The contested
wearable activity trackers are devices for monitoring and tracking fitness-related
metrics, such as the distance walked or run and calorie consumption. The contested
electronic pen is a pen-like device that enables a person to enter information into a
digital or electronic device by writing on a screen. The contested handheld
computers are computers that can conveniently be stored in a pocket.
The opponent’s data processing equipment comprises devices that compute,
especially programmable electronic machines that perform high-speed mathematical
or logical operations or that assemble, store, correlate or otherwise process
information.
The contested notebook computers; smartwatches; tablet computers; smartglasses;
cell phones; wearable activity trackers; electronic pens; portable media players;
electronic book readers; handheld computers are included in the broad category of
the opponent’s data processing equipment. Therefore, they are identical.
The contested earphones are included in the broad category of the opponent’s
apparatus for reproduction of sounds. Therefore, they are identical.
Decision on Opposition No B 2 785 676 page: 3 of 9
The contested set-top boxes are electronic boxes that generally receive TV-tuner
input from an external signal and transmit display output to a television set’. This
device has several functions, including allowing the user to record channels. To that
extent, the Opposition Division considers that these goods are included in the broad
category of the opponent’s apparatus for recording, transmission or reproduction of
sounds and images. Therefore, they are identical.
Computers are identically contained in both lists of goods.
The contested chargers for electric batteries and the opponent’s chargers for
accumulators are similar to a high degree because they have the same nature and
purpose. Furthermore, they are manufactured by the same companies and are sold
in the same outlets. In addition, they target the same public.
The contested computer peripheral devices are devices attached to a host computer,
the primary function of which is dependent upon the host and can therefore be
considered as expanding the host’s capabilities. They are similar to the opponent’s
data processing equipment and computers. These goods have the same producers
and distribution channels. Furthermore, they are complementary and target the same
public.
The contested batteries, electric are similar to the opponent’s computers, as they can
target the same relevant public and have the same distribution channels.
Furthermore, these goods can also be complementary, since, for example, laptops
are essential for the use of laptop batteries and these goods are also normally
produced by the same undertakings.
The contested sleeves for laptops; display screen protectors in the nature of films for
mobile phones are similar to the opponent’s data processing equipment. These
goods, in addition to being complementary, are manufactured by the same
companies and are sold side by side. Furthermore, they target the same public.
The contested cabinets for loudspeakers are enclosures in which speaker drivers
and associated electronic hardware, such as crossover circuits and amplifiers, are
mounted. These goods are indispensable parts of loudspeakers, which are included
in the opponent’s apparatus for recording, transmission or reproduction of sound.
Therefore, they are complementary. Moreover, the goods under comparison have the
same target public and the same commercial origin. Therefore, they are similar.
The contested satellite navigational apparatus is apparatus for navigation that uses
signals from orbiting satellites and mapping data to pinpoint the user’s position and
plot a subsequent course. These goods are used for determining geographical
location and/or guiding a vehicle, person or object or for determining the parameters
of an area and compiling and drawing a diagrammatic depiction of its surface or a
part thereof. To function, these electronic devices use software to process data and
therefore have a similar nature to the opponent’s data processing equipment, which
can be equipment or interconnected systems or subsystems of equipment used in
the automatic acquisition, storage, manipulation, management, movement, control,
display, switching, interchange, transmission or reception of data or information, and
which also uses software to process data. Furthermore, these goods are in
competition, as data processing equipment can be substituted for satellite
navigational apparatus, as mobile phones are likely to serve the same function.
These goods may be manufactured by the same companies specialising in the field
of electronics, and can be found in the same retail outlets. Therefore, they are
considered similar.
Decision on Opposition No B 2 785 676 page: 4 of 9
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 or similar to various degrees are
directed at the public at large and at IT professionals.
The degree of attention will vary from average to high depending on the price of the
goods purchased (it will be higher, for instance in relation to computers).
c) The signs
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 earlier mark is a figurative mark comprising the upper case letters ‘ALLDOCK’.
The ‘A’ is blue, one ‘L’ is orange, the second ‘L’ is green and the sequence of letters
‘DOCK’ is black. There is also a triangular notch in the letter ‘D’, but this element is
negligible.
The contested sign is also a figurative mark. A blue cube is depicted on the left. On
the right is the verbal element ‘ALLDOCUBE’, in blue upper case letters.
The average consumer normally perceives a mark as a whole and does not proceed
to analyse its various details (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23;
22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 25). On the other hand,
the Court has also held that the consumer, when perceiving a word sign, will break it
down into word elements which, for him or her, have a concrete meaning or which
resemble words known to him or her (11/11/2009, T-277/08, Citracal, EU:T:2009:433,
§ 55).
It has to be recalled that a very large proportion of European consumers and
professionals have an elementary knowledge of English (26/09/2012, T-301/09,
Citigate, EU:T:2012:473, § 41). Moreover, it has to be recalled that the goods target
Decision on Opposition No B 2 785 676 page: 5 of 9
the general public and professionals in the field of IT. These professionals are, in
general, more familiar with the use of technical and basic English words. For these
reasons, the Opposition Division considers that the element ‘CUBE’ of the contested
mark and, to a lesser extent, the element ‘DOCK’ of the earlier mark will be
understood by a vast majority of the target public.
For the English-speaking part of the public (and the part of the public that has a good
command of English) the signs are meaningful. The English-speaking part of the
public will break the signs down and will perceive the meanings of ‘ALL’, ‘DO’, ‘CUBE’
and ‘DOCK’.
‘ALL’, identically present in both marks, will be perceived as referring to the whole of
a particular group or thing or to everyone or everything of a particular kind. ‘DO’ is
used to describe an action, performance, activity or task that is undertaken. ‘DOCK’
has several meanings. It can be understood as ‘an enclosed area of water in a port
for the loading, unloading and repair of ships’, ‘a device in which a laptop,
smartphone or other mobile device may be placed for charging’ or ‘a taskbar’. The
word ‘CUBE’ will be understood as meaning ‘a symmetrical three-dimensional shape
contained by six equal squares’.
The elements ‘ALL’, ‘DO’ and ‘CUBE’ have no meaning in relation to the goods at
issue and have an average degree of distinctiveness.
The word ‘DOCK’ is non-distinctive in relation to the opponent’s apparatus for
reproduction of sounds and images, as it will be perceived as descriptive of the
nature of these goods. In relation to the opponent’s remaining goods, this element
has a normal degree of distinctiveness.
It cannot be ruled out that part of the non-English-speaking part of the public
(including the part of the public that has a good command of English) will also
understand the word ‘DOCK’ as referring to the device in which a smartphone may
be placed for charging, because anglicisms in IT are relatively widespread within the
European Union. Therefore, for this part of the public, ‘DOCK’ will also be non-
distinctive in relation to the opponent’s apparatus for reproduction of sounds and
images.
For the remaining part of the public, namely the non-English-speaking part of the
public (including the part for which ‘DOCK’ does not have the foregoing descriptive
meaning), the words ‘ALLDOCUBE’ and ‘ALLDOCK’ are, as such, meaningless.
However, the words ‘CUBE’ and ‘DOCK’ will be understood by part of the public,
‘CUBE’ as having the same meaning as in English (e.g. in French) and ‘DOCK’ as
referring to the enclosed area of water in a port (e.g. in French).
As these elements have no meaning in relation to the goods at issue, they have a
normal degree of distinctiveness.
The figurative element of the contested sign has no meaning in relation to the goods
at issue and has a normal degree of distinctiveness.
The contested sign has no element that can be considered more dominant than
others.
As mentioned above, the triangular notch is negligible in the earlier mark. In addition,
without being dominant, the element ‘DOCK’, given its bold colouring, is slightly more
eye-catching than the element ‘ALL’.
Decision on Opposition No B 2 785 676 page: 6 of 9
Visually, the signs coincide in the sequence of letters ‘ALLDOC’.
The signs differ in the additional figurative element of the contested mark, in their
typefaces and in their endings, ‘K’ in the earlier mark and ‘UBE’ in the contested sign.
In the scenario where ‘DOCK’ is non-distinctive, the signs mainly coincide in the
letters ‘ALL’. The element ‘ALL’ will not be perceived separately within the word
‘ALLDOCUBE’. On the contrary, this element merges imperceptibly into the word
‘ALLDOCUBE’, bearing in mind that the element ‘ALL’ is depicted between the
figurative cube and the word ‘CUBE’.
In the scenario where ‘DOCK’ has an average degree of distinctiveness, the visual
differences remain significant. The graphical depiction of the sign gives a significant
impact to the element ‘DOCK’ because it is the only one in a uniform colour. This
element has an independent distinctive role.
In any event, even where two marks contain highly similar verbal elements – which is
not the case here – that fact does not, by itself, support the inference that there is a
strong visual similarity between the marks at issue. The presence, in one of the two
signs, of figurative elements set out in a specific and original way can have the effect
that the overall impression conveyed by each mark is different (12/09/2012, T-295/11,
duschy, EU:T:2012:420, § 66). In the present case, account should be taken of the
specific typefaces and of the figurative element of the earlier mark that create
differences.
Given the above, the signs have to be considered visually similar to a low degree, in
both scenarios.
Aurally, a distinction has to be made between the part of the public for which the
letters ‘C’ and ‘K’ have the same pronunciation (e.g. the French-speaking part) and
the part of the public for which these letters are not pronounced the same way (e.g.
the Polish-speaking part).
In the scenario where the letters ‘C’ and ‘K’ are pronounced the same way, the signs
coincide in the sound of the letters ‘ALLDOCK’ and differ in the sound of the letters
‘UBE’.
In the other scenario, the signs coincide in the sound of the letters ‘ALLDOC’ and
differ in the sound of their additional letters, ‘K’ in the earlier mark and ‘UBE’ in the
contested sign.
However, the signs differ in rhythm and length. The marks will be pronounced ‘ALL-
DOCK’/‘ALL-DO-CU/BE’ (or ‘AL-DO-CUB’, e.g. in French). The contested mark has
one or two syllables more than the earlier mark, and only the first one is the same.
Therefore, given the above, the signs are aurally similar to a low degree.
Conceptually, reference is made to the previous assertions concerning the semantic
content conveyed by the marks.
For the English-speaking part of the public (and the part of the public that has a good
command of English) the signs are conceptually dissimilar, given that they convey
different main concepts, ‘DOCK’ in the earlier mark – or ‘ALL’ in the scenario where
‘DOCK’ is non-distinctive, because non-distinctive elements have no influence in the
Decision on Opposition No B 2 785 676 page: 7 of 9
conceptual comparison (04/02/2013, T-159/11, Walichnowy Marko, EU:T:2013:56,
§ 45) – and ‘CUBE’ in the contested sign.
For the non-English-speaking part of the public for which ‘DOCK’ refers to the device
in which a smartphone may be placed for charging, the signs are conceptually
dissimilar when ‘DOCK’ is distinctive, and not similar when ‘DOCK’ is non-distinctive.
For the part of the public for which ‘DOCK’ conveys a concept (other than a device in
which a smartphone may be placed for charging), the signs are conceptually
dissimilar regardless of the understanding of the word element ‘CUBE’ of the
contested sign, because the figurative cube will in any case trigger this concept in the
consumer’s mind.
For the remaining part of the public, although it will perceive the meaning of the
figurative element of the contested sign as explained above, the other sign has no
meaning. Since one of the signs will not be associated with any meaning, the signs
are not conceptually similar.
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 his 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, despite the presence of a non-distinctive element in the mark, for some of
the goods as stated above in section c) of this decision.
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 goods are partly identical and partly similar to various degrees.
The signs are visually and aurally similar to a low degree. Conceptually, the signs are
dissimilar for part of the public and not similar for the remaining part.
The global impressions conveyed by the signs are very different. The contested sign
is self-coloured and contains a figurative element, whereas the earlier mark has four
colours. Moreover, the only element of the earlier mark that has a uniform colour,
Decision on Opposition No B 2 785 676 page: 8 of 9
‘DOCK’, is hidden in the contested sign, as ‘DOC’, in the contested sign, has a
secondary position, as there is a tendency to overlook the middle parts of words.
From an aural perspective, the signs have many differences, in terms of rhythm and
length, the earlier mark being pronounced ‘ALL-DOCK’, whereas the contested sign
is pronounced ‘ALL-DO-CU-BE’ (or ‘ALL-DO-CUB’, as explained above). Therefore,
the earlier mark has two syllables and the contested sign has three or four syllables.
Moreover, it has to be kept in mind that conceptual differences may largely neutralise
visual or aural similarities (16/10/2013, T-328/12, Maxigesic, EU:T:2013:537, § 63). In
the present case, as regards the English-speaking part of the public (and the part of
the public that has a good command of English), as well as the non-English-speaking
part of the public that understands ‘DOCK’ and/or ‘CUBE’, the conceptual differences
are important. As mentioned above in part c), the concepts conveyed by the signs
are very different, as their main concepts are a dock and a cube respectively. These
conceptual differences will be easily noticed, as these elements have an independent
distinctive role in the marks, ‘DOCK’ because this element is in black in the earlier
mark (whereas ‘ALL’ is in three colours), and ‘CUBE’ because the two ends of the
contested sign are related to a cube. Therefore, the Opposition Division considers
that these differences largely offset the visual and aural similarities.
Finally, in the scenario where ‘DOCK’ is non-distinctive, the differences remain
important. Consumers’ attention will be caught by the element ‘ALL’ in the earlier
mark. The differences between the elements ‘ALL’ and ‘ALLDOCUBE’ are easily
noticeable, visually, aurally and conceptually.
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, he 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 (former Rule 94(3)
and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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.
Decision on Opposition No B 2 785 676 page: 9 of 9
The Opposition Division
Dorothee SCHLIEPHAKE Patricia LOPEZ
FERNANDEZ DE
CORRES
Steve HAUSER
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.