OPPOSITION No B 2 766 049

Jet Services, 26 Boulevard Malesherbes, 75008 Paris, France (opponent), represented by Marchais Associés, 4, avenue Hoche, 75008 Paris, France (professional representative)

a g a i n s t

Servei Aeri Andorra D’avantguarda S.L., Av. de la Bartra s/n, Encamp 200, Andorra (applicant), represented by Clarke Modet y Cía. S.L., Rambla de Méndez Núñez 12 – 1º Puerta 2 bis, 03002 Alicante, Spain (professional representative).

On 22/09/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 766 049 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 15 380 926, for the figurative mark . The opposition is based on French trade mark registration No 3 999 157, for the figurative mark . 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 and services on which the opposition is based are the following:

Class 12: Air vehicles, aeroplanes, aircraft, apparatus, machines, devices for aeronautics.

Class 35: Business management ; business administration ; business management and organization consultancy ; professional business consulting ; efficiency experts ; business information ; commercial or industrial management assistance ; business inquiries ; business appraisal ; commercial information agencies ; business consulting services and administrative and commercial assistance ; management of retail internet sites for information, advertising and promotion of goods and services ; procurement services for third parties in particular related to maintenance, overhaul, maintenance, cleaning, washing, repair, renovation, transformation or improvement of vehicles, of aircraft or parts thereof, (purchasing goods and services for other companies) ; placing and receiving orders of goods and services via the internet, intranet and extranet ; retail services of apparatus, equipment, machinery and aerospace, avionic, hydraulic or pneumatic devices ; retail services of transport tickets, airline tickets, travel tickets, booking tickets for hotel rooms, restaurant seats or tables or vehicle booking tickets via the internet, intranet or extranet ; mercatiques and promotion services for airlines ; sales promotion (for others) ; business and commercial management of promotional incentives ; encouraging customer and personnel loyalty by means of promotional or advertising campaigns ; administrative and commercial services of a loyalty program especially in the field of air transport, construction, maintenance, overhaul, maintenance, cleaning, washing, repair, renovation, conversion or development of airplanes, their parts or airport infrastructure ; administrative or commercial management of loyalty points or vouchers within the context of a customer loyalty scheme ; drawing up of statements of accounts ; book-keeping ; commercial information, advertising and sales promotion for others through the management of commercial websites ; collection and systematic organization of data in a central file ; computerized file management ; computerized files management including internet, extranet or intranet ; database management including internet, extranet or intranet, advertising, direct mail advertising, radio advertising, television advertising, advertising by internet, intranet and extranet, advertising by any means of telecommunication ; dissemination of advertising matter ; publicity columns preparation ; rental of advertising space ; publication of publicity texts ; direct-mail advertising ; office functions ; arranging newspaper, magazine, journal, periodical or newsletter subscriptions for others ; display, cost analysis ; office machines and equipment rental ; transcription of communications, accounting, consulting for staff matters, staff recruitment, updating of advertising material, document reproduction ; organization of exhibitions for commercial and advertising purposes, organization of contests (advertising or sales promotion), opinion polling, projects (assistance for business management), public relations, secretarial services, statistical information, product demonstration , market analysis, market research, economic forecasting, modeling services for advertising or sales promotion, sponsors research, commercial administration of the goods or services licenses of third parties.

Class 37: Maintenance, servicing, maintenance, cleaning, washing, repair, renovation, transformation, planning of aircrafts and their components, maintenance, servicing, maintenance, cleaning, washing and repair of aircraft engines, of apparatus, of equipment or aircraft, avionic, hydraulic or pneumatic components, construction, maintenance, cleaning and renovation of buildings, airport infrastructures, airports, terminals, warehouses, garages, car parking, airports trails or roads, aircraft construction, maintenance, cleaning, renovation, conversion, decoration or arrangement of cabins, cockpits or aircraft bunkers, maintenance and cleaning of floors, surfaces, seats, chairs, shelves, spaces storage compartment, luggage compartment, ashtrays, bins, including video screens on airplanes or within the walls of airports, maintenance and cleaning toilets, supervision (management) and coordination of construction, maintenance, overhaul, maintenance, cleaning, washing, repair, renovation, alteration or development services of all vehicles, of their parts or of all buildings, gaz stations namely fuel supply and maintenance of vehicles including aircrafts, deicing and snow removal services off roads, airport runways, vehicles and particularly of aircrafts, cleaning and maintenance of headrests, pillows, cushions, blankets, sheets , towels, table linen and towels including provision on planes or on the premises of airports, maintenance, cleaning and repair of leather, textiles or coating, cleaning and maintenance of electrical, electronic, audio and video equipment and appliances in particular provided on planes or on the premises of airports, assistance in case of vehicle breakdowns (repair) including air vehicles, information on maintenance, overhaul, maintenance, cleaning, washing and repair of all vehicles, their components, of devices, of equipment, of aeronautical and of avionic, hydraulic or pneumatic parts, of airports, of aviation infrastructures or any building, disinfection of all vehicles or buildings, cleaning of dishes, glasses, glassware, installation, maintenance and repair of signaling devices for fire, arrangement, transformation and modernization (renovation) of vehicles including planes, painting work, vulcanization of tires (repair), vehicle polishing , refurbishment of used machinery or partially destroyed motors, treatment against rust preventive treatment against rust for vehicles, maintenance, servicing, cleaning and repair of all safety equipment, including airplanes, within airports or airport areas.

Class 39: Transport, packaging and storage of goods, passenger transport, transport of travelers, transportation of animals, transportation of organs ; travel arrangement, escorting of travelers, air hostess services (escorting travelers), air transport, aeronautical transport, freighting, freight forwarding, freight [shipping of goods], transport, travel or car rental information, information in the field of passenger, good and animal transport, booking of tickets for travel, of tickets or air tickets, transit services, transport reservation, passenger, fret and animals transport reservation, car shuttle services, luggage, fret and passenger check-in services, loading and unloading of airplanes, providing air vehicles, public transport for passengers, rental of storage containers, freight brokerage, transport brokerage, rental of warehouses, garages, rental of wheelchairs, providing wheelchairs for passengers in airports ; loan, lease and provision of air vehicles or aircraft, professional consultancy in the field of (air) transport, goods and luggage handling including in airports, organization of passenger, crew, sailing personnel or goods transfers and transits, from an airport or a plane to another airport or airplane.

Class 41: Education, training, aeronautic training, flight school services ; arranging and conducting of conferences, congresses and symposiums.

Class 43: Restauration services, flight restauration services, restauration services on board airplanes, restauration services in the premises of airports, temporary accommodation, rental or provision of meeting rooms, waiting rooms, relaxation areas or relaxation especially within the walls of airports, rental or provision of household appliances for cooking or restaurants, rental of chairs, tables, furniture, table linen, toilet and bath and glassware, restaurant services, self-service restaurants, bars, coffee shops, cafeterias, hotel services, hotels, restaurants, bars or coffee shops, self-service restaurants reservation, information services relating to hotel or restaurant, catering services, preparation and provision of meals, drinks and food in particular on airplanes.

The contested goods and services are the following:

Class 9: Flight simulators; computer software for training and educational purposes in relation to aviation; downloadable electronic publications relating to aeroplanes and helicopters, flight instructions, providing of training for pilots and cabin crew.

Class 16: Printed publications, in particular leaflets, magazines, booklets, operating manuals, books (including manuals and loose-leaf books), manuals, leaflets and teaching material relating to aviation and air transport.

Class 39: Air transport, airport check-in services, ground support for freight handling provided at airports, providing of airport information relating to aviation, rental of aeroplanes and helicopters; piloting.

Class 41: Education and providing of training relating to the training of pilots and ground instructions for pilots and engineers, instruction and providing of training for pilots and cabin crew in aeroplanes, and for helicopter flights; courses, seminars and other services relating to teaching in the field of aviation and air transport; online non-downloadable electronic publications relating to aeroplanes and helicopters, flight instructions, and providing of training for pilots and cabin crew; organisation of tests for measuring performance.

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 business customers with specific professional knowledge or expertise.

The public’s degree of attentiveness may vary from average to high, depending on the price, specialised nature, as is the case, for example, of piloting services, or terms and conditions of the purchased goods and services.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is France.

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).

Both marks are figurative. The earlier mark consists of a combination, all in grey, of an arrowhead crossed by three ascending lines with pointed ends, slimmer on the lower left side. The contested mark consists of a dark blue arrowhead, flattened on top and shorter on the left side, crossed by two golden curves with flat bases and pointed tops. On the right-hand side of this device the words ‘ANDORRA’ and ‘ACADEMY’ are depicted in dark-blue upper case letters separated by the word ‘AVIATION’ in gold upper case letters, depicted over three lines.

It is not excluded that part of the public may see both figurative elements of the marks as being highly stylised reproductions of the letter ‘A’.

The figurative elements of both marks have no specific meanings for the relevant public and are, therefore, distinctive.

The verbal element ‘ANDORRA’ of the contested sign will be associated with the Principality of Andorra, a country in the Pyrenees, between Spain and France (information extracted on 06/09/2017 from Larousse Dictionnaires at http://www.larousse.fr/encyclopedie/pays/principaut%C3%A9_d_Andorre/105392) due to its similarity to the French version, Andorre. It is considered that this element is non-distinctive, as it indicates the geographical origin of the goods and services or the place of the provision or of the destination of some of the services (e.g. air transport in Andorra, to Andorra).

The verbal element ‘AVIATION’ of the contested sign will be associated with ‘aircraft navigation by means of aircraft heavier than air’ (information extracted on 06/09/2017 from Larousse Dictionnaires at http://www.larousse.fr/dictionnaires/francais/aviation/7078?q=aviation#7044). It is considered that this element is non-distinctive for all the relevant goods and services, as these are related to air transport and flights.

The verbal element ‘ACADEMY’ of the contested sign will be associated, inter alia, with ‘college’ (information extracted on 06/09/2017 from Le Grand Robert de la langue française at http://gr.bvdep.com/robert.asp), due to its similarity to the French version, ‘académie’. Considering that some of the goods and services are related to education and the provision of training, it is considered that this element is non-distinctive for all the relevant goods and services, as these are related to education and the provision of training, namely all goods in Class 9 and all services in Class 41, except online non-downloadable electronic publications relating to aeroplanes and helicopters. For the rest of the goods and services, this element is distinctive to an average degree.

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

Visually, both signs reproduce an arrowhead that could be seen, by part of the relevant public, as being a highly stylised letter ‘A’. However, due to their very specific representations, namely the fact that the left side of the arrowhead is narrow in the earlier mark and bold in the contested one and the arrowhead is crossed by three lines and two curves, respectively, the stylisation and colour of the signs and the additional verbal elements (although they are partially non-distinctive) of the contested sign, it is considered that the overall impressions produced by the signs are different.

As the signs coincide only in irrelevant aspects, namely the presence of part of an arrowhead, it is concluded that the signs are not visually similar.

Aurally, the earlier mark will be pronounced as ‘A’ (by the part of the public that sees a stylised ‘A’ in it) or not pronounced at all (if seen as a purely figurative sign), whereas the contested mark will be pronounced as ‘Andorra Aviation Academy’ (although all these elements are non-distinctive for some of the goods and services), because even those consumers who see the letter ‘A’, are not likely to pronounce it because it represents only the initial letter of the following three words.

Therefore, for part of the public, the signs are aurally dissimilar. For the rest of the public, the signs are not subject to a phonetic assessment.

Conceptually, part of the public in the relevant territory will associate both marks with the letter ‘A’, namely the first letter of the alphabet, and is the initial letter of the verbal elements ‘Andorra Aviation Academy’ in the contested sign. As both signs will be associated with the same concept of the letter ‘A’, the signs are conceptually similar to a low degree. For the rest of the public, only the additional verbal elements ‘Andorra Aviation Academy’ of the contested mark will be associated with the meanings explained above. 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.

4. 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 and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The goods and services were assumed to be identical and are directed at the public at large and at business customers with specific professional knowledge or expertise. The public’s degree of attentiveness may vary from average to high.

Visually and aurally, the signs are not similar. Conceptually, for part of the public, the signs are similar to a low degree to the extent that they reproduce an arrowhead which could be seen as being a highly stylised letter ‘A’. In any case, this reproduction is depicted differently in the signs, namely crossed by three grey lines in the earlier mark and by two differently shaped gold curves in the contested mark. The top of the arrowhead is also different, pointed in the earlier mark and flat in the contested one. Moreover, the earlier mark is grey, whereas the contested mark is a combination of dark blue and gold. In addition, the contested mark contains further verbal elements that cannot be disregarded, although they were found to be non-distinctive for some of the goods and services, as detailed in section c).

For the part of the public that perceives the figurative elements as a combination of lines and curves, the signs are visually and conceptually different and aurally cannot be compared, as one sign is purely figurative.

Even for the public for which the signs are conceptually similar to a low degree, the reproduction of an arrowhead crossed by some lines/curves and perceived as the letter ‘A’ is depicted in a very different manner in the two signs, and there is no likelihood of confusion, since this element is hardly perceptible in the contested trade mark and because there are additional verbal elements. The Opposition Division considers that these visual, aural and conceptual differences suffice to offset the similarities between the signs, which lie in the reproduction of an arrowhead, even for the part of the relevant public with an average degree of attention.

The opponent refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T-281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In the present case, the previous cases referred to by the opponent are not relevant to the present proceedings. In most of the cases, the signs under comparison are reproducing the same device, with minor alterations and fewer or no elements to differentiate between them, which is not applicable in the present case, in which the visual, aural and conceptual differences offset the similarities between the signs, which lie in the reproduction of an arrowhead. In other cases, the opposition is based on Article 8(5) EUTMR, which was not invoked in the present opposition.

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.

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

Zuzanna STOJKOWICZ

Francesca DRAGOSTIN

Loreto URRACA LUQUE

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.