OPPOSITION No B 2 775 172
Angel Balsells Ventura, Ctra. Nacional II, km. 551,9, 08711 Odena, Spain (opponent), represented by Oficina Ponti, SLP, Consell de Cent, 322, 08007 Barcelona, Spain (professional representative)
a g a i n s t
Q.E.P. Co. U.K. Limited, Airfield Industrial Estate, Blenheim Road, Ashbourne, Derbyshire DE6 1HA, United Kingdom (applicant), represented by IP Lab, 20-22 Wedlock Road, London N1 7GU, United Kingdom (professional representative).
On 21/07/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 775 172 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 15 502 371, namely against all the goods in Classes 17, 19 and 27. The opposition is based on Spanish trade mark registration No 2 473 118. The opponent invoked Article 8(1)(b) EUTMR.
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SYNERGY BY OTEMAN |
SYNERGY |
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Earlier trade mark |
Contested sign |
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.
- The goods
The goods on which the opposition is based are the following:
Class 7: Machines and apparatus for the textile industry.
The contested goods are the following:
Class 17: Sound absorbing flooring underlayment.
Class 19: Flooring underlay.
Class 27: Underlays for mats; underlays for rugs; underlays for carpets.
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 opponent’s machines and apparatus for the textile industry in Class 7 are, essentially, power-driven tools for the treatment of materials in the textile industry. The contested underlays in Classes 17, 19 and 27 have a different nature, purpose and method of use from machines and apparatus. The goods at issue are neither complementary nor in competition. Notwithstanding the opponent’s argument that they can have the same producers and distribution channels, it is highly improbable that the same undertaking would build mechanical machines for industrial use and produce floor underlays (products of very different natures destined for different markets) or that consumers would be able to purchase these goods through the same distribution channels, as machines and apparatus for the textile industry are specific technological items for professional use, while flooring underlays can be purchased in most homeware stores and used by the general public.
Taking all the above into account, these goods are dissimilar.
- 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 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
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Martin EBERL |
Milda CERNIAUSKAITE |
Denitza STOYANOVA-VALCHANOVA |
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.