OPPOSITION DIVISION

OPPOSITION No B 2 712 373

Ahlers AG, Elverdisser Straße 313, 32052 Herford, Germany (opponent),

represented by Dompatent von Kreisler Selting Werner – Partnerschaft von

Patentanwälten und Rechtsanwälten mbB, Deichmannhaus am Dom,

Bahnhofsvorplatz 1, 50667 Köln, Germany (professional representative)

a g a i n s t

Xiaoguang Zheng, C/ Alejandro De La Jota, 2 Bloque 5 P 9 3ª, 28860 Boadilla Del

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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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 and services of European

Union trade mark application No 15 072 135 . The opposition is

No 270 264 opposition and on international trade mark registration

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 opposition is based on more than one earlier trade mark. The Opposition

Division finds it appropriate to first examine the opposition in relation to the

Class 25: Clothing; footwear; headgear.

Class 35: Advertising, marketing and sales promotion; trade services and

consumer information services, namely retail and wholesale services relating to

goods of class 25.

The contested goods and services are the following:

Class 18: Saddlery, whips and animal apparel; Luggage, bags, wallets and other

carriers; Umbrellas and parasols; Sausage skins and imitations thereof; Walking

sticks; Trimmings of leather for furniture; Shoulder belts; Leather shoulder belts; Chin

straps, of leather; Kid; Boxes made of leather; Cases, of leather or leatherboard;

Leatherboard; Straps (Leather -); Laces (Leather -); Straps for soldiers’ equipment;

skins; Animal skins, hides; Cattle skins; Worked or semi-worked hides and other

leather; Industrial packaging containers of leather; Furniture coverings of leather;

Studs of leather; Leather cloth; Leather straps; Skin (Goldbeaters’ -); Valves of

leather.

Class 25: Headgear; Footwear; Clothing.

Class 35: Retailing in shops and wholesaling, including via the global computer

network, of clothing, footwear, headgear, clothing accessories, handbags, travelling

bags, and belts; Import-export; franchising relating to business management

assistance.

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 and services presumed to be identical, e.g. leather

goods, fashion articles and retailing services are directed at the public at large

whereas some goods and services, e.g. sausage skins and franchising services are

directed at business customers with specific professional knowledge or expertise.

The degree of attention may vary from average to above average, depending on the

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 right consists of the lower case letter ‘a’, depicted in white and in a fairly

standard typeface. It is positioned on the right bottom of a black squared background.

The black squared background has the same width as the sign’s second verbal

element ‘ahlers’, depicted in smaller black fairly standard type faced lower case

registered earlier trade marks consisting of a single letter represented in standard

characters enjoy a presumption of validity. This applies equally to elements

consisting of a single letter. As the depiction of the single letter ‘a’ is not in any way

particularly elaborated or adorned, it is considered to be distinctive only to a degree

lower than average. The verbal element ‘ahlers’ is therefore considered to be more

distinctive than the sign’s single letter ‘a’. None of the elements of the mark can be

considered clearly more dominant (visually eye-catching) than others

The contested mark consists of the lower case letter ‘a’, depicted in a black fairly

standard typeface. The letter ‘a’ is positioned centrally above the sign’s second verbal

element ‘atractiva’, depicted in smaller black fairly standard type faced lower case

letters. The verbal element ‘atractiva’ will be perceived in all the relevant territories as

alluding to the the meaning of the word attractive, namely pleasing or appealing to

the senses (https://en.oxforddictionaries.com/definition/attractive). Because of this

perceived meaning it is considered to be distinctive only to a degree lower than

average. It is to be noted that it is not uncommon in the course of trade to emphasise

verbal element ‘atractiva’. It is unlikely that the relevant consumer will pronounce the

Visually, the signs coincide in their first verbal elements ‘a’, which are distinctive only

to a degree lower than average, and in the first letter ‘a’ of the signs’ second verbal

element. They differ in the remaining letters of their respective second verbal element

‘*hlers’ (earlier sign) and ‘*tractiva’ (contested sign), the latter being only distinctive to

a degree lower than average. Furthermore, they differ in the fact that the letter ‘a’ of

the earlier sign is depicted in white against a black squared background and that is

not positioned centrally above the sign’s second verbal element. The contested sign’s

element is depicted in black and positioned centrally above the sign’s second verbal

element.

Considering all the above, the signs are visually similar to a low degree.

Aurally, irrespective of the different pronunciation rules in different parts of the

relevant territory, the pronunciation of the signs coincides only in the letter ‘a’ of the

signs’ respective second verbal element ‘a*****’ (earlier sign) and ‘a********’

(contested sign), the latter being only distinctive to a degree lower than average. As

mentioned above, the single letters ‘a’ will not be pronounced by the consumer in the

relevant territories.

Considering all the above, the signs are aurally not similar.

Conceptually, the relevant public will see the lower case letter ‘a’ in both marks and

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.

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 territories. Therefore, the distinctiveness of the earlier mark

must be seen as normal.

e) Global assessment, other arguments and conclusion

The opponent has also based its opposition on the following earlier trade marks:

European Union trade mark registration No 270 264 . As stated above,

when registered earlier trade marks consisting of a single letter represented in

standard characters enjoy a presumption of validity. In accordance to that the

Opposition Division does not question the validity of the earlier mark, but as the

depiction of the single letter ‘a’ is not in any way particularly elaborated or adorned, it

is considered to be distinctive only to a degree lower than average. This mark cannot

be considered more similar to the contested sign as the one compared above, as this

earlier sign and the contested sign coincide only in the single letter ‘a’ and differ in

the entire other verbal element and hence the structure of the contested sign.

applicant are the costs of representation, which are to be fixed on the basis of the

maximum rate set therein.