OPPOSITION No B 2 464 512

Häfele GmbH & Co KG, Adolf-Häfele-Str. 1, 72202 Nagold, Germany (opponent), represented by Kohler Schmid Möbus Patentanwälte Partnerschaftsgesellschaft mbB, Gropiusplatz 10, 70563 Stuttgart, Germany (professional representative)

a g a i n s t

Ömer Atiker Makine Metal Insaat Ve Yakit Sistemleri Ithalat Ihracat Anonim Sirketi, 1. Organize Sanayi Bölgesi, Atabey Sokak, 5/A, Selçuklu – Konya 42300, Turkey (applicant), represented by Ahmet Yildirim, Arndtstr. 19, 30167 Hannover, Germany (professional representative).

On 06/09/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 464 512 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against some of the goods of European Union trade mark application No 13 205 679 , namely against some of the goods in Classes 6, 7 and 9. The opposition is based on European Union trade mark No 4 421 046 . 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

The goods on which the opposition is based are, inter alia, the following:

Class 6: Building materials, fittings for furniture, buildings, constructions, connections, doors, sliding doors and decorative purposes as well as hinges for furniture, parts therefor and fasteners of common metals; guiderails for drawers and suspension files; fittings and parts and fittings therefor, of common metal; bolts, plugs, screws, picture hooks, picture rails, profile strips, form strips, decorative strips; toolboxes and cases of metal, whether empty or containing various tools, including those with wheeled undercarriages or parts and with inset compartments; locks, doorhandles and doorknobs and lock cases.

Class 7: Electrical powered tools, motorised hand drills and the bits, slides, and screws therefor, drilling units and depth stops.

Class 9: Drill and stop gauges.

The contested goods are the following:

Class 6: Metal building materials; ironmongery, small items of metal hardware; pipes and tubes of metal.

Class 7: Machine tools to process and give shape to wood, metal, glass, plastic materials and mined materials.

Class 9: Surveying, measuring, signalling, checking (supervision) instruments.

Some of the contested goods are identical to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods 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 assumed to be identical are directed at the public at large and at professional customers with specific professional knowledge or expertise.

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price, because consumers tend to pay more attention to the specifics of the goods and the trade marks under which they are sold when the goods are relatively rare and/or expensive and when the consumers are not used to purchasing them on a regular basis. At least some of the goods in question are tools, which can be expected to be purchased rarely, and some of them may be rather expensive.

3. 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).

Both signs are figurative marks. The earlier mark depicts a letter ‘A’ with two dots at the top, one on each side, in a bold red rather standard typeface. Some languages, such as Finnish and Swedish, include a letter ‘Ä’ in their alphabets. Therefore, a part of the relevant public will perceive the earlier mark as a letter ‘Ä’ instead of an ‘A’. On the other hand, a part of the relevant public, in whose languages the letter ‘Ä’ does not exist, such as the English-speaking public, may perceive the sign as the letter ‘A’ and the two dots as merely decorative elements.

The contested sign depicts a bold red stylised letter ‘A’.

Visually, the signs coincide in their colour and in that they could both be perceived as a letter ‘A’. However, even if both marks are perceived as a letter ‘A’ they differ in their stylisations. Whereas the earlier mark is depicted in a rather standard typeface, in the contested sign the left leg of the letter ‘A’ is a slanted line pointing to the left and the right leg is a vertical line. There is also a space between the left leg and the horizontal line in the middle.

Therefore, the signs are visually similar to a low degree.

Aurally, if both signs are perceived as the letter ‘A’, their pronunciation will be identical irrespective of the different pronunciation rules in different parts of the relevant territory. However, the part of the relevant public that perceives the earlier mark as the letter ‘Ä’ will pronounce the signs differently.

Therefore, for a part of the relevant public the signs are aurally identical and for the rest of the relevant public, as the signs do not coincide aurally in any element, the signs are not aurally similar.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Insofar as part of the public perceives both signs as the letter ‘A’, the signs are conceptually identical. For the rest of the public, the signs convey different meanings and are, therefore, not 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 signs are visually similar to a low degree. Aurally and conceptually, the signs are identical for a part of the relevant public and not similar for the rest of the relevant public. The goods are assumed to be identical.

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).

In cases of conflicting signs containing the same single letter, the visual comparison is of decisive importance, as these signs are usually aurally and conceptually identical.

The similarities between the signs in the present case are limited to their colour, which can be deemed ancillary, and the fact that both signs may be perceived as the letter ‘A’.

Considering this, the way the letter appears in each sign is determinant. The letter is depicted in very different manners in the two signs. As mentioned above, the signs are visually similar to only a low degree, and – in spite of the assumed identity between the goods – this is not sufficient to find a likelihood of confusion even for the part of the relevant public that will perceive both signs as the letter ‘A’. This finding will apply all the more to the remaining part of the relevant public, which does not perceive both signs as the letter ‘A’, as for this part of the public neither aural nor conceptual identity or similarity exists between the signs.

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

Janja FELC

Birgit Holst FILTENBORG

Ana MUÑIZ RODRIGUEZ

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.