OPPOSITION No B 2 634 072

J. Bünting Beteiligungs AG, Brunnenstr. 37, 26789 Leer / Ostfriesland, Germany (opponent), represented by Boehmert & Boehmert Anwaltspartnerschaft mbB – Patentanwälte Rechtsanwälte, Hollerallee 32, 28209 Bremen, Germany (professional representative)

a g a i n s t

Susana Monica Ade Soriano, Jianguoxi rd, 56 house 26 2on, Shangai 200020, People’s Republic of China (applicant), represented by Josep Maria Oyonate Melo, Av. Creu Roja 1-7, 2º-1ª, 08290 Cerdanyola del Vallès (Barcelona), Spain (professional representative)

On 10/05/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 634 072 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 and services of European Union trade mark application No 14 370 464, namely against all the goods in Classes 6, 11, 20, 21 and 24. The opposition is based on European Union trade mark registration No 12 107 371. 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 6: Metal building materials, in particular for constructing swimming baths and pools; Transportable buildings of metal, in particular in the form of summer houses and carports.

Class 11: Baking ovens and baking machines, electric ovens, microwave ovens, deep fat fryers, grills, electric cooking rings, electric waffle irons; Extractor hoods; Egg cookers, Yoghurt making machines; Electric toasters, Electric ice cream makers, Electric plate warmers; Electric preserving apparatus, electric dehydrating apparatus; Electric laundry dryers; Apparatus for making coffee, espresso and tea; Installations for freezing, Refrigerating cabinets, Water heaters; Electric room heating and room ventilation apparatus, Electric fan heaters, Infrared lamps (not for medical purposes), Air-conditioning apparatus, Electric humidifiers; Radiation apparatus for cosmetic purposes (included in class 11), sunbeds; Electric apparatus for hair care, namely electric hair dryers, electric hood dryers; especially electric lamps and luminaries; Lighting devices; Sauna heaters and parts and fittings therefor (included in class 11); Sauna stones; Cooling tubs for use with saunas and baths.

Class 20: Furniture; Mirrors [looking glasses]; Picture frames; Work benches, workshop equipment, namely furniture of metal, tool cabinets; Camping tables and chairs; Mattresses for camping, Sleeping bags for camping; Pillows and cushions; Beds and kennels for animals; Dog baskets, dog beds, cushions and couches; Dog kennels and shelters for cats; Beds for animals; Scratching trees for animals, in particular for cats; Transport cages and boxes for pets; Transport boxes for animals.

Class 21: Electric toothbrushes and mouthsprays; microwave dishes; Glassware and/or porcelain and/or earthenware, included in class 21, including ladles, buckets, infusion and aroma pans for use in saunas and baths; Feeding bowls, in particular portable water bowls made from waterproof material; Travel bowls; Folding bowls; Grooming and cleaning implements for animals, namely combs, brushes and sponges for animals; Toothbrushes for animals.

Class 24: Textiles and textile goods, not included in other classes; Bed covers; Table covers.

Class 35: Retailing, including by means of e-commerce, of household and kitchen appliances, small and large electric apparatus, lighting apparatus, lighting devices, apparatus for cosmetic purposes, heating and air-conditioning apparatus, furniture, saunas, sauna fittings, household fabrics, cutlery, crockery, swimming baths and pools.

The contested goods are the following:

Class 6: Metal hardware, including brass; Statues and works of art of common metals.

Class 11: Outdoor showers for bathing; Bathroom and kitchen fittings; Sanitary installations.

Class 20: Furniture; Trays, not of metal; Mirrors (silvered glass).

Class 21: Articles for toiletry and bath uses; Tableware, cookware and containers; Utensils for cosmetic purposes, ornaments of glass and porcelain, brushes, paint brushes, tissue box covers, buckets and ice pails, bowls (basins), soap dispensers, paper dispensers, brooms and brushes, sponges, flower bowls, flasks and toiletry cases, cases for carrying cosmetic equipment or equipment with a cosmetic, sanitary and personal hygiene function, holders for bathroom sets or functional elements for the bathroom, including holders for brushes, brooms, holders for dosage dispensers, brushes, tissues, paper dispensers.

Class 24: Kitchen and table linens; Textile goods, and substitutes for textile goods; Bed clothes.

As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services shall not be regarded as being similar or dissimilar to each other on the ground that they appear in the same or different classes under the Nice Classification.

The terms ‘including’ and ‘in particular’, used in the opponent’s and/or the applicant’s lists of goods and services indicate that the specific goods or services listed after these terms are only examples of items included in the category and that protection is not restricted to them. In other words, they introduce a non-exhaustive list of examples (see the judgment of 09/04/2003, T-224/01, Nu-Tride, EU:T:2003:107).

However, the term ‘namely’, used in the opponent’s list of goods to show the relationship of individual goods with a broader category, is exclusive and restricts the scope of protection only to the specifically listed goods.

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.

Contested goods in Class 6

The broad category of the contested metal hardware, including brass overlaps with the opponent’s metal building materials, in particular for constructing swimming baths and pools. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The broad category of the opponent’s earthenware, included in class 21, including ladles, buckets, infusion and aroma pans for use in saunas and baths in Class 21 includes statues and works of art made of earthenware which are highly similar to the contested statues and works of art of common metals. These goods have the same purpose, methods of use and share the same relevant public. These goods are also in competition and may have the same distribution channels and producers. Therefore, the opponent´s earthenware, included in class 21, including ladles, buckets, infusion and aroma pans for use in saunas and baths are considered highly similar to the contested goods.

Contested goods in Class 11

The broad category of the contested sanitary installations covers the opponent’s cooling tubs for use with saunas and baths. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested outdoor showers for bathing are highly similar to the opponent’s cooling tubs for use with saunas and baths. These goods can have a similar purpose and target the same relevant public; they may be used in combination and can share the same distribution channels and producers.

The opponent’s cooling tubs for use with saunas and baths are specific types of bathtubs. The broad category of the contested bathroom fittings may be necessary parts and components of the opponent’s goods. They may also be manufactured by the same undertakings and share the same distribution channels. Therefore, these goods are similar.

The opponent’s water heaters include water heaters for kitchen use. The broad category of the contested kitchen fittings may be necessary parts and components of the opponent’s goods (such as different fittings for water supply). They may also be manufactured by the same undertakings and can share the same distribution channels. Therefore, these goods are similar.

Contested goods in Class 20

The term furniture is identically contained in both lists of goods.

The broad category of the contested trays, not of metal includes boot trays [furniture]. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s furniture.

The contested mirrors (silvered glass) are identical to the opponent’s mirrors [looking glasses] although worded in a slightly different way.

Contested goods in Class 21

The broad category of the contested articles for toiletry includes the opponent’s electric toothbrushes and mouthsprays. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The broad category of the contested articles for bath uses includes the opponent’s grooming and cleaning implements for animals, namely combs, brushes and sponges for animals. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The broad category of the contested utensils for cosmetic purposes overlap with the opponent’s grooming and cleaning implements for animals, namely combs, brushes and sponges for animals. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested ornaments of glass and porcelain are respectively included in the opponent’s broad categories of glassware and/or porcelain, included in class 21, including ladles, buckets, infusion and aroma pans for use in saunas and baths. Therefore, these goods are identical.

The broad categories of the contested tableware, cookware and containers, buckets and ice pails, bowls (basins), flower bowls, flasks, soap dispensers, paper dispensers, holders for bathroom sets or functional elements for the bathroom, including holders for brushes, brooms, holders for dosage dispensers, brushes, tissues, paper dispensers include such goods made of glass, porcelain and/or earthenware which are also included in the opponent’s broad categories of glassware and/or porcelain and/or earthenware, included in class 21, including ladles, buckets, infusion and aroma pans for use in saunas and baths. Since the contested goods overlap with the opponent’s goods, they are considered identical.

The contested tissue box covers include ceramic tissue box covers and therefore overlap with the opponent’s earthenware, included in class 21 which also cover such goods. These goods are, therefore, considered identical.

The contested brushes, sponges include the opponent’s grooming and cleaning implements for animals, namely brushes and sponges for animals. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested toiletry cases, cases for carrying cosmetic equipment or equipment with a cosmetic, sanitary and personal hygiene function and the opponent’s electric toothbrushes and mouthsprays can share the same distribution channels, points of sale and producers and also target the same relevant public. Therefore, these goods are similar. 

As regards the contested brooms and brushes, according to Article 120(3) EUTMR, in cases of doubt, the text in the language of the Office in which the application for the EU trade mark was filed shall be authentic. In the present case, the contested application was filed in Spanish and the list of goods in Spanish is, therefore, the authentic version. The goods listed in Spanish corresponding to the English translation brooms and brushes are escobas y escobillas. The goods escobas y escobillas in Spanish refer to brooms and brushes for cleaning purposes and do not cover brushes for aesthetic or grooming purposes, such as hair brushes or brushes for animals.

The opponent’s ‘glassware, porcelain and earthenware’ are categories of products that include objects made of glass, of a ceramic material, or of baked clay. These materials can be used for goods in Class 21 such as tableware, cookware and containers and works of art made of these materials in Class 21 but are not used for brooms and brushes for cleaning purposes. Therefore, the products covered by the opponent’s ‘glassware, porcelain and earthenware’ as well as the opponent’s other goods in Class 21 which are toothbrushes, microwave dishes, different bowls and combs, brushes and sponges for animals all have a different nature and purpose to the contested brooms and brushes and the producers are not normally the same. In addition, none of these goods are complementary or in competition and although some of them may sometimes be sold in the same outlets, they are not found in the same sections. In view of this, the Opposition Division does not consider that the opponent’s goods in Class 21 are similar to the contested brooms and brushes (for cleaning purposes). The same reasoning apply to all the opponent’s goods in Classes 6, 11, 20 and 24 and the retail services covered in Class 35 which do not include retail services of brooms or brushes. Therefore, the contested brooms and brushes (escobas y escobillas) are dissimilar to all the opponent’s goods and services in Classes 6, 11, 20, 21, 24 and 35.

For the same reasons, the contested paint brushes are also dissimilar to all the opponent’s goods and services in Classes 6, 11, 20, 21, 24 and 35.

Contested goods in Class 24

The contested kitchen and table linens overlap with the opponent’s textile goods, not included in other classes which include kitchen and table linens made of textile. Therefore, they are identical.

Textile goods are identically contained in both lists of goods.

The contested bed clothes include as a broader category the opponent’s bed covers. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested substitutes for textile goods consist of goods made of non-textile materials to substitute textile goods, such as plastic table cloths. Therefore, although they have a different nature to textile goods, they can have the same purpose and method of use. These goods can also be in competition, share the same distribution channels and be sold in the same outlets to the same end users. Therefore, the contested substitutes for textile goods are considered at least similar to the opponent’s textile goods, not included in other classes.

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 found to be identical or similar to varying degrees are mostly directed at the public at large but also at business customers with specific professional knowledge or expertise in relation to some of the goods concerned (certain metal hardware goods and metal building materials).

As the quality of metal building materials and some of the more sophisticated metal hardware goods for construction purposes are of great importance for the safety and durability of buildings and strict regulations and requirements must be complied with, the degree of attention of the relevant public of these goods will be high.

Therefore, the degree of attention will vary from average to high.

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).

The element ‘LIVING’ in both signs is an English word meaning inter alia ‘the condition of being alive’, ‘the manner in which one conduct’s one’s life’ or ‘of, involving, or characteristic of everyday life’ (information extracted from Collins English Dictionary at www.collinsdictionary.com/dictionary/english/living). Therefore, although the word ‘LIVING’, as such, is not directly descriptive of any of the characteristics of the goods concerned, for the English-speaking part of the public in the EU, in relation to all the goods at issue, which are essentially different household goods for everyday life, furniture, goods for home decoration (including small items of metal hardware) and transportable buildings (in particular in the form of summer houses), it may be perceived as alluding to a particular style of living intended to be offered by the goods in question. Therefore, for this part of the public, the element ‘LIVING’ in both signs will be perceived as weak. However, for the non-English speaking part of the public, the verbal element ‘LIVING’ will not be associated with a meaning and is distinctive.

The earlier mark is a figurative mark consisting of a figurative element made up of grey circles in a shape reminiscent of a square featuring a lowercase ‘d’ letter in the middle made up of slightly larger black circles and underneath the verbal element ‘d-living.de’ in black lowercase letters in a rather standard type font. The figurative element of the earlier mark, the grey circles together with the ‘d’ letter made up of black circles, has no particular meaning in relation to the relevant goods and is, therefore, distinctive. In the verbal element ‘d-living.de’, the first part ‘d-’ will have no meaning and is therefore distinctive whereas the last part of that element, ‘.de’, is likely to be perceived as a mere reference to the country code top-level domain (ccTLD) of Germany and thus as having no trade mark significance within the earlier mark. Although the figurative element of the earlier mark is bigger than the verbal element underneath, the verbal element is still relatively big and also wider than the figurative element. Therefore, the earlier mark has no elements that could be considered clearly more dominant (visually eye-catching) than other elements.

The contested sign is a figurative mark consisting of a black uppercase ‘A’ letter contained in a black oval and the verbal elements ‘ADE’ and ‘LIVING’ featured over two lines below. The horizontal line of the ‘A’ letter featured in the black oval is made up of an ornamental figure that may be perceived as a stylised fleur-de-lis. The first verbal element, ‘ADE’, is represented in black, standard uppercase letters with a thin, almost imperceptible horizontal line immediately above the whole width of the letter ‘E’. Under the word ‘ADE’, the smaller, but perceptible, verbal element ‘LIVING’ is featured in black, uppercase letters. The thin black line above the letter ‘E’ in ‘ADE’ is likely to be seen merely as a slight stylisation of the letter ‘E’ in view of its horizontal position across the whole width of the letter without barely any space in between.  

The element comprising the stylised ‘A’ letter in an oval shape has no particular connection to the goods concerned and is distinctive. Although the verbal element ‘ADE’ may be perceived as a surname in Spain, it will have no meaning for most of the relevant public in the European Union, including in the English-speaking parts of the Union. In these parts of the relevant territory it may rather be perceived as an acronym or an invented name. Either way, it is distinctive. Although the ‘A’ letter in the oval shape and the verbal element ‘ADE’ are placed at the top and are bigger than the verbal element ‘LIVING’, the contested sign has no elements that could be considered clearly more dominant (visually eye-catching) than other elements.

It should also be borne in mind that consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right (and top to bottom), which makes the part placed at the left (or at the top) of the sign (the initial part) the one that first catches the attention of the reader.

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

In view of this, the Opposition Division will first examine the opposition in relation to the non-English speaking part of the public for which ‘LIVING’ will have no meaning and for which it will therefore have a normal distinctiveness.

Visually, the signs coincide in the word ‘LIVING’ which has no meaning for the non-English speaking part of the public. However, the word ‘LIVING’ in the earlier mark is contained in lowercase letters in the middle of the verbal element ‘d-living.de’ whereas it appears in uppercase letters as the smallest element at the bottom of the contested sign. In addition, the signs differ in the additional figurative element of grey circles and the black circles in the middle forming a lowercase ‘d’ letter at the top of the earlier mark, the additional ‘d-’ and ‘.de’ at the beginning and end of the earlier mark, the stylised ‘A’ letter featuring an ornamental figure or fleur-de-lis in an oval shape at the top of the contested sign and the additional, larger verbal element ‘ADE’ featured underneath which are also distinctive and the largest elements of the contested sign.  

The opponent argues that when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37). First, it should be noted that the Court also highlighted in paragraph 37 of that judgment that the figurative element in the contested mark concerned was placed below the verbal elements, i.e. in a less visible position. Moreover, in the present case, not only are the figurative elements of a considerable size and placed at the top of both signs but they also feature two different letters, ‘d’ and ‘A’ respectively, and an elaborate ornamental figure which may be perceived as a fleur-de-lis in the contested sign. Therefore, in the present case, even if consumers, in principle, usually tend to focus more on the verbal elements of a trade mark, the figurative elements placed at the top of both signs and containing different letters in visually rather striking stylisations will still have a strong visual impact in the perception of the signs by the consumers. Therefore, and in view of all the differences between the signs as outlined above and the position and relative importance within each sign of the only coinciding element ‘LIVING’, the overall visual impression they produce is very different.

Accordingly, the signs, considered as a whole, are only visually similar to a very low degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‛LIVING’, present in both signs. Even if the earlier mark also contains a ‛d’ letter at the top of the sign and the contested sign the ‛A’ letter, these letters are unlikely to be pronounced and will therefore barely have any impact (if at all) on the aural comparison of the signs. In addition, the last part of the verbal element of the earlier mark, ‛.de’, is also likely to be omitted when consumers refer to the earlier mark as it merely denotes a ccTLD. Therefore, this element will also barely have any impact (if at all) on the aural comparison of the signs. However, the signs differ in the pronunciation of the ‛d’ letter at the beginning of the element ‘d-living’ of the earlier mark and the pronunciation of the letters ‛ADE’ at the beginning of the contested sign which are also the parts that first catch the attention of the consumers.  

Therefore, the signs are aurally similar to an average degree.

Conceptually, the domain name indication ‘.de’ in the earlier mark merely suggests that the goods designated are offered on-line (13/12/2007, T-134/06, Pagesjaunes.com, EU:T:2007:387, § 63) and will not lead to a relevant conceptual difference. Therefore, neither of the signs has a relevant concept for the public in the non-English speaking part of the territory with the exception of the public in Spain that may perceive the verbal element ‘ADE’ in the contested sign as a surname. Since a conceptual comparison is not possible for the part of the public that will not perceive a relevant concept in the signs, the conceptual aspect does not influence the assessment of the similarity of the signs for this part of the public. For the Spanish-speaking part of the public, 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 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

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 at issue are identical, similar to varying degrees or dissimilar and the degree of attention of most of the relevant public is average but also high for some of the goods concerned.

In relation to the contested goods in Class 21 found to be dissimilar to all the opponent’s goods and services, as a degree of similarity between the goods or services is a necessary condition for the application of Article 8(1)(b) EUTMR, the opposition based on this article and directed at these goods cannot be successful.

Both marks coincide in the verbal element ‛LIVING’ but differ in the different elements placed at the top of the signs in different stylisations, the additional ‛d-’ and ‛.de’ at the beginning and end of the verbal element in the earlier mark and the additional word ‛ADE’ featured in the middle of the contested sign.  

The signs are visually similar to a very low degree, aurally similar to an average degree and the conceptual aspect either does not influence the assessment of the similarity of the signs for most of the non-English speaking part of the public or the signs are otherwise not conceptually similar for the Spanish-speaking part.

It should also be taken into account that the relevant goods in Classes 11, 20, 21 and 24 and the statues and works of art of common metals in Class 6 are products that customers can either choose which to buy themselves or be assisted by the sales staff and that are commonly purchased in establishments where goods are arranged on shelves or on the sales floors and consumers are guided by the visual impact of the mark they are looking for.

In view of this, although the signs coincide aurally in the sound of the word ‛LIVING’ and have an average degree of aural similarity for the reasons set out in section c) above and even if the ‛.de’ element at the end of the earlier mark will be largely disregarded by consumers, the incidental inclusion of the word ‛LIVING’ in different positions and bearing in mind their relative importance within each sign, is not sufficient to outweigh the lack of conceptual similarity and, in particular, the very low degree of visual similarity between them, in view of their significant visual differences as also explained above. These differences between the signs and their different additional distinctive elements will not go unnoticed by the average consumers, even if displaying only an average degree of attentiveness, who will also primarily be guided by the visual impact of the mark they are looking for in relation to these goods.

As a result, the relevant public is not likely to believe that the goods concerned in Classes 11, 20, 21 and 24 and the statues and works of art in Class 6, even those that are identical, sold under the signs in dispute originated from the same undertaking, or economically-linked undertakings. Therefore, there is no likelihood of confusion on the part of the non-English-speaking public in relation to any of these goods.

As regards the remaining contested goods in Class 6, metal hardware, including brass, these goods are not necessarily likely to be purchased primarily on a visual basis. However, the coinciding relevant public will display a high degree of attention when it is looking to acquire the relevant goods. Therefore, and taking into account the differences between the signs, the relevant public in relation to the remaining goods in Class 6 will also be able to clearly distinguish the marks in dispute and will perceive them as coming from different undertakings. Consequently, there is no likelihood of confusion on the part of the non-English-speaking public in relation to the remaining goods in Class 6 either.  

This absence of a likelihood of confusion in relation to all the contested goods applies equally to the English-speaking part of the public for which the semantic of the element ‘LIVING’ will be understood. This is because, even if the signs would be conceptually similar for this part of the public to the extent that they are both associated with the meaning of ‘LIVING’, for the reasons set out above, this word is weak and will merely be perceived as alluding to a particular style of living intended to be offered for the relevant goods under the otherwise completely different signs. Therefore, despite the coincidence in the weak element ‘LIVING’ in both signs, in view of their different additional distinctive verbal elements (a single ‛d’ letter as opposed to the word ‛ADE’) and their different distinctive figurative elements (the square-like shape and ‛d’ letter made up of grey and black circles as opposed to the uppercase ‛A’ letter with an ornamental figure or fleur-de-lis in an oval shape), the English-speaking part of the public will also be able to clearly distinguish the marks in dispute and will also perceive them as coming from different undertakings in relation to all the contested goods.

Consequently, as there is no likelihood of confusion in any part of the territory covered by the earlier mark in relation to any of the contested goods, 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

Anunciata SEVA MICO

Sam GYLLING

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 shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.