OPPOSITION No B 2 747 163
Evo Banco S.A.U., Serrano, 45 1ª planta, 28001 Madrid, Spain (opponent),
represented by Herrero & Asociados, Cedaceros, 1, 28014 Madrid, Spain
a g a i n s t
Dongguan Beevo Industrial Co., Ltd, No.1, Jinlong Road, Jinyuling Industrial Zone,
Sangyuan, Dongcheng District, Dongguan, People’s Republic of China (applicant),
represented by Arcade & Asociados, C/ Isabel Colbrand 6 – 5ª planta, 28050
Madrid, Spain (professional representative).
On 12/10/2017, the Opposition Division takes the following
1. Opposition No B 2 747 163 is rejected in its entirety.
2. The opponent bears the costs, fixed at EUR 300.
The opponent filed an opposition against all the goods of European Union trade mark
application No 15 390 263 for the figurative mark . The opposition is
based on, inter alia, European Union trade mark registration No 14 963 946 for the
word mark ‘EVO’. The opponent invoked Article 8(1)(b) EUTMR.
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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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.
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.
Decision on Opposition No B 2 747 163 page: 2 of 5
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
opponent’s European Union trade mark registration No 14 963 946.
a) The goods
The goods on which the opposition is, inter alia, based are the following:
Class 9: Recorded data programs, Computer software (recorded programs),
Computer programs (software); Computer operating programs, recorded; Magnetic
card; Identity cards, magnetic; Cards with microprocessors (chips), Smart cards with
microprocessors; Cards for integrated circuits or for microprocessors; Apparatus for
recording, transmission and reproduction of sound or images; Magnetic data carriers;
Mechanisms for coin-operated apparatus; Cash registers, calculating machines, data
processing equipment and computers; Fire-extinguishing apparatus; none of the
aforesaid goods intended for use in vehicles or relating to vehicles; all the
aforementioned goods in relation to bank, financial and insurance goods and
The contested goods are the following:
Class 9: Earphones; headphones.
The contested earphones; headphones are included in the broad category of the
opponent’s apparatus for reproduction of sound. Therefore, they are identical.
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 found to be identical are directed at the public at
large. The degree of attention is average.
c) 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
Decision on Opposition No B 2 747 163 page: 3 of 5
mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95,
Sabèl, EU:C:1997:528, § 23).
The earlier mark is a word mark. In the case of word marks, it is the word as such
that is protected and not its written form. Therefore, it is irrelevant whether they are
presented in upper or lower case letters, or in a combination thereof.
The verbal elements, ‘EVO’ of the earlier mark and ‘beevo’ of the contested sign,
have no meaning for the majority of the relevant public and are, therefore, distinctive.
The figurative element in the contested sign might be perceived by part of the
relevant public as a stylised single letter ‘b’ (and in part this is because the following
verbal element also starts with a letter ‘b’) and/or as a sign indicating that the goods
are ‘wireless’, which is weak in relation to the relevant goods. The stylisation of the
word ‘beevo’ in the contested sign is minimal and, therefore, it has little impact on the
overall perception of the mark.
The contested sign has no element that could be considered clearly more dominant
than other elements.
Visually, the signs coincide in the letters ‘**EVO’. However, they differ in the first two
letters ‘be’ of the contested sign. 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, which makes the part placed at the left of the sign (the initial part) the one
that first catches the attention of the reader. As the verbal elements of the marks are
meaningless, there is no reason to assume that the relevant public will visually split
the marks and will dissect the earlier mark ‘evo’ in the contested sign. The verbal
elements of the marks will be perceived visually as a whole. The marks also have a
different length, the earlier mark consists of three letters and is therefore a short mark
while the contested sign is longer and consists of five letters. The length of the signs
may influence the effect of the differences between them. The shorter a sign, the
more easily the public is able to perceive all of its single elements. Therefore, in short
words, small differences may frequently lead to a different overall impression. In
contrast, the public is less aware of differences between long signs. Finally, the
marks differ in the figurative element, weak for part of the public, and the slight
stylisation of the contested sign.
Taking into account the fact that the marks have different lengths and different
beginnings, as well as the fact that both verbal elements will be perceived as a
whole, 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 for a significant part of the
relevant public in the second syllable ‘VO’, present identically in both signs. The
pronunciation differs in the first syllables, ‘E’ in the earlier mark and ‘BEE’ in the
contested sign, where only the first letters will create a difference in the
Taking into account the aural difference at the beginning of the signs, where the
relevant public will be likely to focus its attention, the signs are aurally similar to an
Conceptually, although the signs as a whole do not have any meaning for the public
in the relevant territory, the figurative element included in the contested sign, will be
associated with the meaning explained above, namely the single letter ‘b’ and/or the
Decision on Opposition No B 2 747 163 page: 4 of 5
‘wireless sign’ which is weak in relation to the relevant goods. To that extent, the
signs are conceptually 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.
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 in question from the perspective of the public in the
relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as
e) Global assessment, other arguments and conclusion
The appreciation of likelihood of confusion on the part of the public depends on
numerous elements and, in particular, on the recognition of the earlier mark on the
market, the association which can be made with the registered mark, the degree of
similarity between the marks and between the goods or services identified. It must be
appreciated globally, taking into account all factors relevant to the circumstances of
the case (22/06/1999, C-342/97, ‘Lloyd Schuhfabrik’, EU:C:1999:323, § 18;
11/11/1997, C-251/95, ‘Sabèl’, EU:C:1997:528, § 22).
The conflicting goods are identical. The earlier mark has a normal degree of
distinctiveness. The relevant public is the public at large and the level of attention is
The signs are visually similar to a low degree, aurally similar to an average degree
and conceptually not similar.
Despite some similarities between the marks, it is considered that the differences are
clearly perceivable and sufficient to exclude any likelihood of confusion between the
Although that the earlier mark is fully included in the contested sign, the contested
sign has two additional letters at its beginning which create a new fanciful word which
will not be dissected. The element ‘EVO’ does not appear in the contested sign as an
element with an independent distinctive character but it is incorporated into the
distinctive element ‘beevo’.
Furthermore, the signs have different lengths. The earlier mark is a short mark
consisting of three letters while the contested sign is composed of five letters and a
figurative element. Due to the different lengths, the relevant public will easily perceive
the differences between the marks.
Decision on Opposition No B 2 747 163 page: 5 of 5
Finally, the differences between the marks reside in their beginnings, which will help
the relevant public to distinguish between the marks as those are the first elements
the consumer focuses on.
Considering all the above, even taking into account that the goods are identical, there
is no likelihood of confusion on the part of the public. Therefore, the opposition must
The opponent has also based its opposition on Spanish trade mark registration
No 3 592 941 for the word mark ‘EVO’. Since this mark is identical to the one that
has been compared and covers a narrower scope of goods and services, the
outcome cannot be different. Therefore, no likelihood of confusion exists.
According to Article 109(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 Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3)
and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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
Carlos MATEO PÉREZ Saida CRABBE Ric WASLEY
According to Article 67 EUTMR, any party adversely affected by this decision has a
right to appeal against this decision. According to Article 68 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 for
appeal must be filed within four months of the same date. The notice of appeal will be
deemed to have been 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 Article 109(8) EUTMR
(former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be
filed within one month of the date of notification of this fixation of costs and will be
deemed to have been filed only when the review fee of EUR 100 (Annex I A(33)
EUTMR) has been paid.