Brave Paper | Decision 2565979 – Heinrich Bauer Verlag KG v. KAMUSIŃSKI PROPERTIES ARKADIUSZ KAMUSIŃSKI

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OPPOSITION No B 2 565 979

Heinrich Bauer Verlag KG, Burchardstraße 11, 20095 Hamburg, Germany (opponent), represented by Claudia-Dorothee Philipp, Heinrich Bauer Verlag KG, Burchardstraße 11, 20077 Hamburg, Germany (employee representative)

a g a i n s t

Stirlinx Arkadiusz Kamusiński, ul. Moliera 8 lok. 23, 00-076 Warszawa, Poland (applicant), represented by Joanna Kluczewska-Strojny, Farysa 29e, 01-971, Warszawa, Poland (professional representative).

On 11/01/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 565 979 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 13 774 211 namely against all the goods and services in Classes 16 and 35. The opposition is based on the following earlier rights:

  1. German trade mark registration No 302 010 010 084 for the word mark ‘BRAVO’;
  2. German trade mark registration No 302 008 060 536 for the word mark ‘BRAVO Girl’;
  3. German trade mark registration No 302 009 032 434 for the word mark ‘BRAVO Story’;
  4. German trade mark registration No 302 014 056 848 for the word mark ‘BRAVO HITS’;
  5. German trade mark registration No 302 009 010 595 for the word mark ‘BRAVO Sport’
  6. German trade mark registration No 302 014 061 334 for the word mark ‘BRAVO Tube Stars’.

The opponent invoked Article 8(1)(b) and 8(5) EUTMR in relation to the earlier trade marks (1) to (5) and Article 8(1)(b) EUTMR in relation to the earlier trade mark (6).

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 inter alia the following:

German trade mark registration No 302 010 010 084 for the word mark ‘BRAVO’

Class 9:        Recorded and unrecorded sound, image and data carriers of all kinds, included in class 9 (except unexposed films), in particular tapes, cassettes, compact discs, video discs, records, DAT tapes, audio and video tapes, diskettes , CD-ROM, digital versatile discs (DVD's); apparatus for recording, transmission or reproduction of sound, images and data; calculating machines, data processing equipment and computers; computer software [recorded or downloadable]; glasses [Optics], spectacle cases; electronic publications [downloadable]

Class 16:        Paper, cardboard (carton) and goods made from these materials (included in class 16), in particular paper napkins, paper handkerchiefs, toilet paper, household paper and paper towels; printed matter, in particular magazines, newspapers, books, catalogs and brochures; bookbinding material; photographs; instructional and teaching material (except apparatus); stationery; posters; decals; trading cards [stationery]; adhesives for stationery or household purposes; artists' materials; brush; typewriters and office requisites (except furniture); plastic materials for packaging, included in class 16; printers' type; printing blocks

Class 35:        Advertising research, namely sales, market research and public opinion; For advertising purposes distribution of goods, especially of leaflets, prospectuses, printed matter and samples; Arranging advertising contracts for third parties; Advertising, in particular radio, television, cinema, print, videotext and teletext advertising; PR [public  relations]; Preparation of marketing plans; Rental of advertising material; Rental of advertising films; Rental of  advertising space, including in electronic form on the Internet; Business management; Business administration; Office functions; Systemization and compilation of data in computer databases; Updating of data in computer databases, administrative processing of purchase orders for goods and services (including teleshopping), in particular order taking, order processing, order routing, handling of complaints and demands offer and placement of orders; Provision of information (information) and consultancy for consumers in trade and business affairs [consumer advice]; Publication of printed matter for advertising purposes

German trade mark registration No 302 008 060 536 for the word mark ‘BRAVO Girl’

Class 9:        Recorded and unrecorded sound, image and data carriers of all kinds, included in class 9 (except unexposed films), in particular tapes, cassettes, compact discs, video discs, records, DAT tapes, audio and video discs, audio – and video cassettes, audio and video clips, and audio and video tapes, floppy disks, CD-ROMs, digital versatile discs (DVD); Apparatus for recording, transmission or reproduction of sound, images and data; Calculating machines, data processing equipment and computers; Computer software [recorded or downloadable]; Glasses [optics]; Spectacle cases; electronic publications [downloadable

Class 16:        Paper, cardboard (carton) and goods made from these materials (included in class 16), in particular paper napkins, paper handkerchiefs, toilet paper, household paper and paper towels; printed matter, in particular magazines, newspapers, books, catalogs and brochures; bookbinding material; photographs; instructional and teaching material (except apparatus); stationery; posters; decals; trading cards [stationery]; adhesives for stationery or household purposes; artists' materials; brush; typewriters and office requisites (except furniture); plastic materials for packaging, included in class 16; printers' type; printing blocks

Class 35:        Advertising research, namely sales, market research and public opinion; For advertising purposes distribution of goods, especially of leaflets, prospectuses, printed matter and samples; Arranging advertising contracts for third parties; Advertising, in particular radio, television, cinema, print, videotext and teletext advertising; PR [public relations]; Preparation of marketing plans; Rental of advertising material; Rental of advertising films; Rental of advertising space, including in electronic form on the Internet; Business management; Business administration; Office functions; Systemization and compilation of data in computer databases; Updating of data in computer databases; administrative processing of purchase orders for goods and services (including teleshopping), in particular, order taking, order processing, order routing, handling of complaints and demands offer and placement of orders; Provision of information (information) and consultancy for consumers in trade and business affairs [consumer advice]; Publication of printed matter for advertising purposes

German trade mark registration No 302 009 032 434 for the word mark ‘BRAVO Story’

Class 9:        Recorded and unrecorded sound, image and data carriers of all kinds, included in class 9 contained (except unexposed films), in particular tapes, cassettes, compact discs, video discs, records, DAT tapes, audio and video discs, audio – and video cassettes, audio and video clips, and audio and video tapes, floppy disks, CD-ROMs, digital versatile discs (DVDs); Apparatus for recording, transmission or reproduction of sound, images and data; Calculating machines, data processing equipment and computers; Computer software [recorded or downloadable]; Glasses [Optics], spectacle cases; electronic publications [downloadable]

Class 16:        Paper, cardboard (carton) and goods made from these materials (included in class 16), in particular paper napkins, paper handkerchiefs, toilet paper, household paper and paper towels; Printed matter, in particular magazines, newspapers, books, catalogs and brochures; Bookbinding material; Photographs; Instructional and teaching material (except apparatus); Stationery; Posters; Decals; Trading cards [stationery]; Adhesives for stationery or household purposes; Artists' materials; Brush; Typewriters and office requisites (except furniture); Plastic materials for packaging, included in class 16; Printers' type, printing blocks

Class 35:        Advertising research, namely sales, market research and public opinion; For advertising purposes distribution of goods, especially of leaflets, prospectuses, printed matter and samples; Arranging advertising contracts for third parties; Advertising, in particular radio, television, cinema, print, videotext and teletext advertising; PR [public relations]; Preparation of marketing plans; Rental of advertising material; Rental of advertising films; Rental of advertising space, including in electronic form on the Internet; Business management; Business administration; Office functions; Systemization and compilation of data in computer databases; Updating of data in computer databases; administrative processing of purchase orders for goods and services (including teleshopping), in particular, order taking, order processing, order routing, handling of complaints and demands offer and placement of orders; Provision of information (information) and consultancy for consumers in trade and business affairs [consumer advice]; Publication of printed matter for advertising purposes

German trade mark registration No 302 014 056 848 ‘BRAVO HITS’

Class 9:        Recorded and unrecorded sound, image and data carriers of all kinds, included in class 9 contained [except unexposed films], in particular sound tapes, cassettes, CDs, video discs, records, DAT tapes, audio and video discs, audio – and video cassettes, audio and video films, audio and video tapes, diskettes, CD-ROMs, digital versatile discs [DVDs]; digital recording media; apparatus for recording, transmission or reproduction of sound, images and data; calculating machines; hardware for data processing; computer; computer software [recorded or downloadable]; apps [software], namely applications for smart phones, tablet PCs, e-readers and other mobile or stationary IT equipment [downloadable]; electronic publications [downloadable]; audio files; music files for downloading; image files; glasses [optics]; eyeglass cases

Class 16:        Paper, cardboard [box] and goods made from these materials [included in class 16], namely, paper napkins, paper towels, toilet paper, kitchen paper and paper towels, paper posters, flags of paper; printed matter, especially magazines, newspapers, books, catalogs and brochures; bookbinding material; photographs [deductions]; instructional and teaching materials [except apparatus]; stationery; posters; decals; trading cards [stationery]; adhesives for stationery or household purposes; artists' materials; brushes; typewriters; office items [other than furniture]; plastic materials for packaging, included in class 16; printers' type; printing blocks

Class 35:        Advertising research, namely sales, market and opinion research; promotional distribution of goods, especially leaflets, brochures, printed matter and samples; arranging advertising contracts, for others; advertising, in particular radio, television, cinema, print, videotext and teletext advertising; PR [public relations]; marketing; creation of marketing concepts; rental of advertising material; rental of advertising films; rental of advertising space, including in electronic form on the internet; managing directors; business administration; office functions; systemization and compilation of data in computer databases; updating of data in computer databases; administrative processing of purchase orders for goods and services [for teleshopping offers], in particular order acceptance, order processing, forwarding of orders, processing complaints and inquiries and offer mediation of orders; provision of information [information] and consultancy for consumers in trade and business affairs [consumer advice]; publication of printed matter for advertising purposes

German trade mark registration No 302 009 010 595 for the word mark ‘BRAVO Sport’

Class 9:        Recorded and unrecorded sound, image and data carriers of all kinds included in class 9 (except unexposed films), in particular tapes, cassettes, compact discs, video discs, records, DAT tapes, audio and video tapes diskettes , CD-ROM, digital versatile discs (DVDs); Apparatus for recording, transmission or reproduction o sound, images and data; Calculating machines, data processing equipment and computers; Computer softwar [recorded or downloadable]; Glasses [Optics], spectacle cases; electronic publications [downloadable]

Class 16:        Paper, cardboard (carton) and goods made from these materials (included in class 16), in particular paper napkins, paper handkerchiefs, toilet paper, household paper and paper towels; Printed matter, in particular magazines, newspapers, books, catalogs and brochures; Bookbinding material; Photographs; Instructional and teaching material (except apparatus); Stationery; Posters; Decals; Trading cards [stationery]; Adhesives for stationery or household purposes; Artists' materials; Brush; Typewriters and office requisites (except furniture); Plastic materials for packaging, included in class 16; Printers' type; Printing blocks

Class 35:        Advertising research, namely sales, market research and public opinion; For advertising purposes distribution of goods, especially of leaflets, prospectuses, printed matter and samples; Arranging advertising contracts for third parties; Advertising, in particular radio, television, cinema, print, videotext and teletext advertising; PR [public relations]; Preparation of marketing plans; Rental of advertising material; Rental of advertising films; Rental of advertising space, including in electronic form on the Internet; Business management; Business administration; Office functions; Systemization and compilation of data in computer databases; Updating of data in computer databases, administrative processing of purchase orders for goods and services (including teleshopping), in particular order taking, order processing, order routing, handling of complaints and demands offer and placement of orders; Provision of information (information) and consultancy for consumers in trade and business affairs [consumer advice]; Publication of printed matter for advertising purpose

German trade mark registration No 302 014 061 334 for the word mark ‘BRAVO Tube Stars’

Class 9:        Recorded and unrecorded sound, image and data carriers of all kinds, included in class 9 contained [except unexposed films], in particular sound tapes, cassettes, CDs, video discs, records, DAT tapes, audio and video discs, audio – and video cassettes, audio and video films, audio and video tapes, diskettes, CD-ROMs, digital versatile discs [DVDs] and other digital recording media; recorded data; Apparatus for recording, transmission or reproduction of sound, images and data; Calculating machines; Hardware for data processing; Computer; Computer software [recorded or downloadable]; Apps [software], namely applications for smart phones, tablet PCs, e-readers and other mobile or stationary IT equipment [downloadable]; electronic publications [downloadable]; Audio files, music files, and image files for downloading; Glasses [optics], spectacle cases

Class 16:        Paper, cardboard [box] and goods made from these materials [included in class 16], namely, paper napkins, paper towels, toilet paper, paper towels and paper towels; Disposable paper products; Printed matter, especially magazines, newspapers, books, catalogs and brochures; Bookbinding material; Photographs [Deductions]; Instructional and teaching materials [except apparatus]; Stationery; Posters; Decals; Trading cards [stationery]; Adhesives for stationery or household purposes; Decoration and art supplies materials and tools; Brushes; Typewriters and office requisites [other than furniture]; Bags, and items for packaging, storage and Einpack-purposes of paper, cardboard and plastic; Printers' type; Printing blocks

Class 35:        Advertising research, namely sales, market and opinion research; Promotional distribution of goods, especially leaflets, brochures, printed matter and samples; Arranging advertising contracts, for others; Advertising, in particular radio, television, cinema, print, videotext and teletext advertising; PR [public relations]; Marketing; Creation of marketing concepts; Rental of advertising material; Rental of advertising films; Rental of advertising space, including in electronic form on the internet; Managing Directors; Business administration; Office functions; Systemization and compilation of data in computer databases; Updating of data in computer databases; administrative processing of purchase orders for goods and services [for teleshopping offers], in particular order acceptance, order processing, forwarding of orders, processing complaints and inquiries and offer mediation of orders; Provision of information [Information] and consultancy for consumers in trade and business affairs [consumer advice]; Publication of printed matter for advertising

The contested goods and services are the following:

Class 16:        Paper; printed matter; prospectuses; textbooks; books; magazine; newsletters, periodicals; newspapers, printed publications; albums; booklets; notebooks; diaries, desk calendars, wall calendars, multi-page calendars; notebooks, packaging of cardboard, paper and plastic, stationery, fountain pens, ballpoint pens, pencils, markers, pens, marking pens, rubber erasers, rulers.

Class 35:        Advertising, promotion and sale of goods, including electronic versions of newspapers, paper, printed matter, prospectuses, manuals, books, magazines, periodicals, bulletins, newspapers, publications, albums, pamphlets, writing or drawing books, diaries, desk calendars, wall calendars, multi-page calendars, notebooks, packaging of cardboard, paper and plastic, stationery.

Some of the contested goods and services are identical or similar to goods and services in Classes 16 and 35 on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above. The examination of the opposition will proceed as if all the contested goods and services were identical to those in Classes 16 and 35 of the earlier marks.

  1. 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 assumed to be identical are directed at the public at large and at a professional public with specific professional knowledge or expertise. The degree of attention may vary from average to high, depending on the price, nature and conditions of the purchased/contracted goods and services (for example in case of very expensive pens or some specialized advertising services the attention of the relevant public will be high whereas in case of other goods in class 16 which are inexpensive and are purchased on a regular basis, the attention will be average).

  1. The signs

  1. BRAVO
  2. BRAVO Girl
  3. BRAVO Story
  4. BRAVO HITS
  5. BRAVO Sport
  6. BRAVO Tube Stars

BRAVE PAPER

Earlier trade marks

Contested sign

The relevant territory is Germany.

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).

All the marks in question are word marks. The earlier marks (2) (3) (4) (5) and the contested sign consist of two verbal elements, the earlier mark (1) of one and the earlier mark (6) of three verbal elements.

Bearing in mind that in the case of word marks it is the word as such that is protected and not its written form, it is not relevant if the marks are written in upper or lower case.

The verbal element ‘BRAVO’ will be perceived as an exclamation of applause and recognition; Well done! Beautiful! (http://www.duden.de/suchen/dudenonline/bravo).

The elements ‘Girl’, ‘Story’, ‘Hits’, ‘Sport’ and ‘Stars’ of the earlier marks will be understood by the German consumers as these words also exist as such in German and therefore will be associated with their relevant meanings, namely:

As regards the element ‘Tube’ of the earlier mark (6), if read in English, it means i.a, television (coll.) (http://dictionary.cambridge.org/dictionary/english/tube). Since it appears together with the word ‘Stars’ and since nowadays almost everybody knows ‘YouTube’ a popular video sharing website, it is likely that a part of the relevant public will understand this word this way. Otherwise, it will be either not understood or perceived as a German word, meaning a tubular container with screw closure for paste-like substances http://www.duden.de/suchen/dudenonline/tube).  

Bearing in mind all respective goods and services in Classes 16 and 35, these terms would be in general perceived as descriptive of, or at least allusive to, the subject matter or the intended purpose of some of these goods and services. Hence, the elements ‘Girl’, ‘Sport’, ‘Story’ and the expression ‘Tube Stars’, if perceived with its English meaning ‘television stars’, are considered weak in relation to, especially printed matter, in particular magazines, newspapers, books, catalogs and brochures in Class 16 and advertising, in particular radio, television, cinema, print, videotext and teletext advertising; publication of printed matter for advertising purposes in Class 35. The element ‘HITS’ is considered in connection to printed matter, especially magazines, newspapers, books, catalogs and brochures in Class 16 and advertising, in particular radio, television, cinema, print, videotext and teletext advertising; publication of printed matter for advertising purposes in Class 35. The distinctiveness of these terms must be however be seen as normal in relation to the remaining relevant goods and services.  

On the other hand, the element ‘PAPER’ of the contested sign is an English word, meaning inter alia ‘1. material manufactured in thin sheets from the pulp of wood or other fibrous substances, used for wiring, drawing, or printing on, or as wrapping material; 2. a newspaper’. As it is a word belonging to basic English vocabulary and due to its similarity with the corresponding word in German ‘Papier’, its meaning 1 will be understood by the relevant public. Bearing in mind the nature and purpose of the majority of relevant goods and services, (goods made of paper, services provided in connection to those) this element is considered as non-distinctive in relation to paper and weak in relation to printed matter; prospectuses; textbooks; books; magazine; newsletters, periodicals; newspapers, printed publications; albums; booklets; notebooks; diaries, desk calendars, wall calendars, multi-page calendars; notebooks, packaging of cardboard, paper in Class 16 as well as in relation to advertising, promotion and sale of paper, printed matter, prospectuses, manuals, books, magazines, periodicals, bulletins, newspapers, publications, albums, pamphlets, writing or drawing books, diaries, desk calendars, wall calendars, multi-page calendars, notebooks, packaging of cardboard, paper in Class 35. However, when it comes to the remaining goods and services in question, this term does not describe their nature, characteristics or the intended purpose. Therefore, the distinctiveness of this term must be seen as normal in relation to those.

The verbal element ‘BRAVE’ will be perceived either in English or in German. If perceived as an English word, it will be understood as showing no fear of dangerous or difficult things (http://dictionary.cambridge.org/dictionary/english/brave). If however, it will be perceived as a German word, the meaning of this adjective is good, dutiful, well-behaved. None of those meanings have any clear relevance for the goods and services in question. 

None of the marks at issue have an element that could be considered more dominant (visually eye-catching) than other elements.

Visually, the earlier mark (1) and the contested sign are similar to the extent that they coincide in the sequence of the letters ‘B-R-A-V’. However, the earlier mark ends with the letter ‘O’ whereas the first word element of the contested sign ends with the letter ‘E’. Furthermore, the contested sign includes the verbal element ‘PAPER’ which has no counterpart in earlier mark. Hence they differ in their length and structure. The remaining five earlier marks are similar to the contested sign insofar as they all coincide in the sequence of the letters ‘B-R-A-V’. On the other hand, they differ in the last letter of their first verbal elements and in their respective additional verbal elements.

In any case, the coincidence limited to the first four letters of the marks in question is not overwhelmingly decisive when comparing the signs as a whole. In particular, considering that these four letters do not constitute an independent element in either of the signs. Furthermore, the shapes of the capital letters ‘O’ and ‘E’ are significantly different and as such create some visual difference between the verbal elements ‘BRAVO’ and ‘BRAVE’. Admittedly, if all the signs at hand would be used in small letters, the difference between the small letters ‘e/o’ is not as striking. However, there are still further factors to consider. Such as the fact that even though the term ‘PAPER’ is non-distinctive or weak for some of the relevant goods and services, it cannot be withdrawn completely from the visual comparison. Even if the relevant consumer may pay less attention to this element, it will still notice it and its existence contributes to the visual appearance of the contested sign.

Therefore, the earlier mark (1) and the contested sign are visually similar to an average degree when the element ‘PAPER’ is non-distinctive / weak. In case that this element is considered as of normal distinctive character, the visual similarity between these two signs is of a low degree.

The remaining earlier marks and the contested sign coincide only in the sequence of their first four letters and differ in all other letters/verbal elements. In the event that the further verbal elements in the earlier marks (2), (3), (4) (5) and (6) as well as in the contested sign are considered non-distinctive or weak, the visual similarity between the respective signs is of an average degree. Otherwise, the Opposition Division finds the BRAVO Girl, BRAVO HITS, BRAVO Story, BRAVO Sport, BRAVO Tube Stars and BRAVE PAPER are visually similar only to a low degree.  

Aurally, the first element of the contested sign will be pronounced either in English as /breɪv/ in one syllable or in German as /bra-ve/ in two syllables, which is the plural form of the adjective ‘brav’. The second element in this sign will be most likely pronounced as /ˈpeɪ-pə(r)/ in two syllables.

The earlier mark (1) will be spoken in two syllables as /bra-vo/, while the earlier marks (2), (4) and (5) in three, /bra-vo-girl/, /bra-vo-hits/, /bra-vo-sport/, and the earlier marks (3), (6) in four syllables, /bra-vo-sto-ry/, /bra-vo-tju:b-stars/). Hence, if the contested sign will be pronounced in German, the marks in question coincide in their first syllable, /bra/, as well as in the sound of the letter ‘v’, present identically in all of the marks in question. The pronunciation of these marks differs in the ending of the word elements ‘bravo’/‘brave’ and in their respective further verbal elements, which when enunciated produce different sounds. As already mentioned above, it is undisputable that the word ‘paper’ is non-distinctive or weak for some of the relevant goods and services. However, even if the consumers may pay less attention to this element when confronted with the contested sign, it does not mean that it will be entirely omitted. Furthermore, if the element ‘brave’ will be pronounced in English, even the first syllables of the signs in question will not convey the same impression when heard due to the different sound of the vowel /a/ there.

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

Conceptually, the public in the relevant territory will perceive the earlier mark (1) and the word ‘BRAVO’ included in the remaining earlier rights as an exclamation of applause and recognition; Well done! Beautiful!.

The words ‘Girl’, ‘Story’, ‘Hits’, ‘Sport’, and ‘Stars’ of earlier marks (2), (3), (4), (5) and (6) also exist as such in German and will be perceived by the relevant public with their respective meanings , As regards the element ‘Tube’ of the earlier mark (6), if read in English, it means i.a. informally television, if read in German it means a tubular container with screw closure for paste-like substances. In any case, either way it will be understood, it has nothing in common with the contested sign.

The verbal element ‘BRAVE’ will be read either in English or in German. If perceived as an English word, it will be understood as showing no fear of dangerous or difficult things (http://dictionary.cambridge.org/dictionary/english/brave). If however, perceived as a German word, the meaning of this adjective is good, dutiful, well-behaved. The verbal element ‘PAPER’ is an English word; yet it is very close to its German translation ‘Papier’. Hence, its first meaning namely 1. thin, flat material made from crushed wood or cloth, used for writing, printing, or drawing on, will be clearly understood. When it comes to its further meaning, namely a newspaper (http://dictionary.cambridge.org/dictionary/english/paper), this will be grasped only by consumers with a good command of English. 

Considering the above, all the elements included in both signs, will be associated with their specific meanings and due to those, the marks in question will convey totally different concepts.

As the signs do not coincide in any meaning, they are conceptually dissimilar.

  1. 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.

According to the opponent, the earlier trade marks (1), (2), (3), (4) and (5) enjoy enhanced distinctiveness and reputation in Germany.

This claim must be considered in relation to Article 8(1)(b) EUTMR given that the distinctiveness of the earlier trade mark must be taken into account in the assessment of likelihood of confusion. Indeed, the more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 18).

Given the above, the Opposition Division will assess in this section not only the opponent’s claim of enhanced distinctiveness but also its claim of reputation. The nature, factors, evidence and assessment of enhanced distinctiveness are the same as for reputation. However, even though both notions are concerned with the recognition of the mark among the relevant public, in the case of reputation a threshold below which extended protection cannot be granted is higher than in, the case of enhanced distinctiveness. Therefore a finding of ‘enhanced distinctiveness’ under Article 8(1)(b) EUTMR is not necessarily conclusive for the purposes of Article 8(5) EUTMR.

As far as the evaluation of the evidence is concerned, it must be borne in mind that the relevant date for proving enhanced distinctiveness or reputation is the filing date of the contested trade mark. The closer to the relevant date the evidence is, the easier it will be to assume that the earlier mark had acquired enhanced distinctiveness/reputation at that time. The evidential value of a particular document is likely to vary depending on how close the period covered is to the filing date. Evidence of reputation with regard to a later point in time than the relevant date might nevertheless allow the drawing of conclusions as to the reputation of the earlier mark at the relevant date (see, by analogy, 27/01/2004, C-259/02, Laboratoire de la mer, EU:C:2004:50, § 31; 17/04/2008, C-108/07 P, Ferro, EU:C:2008:234, § 53; 15/12/2005, T-262/04, Briquet à pierre, EU:T:2005:463, § 82). For this reason, the material filed with a view to proving reputation must be dated, or at least clearly indicate when the facts attested therein took place.

Furthermore, the evidence should be assessed as a whole, that is, each indication should be weighed up against the others, whereas information confirmed by more than one source will generally be more reliable than facts derived from isolated references. Moreover, the more independent, reliable and well informed the source of the information is, the higher its probative value. In consequence, information deriving directly from the opponent is unlikely to be sufficient on its own, especially if it is of an unofficial character and lacks objective confirmation, as, for example, when the opponent submits internal tables with data and figures of unknown origin.

In the present case, the opponent claims enhanced distinctiveness through extensive use and reputation of the earlier marks (1), (2), (3) and (5) in respect of electronic publications [downloadable] in Class 9 and printed matter, in particular magazines in Class 16 and of the earlier mark (4) in connection with Apps [software], namely applications for smart phones, tablet PCs, e-readers and other mobile or stationary IT equipment [downloadable]; electronic publications [downloadable] in Class 9 and printed matter, especially magazines in Class 16.

The opponent states, in particular, that ‘BRAVO’ is a teenage magazine (first published in Germany on 26/08/1956, with a print run of 30 000 copies) which has become one of the most famous publications on the German market, enjoying a particularly high brand recognition among the relevant public (86.3% degree of awareness among consumers above the age of 14 in 2011, 87% in 2009 and 82.6% in 2005). The opponent also operates under the ‘BRAVO’ trade mark a web portal (at bravo.de). Moreover, the ‘BRAVO Hits’ CD is the most successful CD series of all time in Germany, Austria and Switzerland (according to the Guinness Book of Records), more than 40 million copies of the ‘BRAVO Hits’ CDs having been sold in more than 50 different editions between 1992 and 2000. The opponent further refers to its other BRAVO publications, specifically ‘BRAVO Girl’ magazine (an average of 162 000 copies of each issue were sold in 2011, reaching approximately 640 000 readers) and ‘BRAVO Sport’ magazine (an average of 139 000 copies of each issue were sold in 2011, reaching approximately 510 000 readers).

The filing date of the contested mark is 25/02/2015 and the opponent was therefore required to prove that the earlier mark enjoyed enhanced distinctiveness or reputation at that date.

The evidence received on 11/01/2016 comprises, in particular, the following:

  • Enclosure 1: a copy of the BRAVO magazine issued on 06/01/2016.

  • Enclosure 2: extracts from a book about the history of BRAVO, published in 2006 for the magazine’s 50th anniversary by the Berlin Archiv der Jugendkulturen E.V. (The Archive of Youth Culture) and internet printouts from Wikipedia about the history of BRAVO magazine.

  • Enclosure 3: internet printouts from Wikipedia about ‘The Bravo-Beatles-Blitz-Tournee’ (Bravo-Beatles-Superfast-Tour) in Germany, which took place in June 1966 where a reference to the book ‘the Bravo-Beatles-Blitz-Tournee- Fünf Tage Beatlemania in Deutschland im Juni 1966’ by Thorsten Knublauch is made.

  • Enclosure 4: excerpts from the website of the association VDZ (the umbrella organisation for German Magazine Publishers, comprising 400 publishers producing more than 3000 titles), dated 11/03/2013, which offers, inter alia, the online media service ‘PZ-Online’ (an individual analysis in three steps in connection with the titles/offers existing in the database). The documents show the publication figures for ‘BRAVO’, ‘BRAVO Girl’ and ‘BRAVO Sport’ magazines from 2007 to 2012, the single copies sold per issue between January 2007 and December 2012 and the single issues from January 2009 to December 2009 for the ‘BRAVO’ magazine. According to these documents, the sales of BRAVO magazine were particularly strong in 2009, with an average of 513,000 sold copies per issue for the year.

  • Enclosure 6 and 7: copies of charts prepared by Allensbacher Werbeträgeranalyse (AWA, an independent market research institute information about this organization is also provided) for the years 2011, 2009 and 2005 showing the number of readers reached per issue, the degree of brand awareness, the coverage and maximum readership attained for ‘BRAVO’ and ‘BRAVO Girl’ magazines among the German-speaking population aged 14 and over. According to the evidence, brand awareness of the magazine ‘BRAVO’ was 82.6% (53.73 million people) in 2005, with 1.56 million readers per issue. Furthermore, in 2011, the degree of awareness among German consumers aged 14 and over was 86.3% (60.67 million people) for ‘BRAVO’ magazine and 46% for ‘BRAVO Girl’ (32.32 million people). Information about AWA is also provided.

  • Enclosure 8: extracts from an internal survey about the reading structure and the use of media by consumers between 9 and 17 years old, done by AWA for the opponent, according to which the degree of awareness of BRAVO was 75 % in 2013 and 2015 and its reach was 49% in 2013 and 50% in 2015.

  • Enclosures 9-19: copies of various articles, press cuttings, surveys and reports about the success of ‘BRAVO’ magazine. Some of the evidence is not dated or the dates are not readable, the rest of the evidence is mainly dated between 1996 and 2011 and provides indications about the success and long-standing presence on the market of the opponent’s magazine ‘BRAVO’.

  • Enclosures 21 and 22a: extracts from a market survey prepared by an independent company W&V in 2005 about the perception of trade marks in Internet by children and youth. These data show that according to 40% of the asked relevant public ‘BRAVO’ should not be missing on the Internet. The survey also shows that 27% of the relevant public consider ‘BRAVO’ as popular brand in Germany together with brands like Coca-Cola (52%), Viva (48%), Harry Potter (35%) etc. This part of evidence includes figures about the number of visitors at bravo.de between January and August 2008 while for example number of visitors in March 2005 amounts to 1.076.378.

  • Enclosure 23: screenshots of the ‘BRAVO’ web portal, dated 30/11/2015.

  • Enclosure 24: Figures of the visitors of the website ‘bravo.de’ in January 2006, October 2010, January 2013, April 2013 compiled by IVW (Informationsgemeinschaft zur Festellung der Verbreitung von Werbeträgern e.V., an independent organization) which shows that the website had 3.3 million visitors for January 2013, an increase of approximately a third since October 2010. This part of evidence also includes data compiled by AGOF, a company which collects and analyses online media data, see www.agof.de) according to which bravo.de website had 690.000 unique users in November 2012.

  • Enclosure 25: Evidence about the presence of ‘BRAVO’ in Twitter and Facebook. This evidence refers to 2009, March 2013 and January 2016.

  • Enclosure 26a: Undated screenshot of the opponent website bravo.de, which includes information about BRAVOview App. According to the opponent this App was introduced in September 2011. Copies of the BRAVO magazines, dated 14/09/2011 and 29/05/2013, including more info about this App (BRAVOview).

  • Enclosure 26b: Screenshot of the opponent website bravo.de of 15/05/2013 including information about BRAVO App for iPods, iPhones and Android phones. Copy of the Article published on the opponent’s website on 27/06/2011 and reporting about the new BRAVO App.

  • Enclosures 28a-28b: Information about BRAVO TV, including inter alia an article from Wikipedia (last modified on 31/12/2012), which states that ‘BRAVO TV is a German television program which aired from January 1985 till December 1986 on Sat.1 and from May 1993 till December 2002 on RTL II. In February 2003 the ZDF took over the show, but it was cancelled due to bad ratings in November 2004. The show later had a short-lived revival on ProSieben and was aired again for the first time on November 5, 2005. In May 2007 it was cancelled for good. The television show covered similar topics as the BRAVO print magazine. It usually included detailed music charts, more-or-less prominent guests, sexual education topics and a music video selected by the viewers at the end of the show’.

  • Enclosures 29-30: copies of extracts from the 2001 edition of the Guinness Book of Records confirming that the ‘BRAVO Hits’ CD is one of the most successful CD series of all time in Germany, and copies of articles and press cuttings in relation to ‘Bravo Hits’ and comments on its success, including a press release from the opponent dated 22/12/2000 and extracts from Wikipedia dated 15/05/2013.

  • Enclosure 31: copies of BRAVO Girl and BRAVO Sport magazines, dated 27/02/2013, 28/02/2013, excerpts from the ‘PZ-Online’ showing the average sale figures of both magazines in the period between 01/01/2011 and 31/12/2011.

  • Enclosures 33 and 34: internet printouts from the opponent’s website bravo.de, Twitter and Facebook showing the use of BRAVO including BRAVO Girl, BRAVO Sport either undated or dated 06/01/2016, an article published on the opponent’s website about the online portal bravosport.de, dated 23/02/2012.

  • Enclosures 36a-36b: internet printouts (from independent sources) in relation to ‘BRAVO Supershow’, one of the biggest annual music events for teenagers whereas information included in this evidence refer to the period 1994 ( when the first show took place) and 2012.

  • Enclosures 38a-42: information regarding the use of the ‘BRAVO’, ‘BRAVO Girl’ and ‘BRAVO Sport’ marks in relation to magazines outside Germany.

The abovementioned evidence indicates that the earlier trade marks ‘BRAVO’, ‘BRAVO Girl’, ‘BRAVO Sport’ and ‘BRAVO HITS’ have been used for a substantial period of time in connection with electronic publications [downloadable] in Class 9 and printed matter, in particular magazines in Class 16 and the earlier marks ‘BRAVO’ and ‘BRAVO HITS’ also in connection with Apps [software], namely applications for smart phones, tablet PCs, e-readers and other mobile or stationary IT equipment [downloadable] in Class 9. Despite the fact that some of the evidence was not dated and that a lot of the evidence relates to the period until 2012-13, the remaining evidence provides sufficient indications that these earlier trade marks acquired a high degree of distinctiveness through its use and reputation in Germany since the relevant public is well aware of them in relation to the above mentioned goods as confirmed by the submitted surveys, market reports, the number of articles from a wide variety of independent sources, the information about the online relevant portals and the information about the BRAVO App. The Opposition Division considers that the earlier marks ‘BRAVO Girl’, ‘BRAVO Sport’ and ‘BRAVO HITS’ enjoy an enhanced degree of distinctiveness among the German public in relation to printed matters, especially magazines (as regards the first two marks) and recorded and unrecorded sound, image and data carriers of all kinds included in Class 9 (except unexposed film), in particular tapes, cassettes, CDs, video discs, records, DAT tapes, audio and video discs, audio and video cassettes, audio and video films, audio and video tapes, diskettes, CD-Roms, Digital Verstaile Discs (DVDs). As the enhanced distinctiveness or reputation has been not claimed or proved in relation to the remaining goods and services, the assessment of the distinctiveness of these earlier marks will rest on their distinctiveness per se. In the present case, the earlier trade marks as a whole have no meaning in relation to any of the remaining goods and services at hand from the perspective of the public in the relevant territory. Therefore, the distinctiveness of these earlier marks must be seen as normal, despite the presence of a weak element in the marks ‘BRAVO Girl’, ‘BRAVO Sport’ and ‘BRAVO HITS’, as explained in section c) above. The evidence does not succeed in establishing that the earlier trademark ‘BRAVO Story’ has a reputation or enhanced degree of distinctiveness. Indeed, the material submitted contains few references to the trade mark, there is no sufficient information in relation to the extent of its use in relation to all or some of the goods and services for which it is protected, to its market shares, to the extent to which this mark has been promoted or to the degree of recognition by the relevant public. Therefore, the Opposition Division concludes that the opponent has failed to prove that the earlier mark ‘BRAVO Story’ has an enhanced degree of distinctiveness or reputation in Germany. Therefore, the assessment of the distinctiveness of the remaining earlier marks will rest on their distinctiveness per se. In the present case, this earlier trade mark as a whole have no meaning in relation to any of the goods and services at hand from the perspective of the public in the relevant territory. Therefore, its distinctiveness must be seen as normal, despite the presence of a weak element, as explained in section c) above.

  1. Global assessment, other arguments and conclusion

It is established case-law that the global assessment of the likelihood of confusion must, as far as the visual, aural or conceptual similarity of the marks in question is concerned, be based on the overall impression given by the marks, bearing in mind, inter alia, their distinctive and dominant components. Furthermore, it must be recalled that conceptual differences can counteract, in certain circumstances, the visual and aural similarities between two signs, that is when at least one of the signs has, from the point of view of the relevant public, a clear and specific meaning (see, to that effect, judgment of 12/01/2006, C-361/04 P, Picaro, EU:C:2006:25, § 55-57).

Although the signs coincide in the letters ‘BRAV*’, they show overall more differences than similarities. The elements ‘BRAVO’/’BRAVE’ end with ‘O’ and ‘E’ respectively. In addition the second verbal elements do not coincide in none of the signs at issue. These are clearly perceptible differences from the visual and aural point of view. Moreover, and most importantly, all the signs compared convey different meanings and as such are conceptually dissimilar.  

Notwithstanding the fact that consumers are usually not able to compare the marks side by side, there is no convincing reason to assume that the relevant public in this case, formed of reasonably observant and circumspect consumers displaying at least an average degree of attention, will memorise the marks at issue merely by reference to ‘BRAV’, to the exclusion of their further elements and respective meanings.

This finding cannot be overcome by the enhanced distinctiveness of the earlier marks. There is no reason why a public that is well aware of the earlier marks would neglect the clear differences between the signs, ignore their different meanings and draw conclusions based only on their existing similarities.

It remains necessary to consider the opponent’s argument that the earlier trade marks, all characterised by the presence of the same word component ‘BRAVO’ constitute a ‘family of marks’ or ‘marks in a series’. In its view, such a circumstance is liable to give rise to an objective likelihood of confusion insofar as the consumer, when confronted with the contested mark which contains the same word component as the earlier marks, will be led to believe that the goods and services identified by that mark may also come from the opponent.

In fact, the concept of the family of marks was exhaustively analysed by the General Court in its judgment of 23/02/2006, T-194/03, Bainbridge, EU:T:2006:65.

When the opposition to a European Union trade mark is based on several earlier marks and those marks display characteristics which give grounds for regarding them as forming part of a single ‘series’ or ‘family’ a likelihood of confusion may be created by the possibility of association between the contested trade mark and the earlier marks forming part of the series. However, the likelihood of association described above may be invoked only if two conditions are cumulatively satisfied.

Firstly, the proprietor of a series of earlier registrations must furnish proof of use of all the marks belonging to the series or, at the very least, of a number of marks capable of constituting a ‘series’.

In the present case, the opponent has proved that it uses a family of ‘BRAVO’ marks, and moreover that it uses such a family in the same fields as those covered by the contested trade mark. The evidence filed by the opponent, as seen above, shows use of at least the ‘BRAVO’, ‘BRAVO Girl’, ‘BRAVO Sport’ and ‘BRAVO HITS’ trade marks. These four trade marks are sufficient to form a ‘family of marks’.

Secondly, the trade mark applied for must not only be similar to the marks belonging to the series, but also display characteristics capable of associating it with the series. This could not be the case where, for example, the element common to the earlier series of marks is used in the contested trade mark, either in a different position from that in which it usually appears in the marks belonging to the series, or with a different semantic content.

In other words, the assumption that a certain trade mark forms part of a family of marks requires that the common component of the signs is identical or very similar. By contrast, letters that are different from, or additional to, the common component generally do not allow an assumption of a family of marks. As explained in detail above, the contested sign ‘BRAVE PAPER’ coincides in four letters ‘BRAV’ with the ‘BRAVO’ element of the earlier marks and differs in everything else. These differences are of such a nature as to create a sufficiently distinct visual and aural impression. Moreover, as already pointed out in this decision all the signs at issue convey different meanings with which the relevant public will refer to them. In addition, the Opposition Division points out that the link between all cited opponent’s marks is created indeed by the common element ‘BRAVO’. Therefore, the relevant consumers when seen a sign with a different ending and meaning will not perceive this link between the signs anymore. Such differences are, in the opinion of the Opposition Division, sufficient to exclude the likelihood that the contested sign would be perceived as belonging to the opponent’s family of ‘BRAVO’ marks.

Considering all the above, even assuming that the goods and services in question are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

The opponent also refers, in support of its claim of likelihood of confusion, to previous decisions of the Office, namely Opposition decisions No. B 986 390, BRAVO vs. BRAVOSOLUTION GeO of 29/11/2010, No. B 1 099 250, BRAVO track Attack vs BRAVO of 08/10/2010, No B 1 548 000, BRAVO vs. BRAVOMEDIA of 02/09/2010, and No. B 932 709 BRAVO vs. BRAVO NIPPON of 15/12/2009.  

It must be noted that the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities. This practice has been fully supported by the General Court which stated that it is settled case-law that the legality of decisions is to be assessed purely by reference to the CTMR, and not the Office’s practice in earlier decisions (judgment of 30/06/2004, T-281/02, ‘Mehr für Ihr Geld’). Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In any case, all the cited previous cases referred to by the opponent are not relevant to the present proceedings. The decisions on the oppositions concerning the  BRAVO trade marks were all directed against signs which contained the identical component ‘BRAVO’, either alone or accompanied by (an)other element(s), which is not the case here. Furthermore, it has to be noted that the signs in the present opposition proceedings, as explained in detail above, are sufficiently distinct, while, in the other cases put forward by the opponent, the signs were found to present a sufficient degree of similarity to lead to a likelihood of confusion on the part of the public.

The Opposition Division deems, therefore, that the differences between the signs at hand, and particularly the conceptual impact of the elements ‘BRAVO’ and ‘BRAVE’ are of such a nature as to outweigh the visual and aural similarity generated by the four letters they have in common and, consequently, the relevant public can safely distinguish the earlier marks from the contested sign. In other words, the targeted consumers in the relevant territory are not likely to believe that the goods and services covered by the marks in dispute come from the same undertaking or from economically linked ones.

Considering all the above, the Opposition Division finds that there is no likelihood of confusion on the part of the public. This would be the case even if the goods and services were identical. Therefore, the opposition must be rejected insofar as it is based on Article 8(1)(b) EUTMR.

REPUTATION – ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark shall not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds of refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

  • The signs must be either identical or similar.

  • The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

  • Risk of injury: the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T-345/08, & T-357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

  1. The signs

The signs have already been compared above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings, which are equally valid for Article 8(5) EUTMR.

  1. Reputation of the earlier trade mark

The evidence submitted by the opponent to prove the reputation and highly distinctive character of the earlier trade mark(s) has already been examined above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings, which are equally valid for Article 8(5) EUTMR.

  1. The ‘link’ between the signs

As seen above, the earlier marks are reputed and the signs are similar to some extent. In order to establish the existence of a risk of injury, it is necessary to demonstrate that, given all the relevant factors, the relevant public will establish a link (or association) between the signs. The necessity of such a ‘link’ between the conflicting marks in consumers’ minds is not explicitly mentioned in Article 8(5) EUTMR but has been confirmed in the judgments of 23/10/2003, C-408/01, Adidas, EU:C:2003:582, § 29 and 31, and of 27/11/2008, C-252/07, Intel, EU:C:2008:655, § 66. It is not an additional requirement but merely reflects the need to determine whether the association that the public might establish between the signs is such that either detriment or unfair advantage is likely to occur after all of the factors that are relevant to the particular case have been assessed.

Possible relevant factors for the examination of a ‘link’ include (27/11/2008, C-252/07, Intel, EU:C:2008:655, § 42):

        the degree of similarity between the signs;

        the nature of the goods and services, including the degree of similarity or dissimilarity between those goods or services, and the relevant public;

        the strength of the earlier mark’s reputation;

        the degree of the earlier mark’s distinctive character, whether inherent or acquired through use;

        the existence of likelihood of confusion on the part of the public.

This list is not exhaustive and other criteria may be relevant depending on the particular circumstances. Moreover, the existence of a ‘link’ may be established on the basis of only some of these criteria.

As assessed above, there is no likelihood of confusion on the part of the public since the relevant consumers are highly unlikely to believe that the goods and services covered by the marks in dispute come from the same undertaking or from economically linked ones.

As also seen above, in the present case, the signs feature some similarities, insofar as the coincide in four letters, namely ‘BRAV’, which with addition of the last letter ‘O’ compose the earlier mark (1), and the first verbal element of the remaining earlier marks and are also present in the first verbal element of the contested sign ‘BRAVE PAPER’. However, the coincidence in these four letters does not mean that the relevant public is likely to establish a link between them. Despite some visual and aural similarities between the signs at hand, the shared letters do not form an independent element in neither of the marks and moreover the elements ‘BRAVO’ and ‘BRAVE’ transmit completely different concept for the relevant German consumers, since either in English or in German they clearly mean something else. Furthermore, all the additional elements in the marks at hand contribute to their perceptible visual and aural differences, despite the non-distinctive/weak character of the further elements ‘PAPER’ and ‘Story’ in relation to some of the goods and services. These additional elements also do not coincide in their relevant connotation and as such cannot create any link between the signs.

According to settled case-law, where the meaning of at least one of the two signs at issue is clear and specific so that it can be grasped immediately by the relevant public, the conceptual differences observed between those signs may counteract the visual and aural similarities between them (see 21/01/2010, T-309/08, G Stor, EU:T:2010:22, § 34). In the present case, as was pointed out above, the verbal elements ‘BRAVO’ and ‘BRAVE’ as well as the further verbal elements in the relevant marks, have for the relevant public, a clear and specific semantic content, which the public is likely to grasp immediately. It follows that the conceptual differences between the signs at issue, are, in the present case, of a kind that will prevent any assumption of a possible link between the earlier marks and the contested sign and this even if the signs will be seen on the identical goods.  

Therefore, taking into account and weighing up all the relevant factors of the present case, the Opposition Division concludes that it is unlikely that the relevant public will make a mental connection between the signs in dispute, that is to say, establish a ‘link’ between them. Therefore, the opposition is not well founded under Article 8(5) EUTMR and must be rejected.

Final conclusion

Since the opponent did not succeed on any count, the opposition must be rejected in its entirety.

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

Natascha GALPERIN

Renata COTTRELL

Reiner SARAPOGLU

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.

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