OPPOSITION DIVISION
OPPOSITION No B 2 827 379
Jose Oriol Polo Ribas, Ticià, 43, 08035 Barcelona, Spain (opponent), represented
by Isern Patentes y Marcas, S.L., Avenida Diagonal, 463 bis, 2° piso,
08036 Barcelona, Spain (professional representative)
a g a i n s t
all products GmbH, Gewerbestraße 2, 2443 Leithaprodersdorf, Austria (applicant),
represented by Christoph Friedrich Jahn, Rothenburg 41, 48143 Münster,
Germany (professional representative).
On 15/11/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 827 379 is partially upheld, namely for the following
contested goods:
Class 3: Lavatory cleaning compositions; perfumed lotions [toilet
preparations]; douching preparations for personal sanitary or
deodorant purposes [toiletries].
Class 5: Absorbent sanitary articles.
2. European Union trade mark application No 15 828 676 is rejected for all the
above goods. It may proceed for the remaining goods.
3. Each party bears its own costs.
PRELIMINARY REMARK
As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95
have been repealed and replaced by Regulation (EU) 2017/1001 (codification),
Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU)
2017/1431, subject to certain transitional provisions. All the references in this
decision to the EUTMR, EUTMDR and EUTMIR shall be understood as references to
the Regulations currently in force, except where expressly indicated otherwise.
REASONS
The opponent filed an opposition against all the goods of European Union trade mark
application No 15 828 676 ‘Camella’. The opposition is based on European Union
trade mark registration No 11 630 548 ‘KAMEL’. The opponent invoked Article 8(1)
(b) EUTMR.
Decision on Opposition No B 2 827 379 page: 2 of 7
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.
a) The goods and services
The goods and services on which the opposition is based are the following:
Class 3: Bleaching preparations and other substances for laundry use; cleaning,
polishing, scouring and abrasive preparations; soaps; perfumery,
essential oils, cosmetics, hair lotions; dentifrices; deodorants;
depilatories.
Class 5: Pharmaceutical and veterinary preparations; sanitary preparations for
medical purposes; dietetic food and substances adapted for medical or
veterinary use, food for babies; food supplements for human beings and
animals; plasters, materials for dressings; material for stopping teeth,
dental wax; disinfectants; preparations for destroying vermin; fungicides,
herbicides; all the aforesaid expressly not including specialist
pharmaceutical preparations for human use.
Class 35: Advertising; sales promotion for others (commercial services); business
management; procurement (for others), business brokerage, import-
export and retailing and wholesaling in shops, by catalogue and via the
internet of soaps, perfumery, essential oils, cosmetics, hair lotions,
dentifrices, deodorants, depilatory preparations, pharmaceutical and
veterinary preparations, foodstuffs and dietetic substances adapted for
medical or veterinary use and nutritional supplements for human beings
and animals; commercial or industrial management assistance;
franchising relating to business management assistance; presentation of
goods on communication media, for retail purposes; organisation of trade
fairs and exhibitions for commercial or advertising purposes; direct mail
advertising (leaflets, catalogues, brochures, printed matter, samples); all
the aforesaid expressly not including specialist pharmaceutical
preparations for human use.
The contested goods are the following:
Class 3: Lavatory cleaning compositions; Perfumed lotions [toilet preparations];
Douching preparations for personal sanitary or deodorant purposes
[toiletries].
Class 5: Absorbent sanitary articles.
Class 16: Hygienic paper; Toilet rolls; Paper handkerchiefs; Kitchen rolls [paper];
Paper handtowels; Face towels of paper; Face cloths made of paper;
Table napkins of paper.
Decision on Opposition No B 2 827 379 page: 3 of 7
As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR,
goods or services are not regarded as being similar to or dissimilar from each other
on the ground that they appear in the same or different classes under the Nice
Classification.
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 3
The contested lavatory cleaning compositions are included in the broad category of
the opponent’s cleaning preparations. Therefore, they are identical.
The contested perfumed lotions [toilet preparations] include, as a broader category,
or overlap with the opponent’s hair lotions. 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 douching preparations for personal sanitary or deodorant purposes
[toiletries] are included in the broad category of the opponent’s cosmetics. Therefore,
they are identical.
Contested goods in Class 5
The contested absorbent sanitary articles are included in the broad category of the
opponent’s sanitary preparations for medical purposes; all the aforesaid expressly
not including specialist pharmaceutical preparations for human use. Therefore, they
are identical.
Contested goods in Class 16
The contested hygienic paper; toilet rolls; paper handkerchiefs; kitchen rolls [paper];
paper handtowels; face towels of paper; face cloths made of paper; table napkins of
paper are goods made from paper that differ in their nature and manufacturing
methods from the opponent’s goods in Classes 3 and 5. They have different
purposes and methods of use and are not usually produced by the same
manufacturers. The fact that some of them may be obtained in the same retail stores
is not sufficient for consumers to assume that the goods in question have the same
commercial origin. Therefore, they are considered dissimilar.
Furthermore, the aforementioned contested goods do not have the same nature,
purpose, methods of use or distribution channels as the opponent’s services in
Class 35. They are neither complementary nor in competition. Therefore, they are
dissimilar.
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.
Decision on Opposition No B 2 827 379 page: 4 of 7
In the present case, the goods found to be identical are directed at the public at large
in the case of the goods in Class 3 and at the public at large and a professional
public, for example medical care personnel, in the case of the goods in Class 5. The
degree of attention is average.
c) The signs
KAMEL Camella
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 unitary character of the European Union trade mark means that an earlier
European Union trade mark can be relied on in opposition proceedings against any
application for registration of a European Union trade mark that would adversely
affect the protection of the first mark, even if only in relation to the perception of
consumers in part of the European Union (18/09/2008, C-514/06 P, Armafoam,
EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the
relevant public of the European Union is sufficient to reject the contested application.
The earlier mark ‘KAMEL’ and the contested sign ‘Camella’ are word marks. In the
case of word marks, the words themselves are protected, not their written form.
Therefore, it is irrelevant whether these word marks are depicted in lower or upper
case letters.
The word ‘KAMEL’ of the earlier mark is meaningful in some territories; for example,
the German- and Swedish-speaking parts of the public will understand it as meaning
‘Camel’. However, the word ‘Camella’ of the contested sign is meaningless for these
parts of the public. Similarly, the word ‘Camella’ of the contested sign will be
understood as the feminine form of ‘Camello’, meaning ‘Camel’, for example by the
Spanish-speaking part of the public. However, the word ‘KAMEL’ of the earlier mark
will not convey any meaning for this part of the public. For part of the public, for
example the French-, Italian- and Romanian-speaking parts of the public, both words
are meaningless. In any case, the word ‘KAMEL’ of the earlier mark and the word
‘Camella’ of the contested sign do not describe or allude to any characteristics of the
relevant goods and, therefore, each has an average degree of distinctiveness.
Considering the abovementioned possible perceptions of the signs, the Opposition
Division finds it appropriate to first examine the opposition in relation to the part of the
public, namely the French-, Italian- and Romanian-speaking parts of the public, for
which both the earlier mark and the contested sign are meaningless, because this
part of the public will be more likely to confuse the signs due to the lack of any
concept that could differentiate them.
Decision on Opposition No B 2 827 379 page: 5 of 7
Since the earlier mark, ‘CAMEL’, and the contested sign, ‘Camella’, are word marks,
neither of them has any element that could be considered more dominant (visually
eye-catching) than other elements.
Visually, the signs coincide in the sequence of letters ‘*AMEL**’, which constitute
four letters (out of five) of the earlier mark and four letters (out of seven) of the
contested sign. The signs differ in their first letters, ‘K’ of the earlier mark and ‘C’ of
the contested sign, and in the last two letters, ‘LA’, of the contested sign.
Although the contested sign is longer than the earlier mark, the two-letter difference
cannot be considered an important distinguishing factor between the marks, since
the public, which is not, in general, aware of the exact number of letters in a word
mark, will not pay much attention to the lengths of the words composing the marks.
However, the fact that the contested sign almost fully incorporates the earlier mark
(except its first letter) will not go unnoticed by the relevant consumers.
Therefore, the visual similarities between the signs lie in the fact that the contested
sign contains four out of the five letters of the earlier mark in the same order.
Although the differing first letters, ‘K’ of the earlier mark versus ‘C’ of the contested
sign, and the ending ‘LA’ of the contested sign create some visual differences, they
are not able to counteract the similarities arising from the abovementioned
commonalities. Therefore, the signs are considered visually similar to at least an
average degree.
Aurally, the pronunciation of the signs coincides in the sound of the letters ‘KAMEL’,
since the first letter, ‘K’, of the earlier mark and the first letter, ‘C’, of the contested
sign will be pronounced as the same sound, /K/. Moreover, since the letters ‘LL’ of the
contested sign will result in a very similar sound to that of the letter ‘L’ of the earlier
mark, the only perceptible aural difference between the marks will be in the sound of
the last letter ‘A’ of the contested sign. Therefore, the signs are considered aurally
similar to a high degree.
Conceptually, neither of the signs has a meaning for the public in the relevant
territory. Since a conceptual comparison is not possible, the conceptual aspect does
not influence the assessment of the similarity of the signs.
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 and services in question from the perspective of the
public in the relevant territory. Therefore, the distinctiveness of the earlier mark must
be seen as normal.
Decision on Opposition No B 2 827 379 page: 6 of 7
e) 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).
As concluded above, the contested goods are partly identical and partly dissimilar to
the opponent’s goods and services and they target the public at large in the case of
the goods in Class 3 and both the public at large and professionals in the case of the
goods in Class 5, who will have an average degree of attention. The degree of
distinctiveness of the earlier mark is average.
The signs are visually similar to at least an average degree and aurally similar to a
high degree. The conceptual aspect does not influence the assessment of likelihood
of confusion between the signs, as both signs are meaningless. As detailed in
section c), the earlier mark is almost fully incorporated (except its first letter) in the
contested sign and the difference in the first letters can be perceived only visually,
because, aurally, the first letters in both signs will be pronounced identically. Since
oral communication in respect to the relevant goods and the signs under comparison
cannot be excluded, the relevant consumer could be confused by the fact that the
earlier mark and contested sign are composed to a great extent of the same letters in
the same order and are pronounced almost identically, with the exception of the
additional vowel at the end of the contested sign.
Therefore, considering the fact that average consumers rarely have the chance to
make a direct comparison between different marks, but must trust in their imperfect
recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323,
§ 26), the abovementioned visual and aural similarities result in a likelihood of
confusion between the signs. Since neither of the marks under comparison conveys
any concept that could differentiate them, it cannot be safely excluded that the
relevant consumer will confuse the marks and believe that the goods in question
come from the same undertaking or economically-linked undertakings.
Considering all the above, the Opposition Division finds that there is a likelihood of
confusion on the part of the French-, Italian- and Romanian-speaking parts of the
public and therefore the opposition is partly well founded on the basis of the
opponent’s European Union trade mark registration No 11 630 548 ‘KAMEL’. As
stated above in section c) of this decision, a likelihood of confusion for only part of
the relevant public of the European Union is sufficient to reject the contested
application.
It follows from the above that the contested trade mark must be rejected for the
goods found to be identical to those of the earlier trade mark.
The rest of the contested goods are dissimilar. As similarity of goods and services is
a necessary condition for the application of Article 8(1) EUTMR, the opposition based
on this article and directed at these goods cannot be successful.
COSTS
According to Article 109(1) EUTMR, the losing party in opposition proceedings must
bear the fees and costs incurred by the other party. According to
Decision on Opposition No B 2 827 379 page: 7 of 7
Article 109(3) EUTMR, where each party succeeds on some heads and fails on
others, or if reasons of equity so dictate, the Opposition Division will decide a
different apportionment of costs.
Since the opposition is successful for only some of the contested goods, both parties
have succeeded on some heads and failed on others. Consequently, each party has
to bear its own costs.
The Opposition Division
Janja FELC Rasa BARAKAUSKIENE Judit NÉMETH
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.