OPPOSITION No B 2 673 195

Lippi Management, La Fouillouse, 16440 Mouthiers Sur Boeme, France (opponent), represented by Cabinet Plasseraud, 1, rue Lafaurie de Monbadon, 33000 Bordeaux, France (professional representative)

a g a i n s t

Britta Gläsner, Oberer Reuteweg 5, 71540 Murrhardt, Germany (applicant).

On 24/03/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 673 195 is upheld for all the contested goods and services, namely:

Class 21: Vacuum jars; Household containers; Utensils for household purposes; Glassware for household purposes; Glassware not included in other classes; Porcelain ware; Ceramics for household purposes; Combs; Brushes.

Class 35:        Import agency services; Advertising agencies; Import-export agencies; Wholesale services in relation to fabrics; Wholesale services in relation to furniture; Wholesale services in relation to tableware; Wholesale services in relation to furnishings; Wholesale services in relation to foodstuffs; Wholesale services in relation to sanitary installations; Arranging of commercial and business contacts; Advertising services provided via the internet; Advertisement for others on the Internet; Rental of advertising space on the internet; Commercial information agencies; Arranging commercial transactions, for others, via online shops; Department store retail services connected with the sale of beauty products, toiletries, machines for household use, hand tools, optical goods, domestic electrical and electronic equipment.

Class 39:        Transportation and storage; Providing information relating to warehousing services; Parcel receipt services; Storage; Storage and delivery of goods; Food storage services; Storage of liquids; Wrapping and packaging services; Distribution services.

2.        European Union trade mark application No 14 963 128 is rejected in respect of the contested goods and services. It may proceed for the remaining services.

3.        The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 14 963 128, namely against all the goods in Class 21 and all the services in Classes 35 and 39. The opposition is based on European Union trade mark registration No 12 538 997. The opponent invoked Article 8(1)(b) EUTMR.

PRELIMINARY REMARK

In accordance with Article 41 EUTMR, the notice of opposition must be submitted within the period of three months following the EUTM’s publication.

By indicating the goods and services against which the opposition is directed in accordance with Rule 15(3)(a) EUTMIR the opponent determines the actual scope of the opposition which subsequently may not be extended (24/08/2016, R 1157/2015-5, PlanVet / PlantaVet et al., § 25-26).

The contested trade mark application was published on 07/01/2016. In the notice of opposition filed on 15/03/2016, it was clearly indicated that the opposition was directed against only some of the goods and services, namely those in Classes 21, 35 and 39.

In its submission of 24/08/2016, the opponent indicated that its opposition was directed against all the goods and services of the contested EUTM application, namely all of the goods and services in Classes 21, 35, 39 and 43. However, since this submission was received after the expiry of the three-month period granted for the opponent to determine the scope of the opposition, the indication of the list of contested services in Class 43 filed on 24/08/2016 must be considered an inadmissible extension of the scope of the opposition and cannot, therefore, be taken into account.

Consequently, the Office deems the opposition to have been filed against some of the goods and services, namely against those in Classes 21, 35 and 39.

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:

Class 21: Household or kitchen utensils and containers, non-electric; Combs and sponges; Brushes (except paintbrushes); Brush-making materials; Cleaning instruments, hand-operated; Brooms; Steelwool; Cloth (rags) for cleaning; Unworked or semi-worked glass (except glass used in building); Glasses, containers; Dishware; China ware; Earthenware; Bottles; Works of art, statues or figurines (statuettes) of porcelain, terracotta or glass; Toilet utensils and toilet cases; Mouth rinsing beakers; Soap holders; Soap boxes; Perfume vaporizers; Napkin holders; Garbage pails; Pottery; Vases; Flower pots; Plant containers; plant pot covers (not of paper); Perfume burners; Candlesticks; Photophores; Chamber pots; Portable baby baths; Watering devices, nozzles for sprinkler hose, sprinklers, watering cans, hose guides, buckets, gardening gloves and gloves for household purposes; Insect, rat and mouse traps; Indoor aquaria.

Class 35: Consultancy and assistance in the management of commercial or industrial companies or public institutions; Consultancy in the organisation and management of real estate or urban projects (business organisation and management consultancy); Business administration of real estate; Business appraisals and efficiency experts; Economic forecasting; Market studies of real estate for rental and sale; Opinion polling; Analysis and documentation of business statistics; Public relations services; Advertising; On-line advertising on the internet, including on mobile internet; Advertising of commercial or residential real estate; Advertising promotions; Presentation of real estate on communication media, for sale and rental; rental of advertising time and advertising space on all means of communication; Preparation, insertion and dissemination of advertisements; Posting of promotional material on the internet, including on mobile internet; Providing commercial information, including via directories, on the Internet, including mobile Internet; Publication of publicity texts and/or images; Direct mail advertising (leaflets, brochures, printed matter, samples); Publicity material rental; Organisation of competitions for promotional or advertising purposes; Arranging and conducting of professional trade fairs, demonstrations and exhibitions for commercial or advertising purposes; Arranging subscriptions to information media of all kinds, text, sound and/or images and in particular in the form of electronic publications, digital, audio-visual or multimedia goods (formatting of text and/or images, fixed or animated, and/or sound, musical or not), for interactive use or not ; Computerised file management; Operating a commercial database; Collection and systematic ordering of data in a central file; News clipping services; Retailing and wholesaling of goods for perimeter protection (fences, barriers, gates, grids, grilles), security goods (electric safety automatic apparatus and systems), surveillance goods, access control goods; Retailing and wholesaling of fences and bar fencing, grilles, gates, small doors, posts and fence panels, grids and barred gratings, bars for railings, barriers; Providing of commercial information and consultancy for consumers relating to security and surveillance ; Providing of commercial information and consultancy for consumers relating to the following goods: fences and bar fencing, grilles, gates, small doors, posts and fence panels, grids and barred gratings, bars for railings, barriers, electric security and surveillance devices integrated into installations for perimeter protection (fences, barriers, gates, grids, grilles) ; Electronic commerce (e-commerce), namely providing of information relating to goods for perimeter protection (fences, barriers, gates, grids, grilles), for security and surveillance, and for access control via telecommunications networks for advertising and sales purposes ; Advertisement services, Promotion and marketing in the field of goods for perimeter protection (fences, barriers, gates, grids, grilles), presentation of goods for perimeter protection (fences, barriers, gates, grids, grilles) on communications media of all kinds, for retail purposes, Publicity columns preparation, Demonstration of goods, Advertising matter (dissemination of-), Direct mail advertisement, namely: Leaflets, Prospectuses, Printings, Samples, Market research, Updating of advertising material, Organisation of exhibitions for commercial advertising purposes, Publication of publicity texts, Market research, Sponsorship search, Opinion polling, Public relations services; Retailing of all the aforesaid goods, namely: first-aid kits, tapes and bandaging for medical purposes, namely adhesive tapes for medical purposes, cohesive bandages for medical purposes, foam membranes for use in pre-bandaging for medical purposes, adhesive sprays for use in pre-bandaging for medical purposes, kits for sports coaches containing adhesive bandages, adhesive tapes for medical purposes, gauze pads for dressings, cohesive bandages for medical purposes, spray plasters, medical and surgical dressings, namely dressings for blisters, wound dressings, non-medical, topical ointments and gels for use as skin lubricants for personal use, general disinfectants and antibacterial cleaning preparations for surfaces, spray plasters for skin wounds, adhesive bandages, metal building materials, panels of metal, reinforcing materials of metal for building, duckboards of metal, bars for metal railings, posts of metal, barbed wire of metal, fences of metal, doors and gates of metal, grids and grilles of metal, bordering of metal, non-automatic turnstiles for pedestrians, ironmongery, small items of metal hardware, steel buildings, door frames of metal, door stops of metal, works of art of common metal, barbed wire, bars for metal railings, armour plating, letter boxes of metal, knobs of metal, stops of metal, padlocks, windows frames of metal, door frames of metal, safety chains of metal, chains of metal, hinges of metal, framework of metal for building, window casings of metal, door casings of metal, frames of metal, keys, latch bars of metal, bells, partitions of metal, fences of metal, structures of metal, signboards of metal, ironwork for windows, ironwork for doors, window pulleys, runners of metal for sliding doors, gratings of metal, spring locks, door frames of metal, door knockers, house numbers of metal, palings of metal, door handles of metal, non-electric door closers, doors of metal, door bolts, non-electric door bells, small items of metal hardware, outdoor blinds of metal, sheets and plates of metal, tiles of metal, casement windows of metal, bolts, screws of metal, fall protection grilles, locking pulleys, machines and machine tools for use in agriculture, DIY and gardening, machines and machine tools for building and public works, machines and machine tools for metallurgy, for working wood or plastic, machines and machine tools for packaging or packing, machines and machine tools for the textile industry, cultivators (machines), motorised cultivators, lawnmowers (machines), grinding machines, motors and engines (except for land vehicles), non-electric machine coupling and transmission components (except for land vehicles), electric or motorised tools and instruments for DIY and gardening, electric hand drills, hand-operated electric screwdrivers, planing machines, spray guns for painting, electric glue guns, welding apparatus, electric shears, saws (machines) and saw blades, mechanical reels for flexible hoses, extractors, agricultural implements other than hand-operated, incubators for eggs, pumps (machines), basement sump pumps, generators of electricity and power generators, washing apparatus, cleaning machines and appliances, in particular high-pressure cleaning appliances and cleaning appliances utilising steam, cleaning apparatus and robots for swimming pools, filtering machines, electric appliances for household cleaning purposes, machines for washing purposes, in particular washing machines, dishwashers, electric machines and apparatus for carpet shampooing, kitchen apparatus and machines (other than hand-operated or electric) for chopping, milling, pressing, cutting, grating, peeling or mixing, electric knives, electric tin openers, electrically operated curtain drawing devices, waste disposals, wind generators, electric devices for opening and closing doors, gates, fences, windows and shutters, hand tools and implements (hand-operated), in particular tools for agriculture, DIY and gardening, hoe-forks, hoes, clawed tools, forks, rakes (tools), spades (hand tools), draining spades, shovels (hand tools), pickaxes, scarifiers (hand tools), hoes (hand tools), sowers (hand tools), spreaders (hand tools), lawn clippers (hand instruments), tree pruners, non-electric scissors (hand tools) and shears, hedge trimmers (hand instruments), scythes and sickles, saws (hand tools) and saw blades (parts of tools), pliers, pincers, wrenches (hand tools), hammers (hand tools), cutter knives, nail drawers (hand tools), mitre boxes (hand tools), graving tools (hand tools), squares (hand tools), vices, insecticide sprayers (hand tools), hand tools for artists, in particular spatulas, sculptors’ scissors, tool belts, non-electric cutlery, non-electric tin openers, nutcrackers, side arms, shaving apparatus, hand-operated kitchen tools and implements for chopping, milling, pressing, cutting, grating, peeling or mixing, fireplace bellows (hand tools), glass covered with an electrical conductor, peepholes for doors, apparatus for recording, transmission or reproduction of sound, images or data, data processing apparatus, apparatus for inputting, extracting, transmitting and storing data, audiovisual teaching apparatus, magnetic data carriers, digital, optical and/or digital, phonograph discs, compact discs, digital versatile disks, CD-ROMs, DVD-ROMs, software applications (downloadable software for mobile telephones, touchscreen tablets and apparatus equipped with multimedia and interactive functions), computer software, computer software packages and other recorded computer programs for displaying, virtual visits, rental and sale of real estate, downloadable electronic publications, newsletters, downloadable electronic newspapers and magazines, downloadable electronic compendiums and advertising catalogues, downloadable electronic directories and guides, downloadable electronic catalogues and brochures, downloadable electronic images, apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity, in particular with regard to fences, electric batteries, detectors, electric wires, electric relays, control apparatus for electric fences, devices for electrifying fences and devices for electrifying fences using mains power, electric apparatus and instruments for control, commutation and measurement, and components for electric fences, electric locks, electromagnetic locks, protective clothing, protective equipment and lifesaving equipment, goggles, sunglasses, glasses and boxes, cases, parts accessories therefor, gloves, footwear, helmets, aprons and clothing for protection against accidents, irradiation and fire, protective clothing for industrial use, apparatus and installations for protection against falling, in particular anti-fall lifelines fixed along the walls of buildings and anti-fall connection tethers, bullet-proof vests, safety clothing, footwear, helmets and clothing for protection against accidents, irradiation and fire, protection devices for personal use against accidents, including protective footwear for occupational purposes, safety footwear and clothing for occupational purposes, safety harnesses of leather or imitations of leather, fall protection equipment for workers, namely safety nets, safety tarpaulins, safety display panels, safety sign boards, safety harnesses/tethers/belts incorporated into safety clothing, jackets for protection against impacts, restraint cables, safety lanyards, lanyards for protection against impacts, retractable fall protection lines, fall protection safety harnesses for occupational purposes, safety slides, life-saving apparatus and instruments, namely equipment for saving and assisting people at risk of falling, namely guided fall protection devices, including rigid or flexible anchor cables, straps for preventing people from falling, connectors, being parts of individual fall protection equipment, and impact absorbers, holding belts, full harnesses, being components of life-saving equipment, lifebelts, firefighting belts, stopping devices, abseiling equipment (other than being operated mechanically), controls for lifting devices for life-saving, life-saving apparatus and instruments, namely fall protection railings and fall protection platforms, including safety cables, safety ropes, rescue ladders, podiums, platforms, mobile tripods, anchoring grips, safety tethers, safety slides attached to buildings, installations or machines, fall protection equipment, signalling vests, inflatable lifejackets, coaxial cables, tripods, sit harnesses, elbow pads (safety equipment), shoulder pads (safety equipment), shin guards (safety equipment), ankle guards (safety equipment), leg guards (safety equipment), knee pads (safety equipment), shells (safety equipment), arm and forearm guards (safety equipment), wrist guards (safety equipment), leg guards (safety equipment), kidney belts, apparatus and installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes, apparatus and installations for air-conditioning purposes, fans (air-conditioning), apparatus, instruments and installations for the purification and/or softening of water, water fountains, water filtering apparatus, apparatus and machines for purification of the air, air humidifiers and dehumidifiers, heat exchangers (not parts of machines), hot water bottles, lamps, street lamps, chandeliers, ceiling lights, wall lights (lighting apparatus), lampshades, nightlights for children, light bulbs, electric pocket torches, outdoor solar lighting, electric Christmas tree lights (garlands), radiators, boilers, water heaters, heat pumps, wood-burning stoves, solar collectors (heating), refrigerators, ovens, cookers, extractor hoods for kitchens, washbasins, bathtubs, showers, toilets, sinks, bidets, water apparatus, cisterns, sauna bath installations, jacuzzis, plumbing fixtures, barbecues, printed matter, publications, encyclopaedias, books, newsletters, newspapers, magazines, compendiums, advertising catalogues, directories, guides, catalogues, commercial pamphlets and advertising brochures, stationery, pencils, pens, calendars, prospectuses, albums, posters, drawings, geographical maps, postcards, photographs, printing blocks, plans, graphic reproductions, signboards of paper or cardboard, bags (envelopes, pouches) of paper or plastics, for packaging, instructional and teaching material (except apparatus), building materials (non-metallic), panels, not of metal, reinforcing materials, not of metal, for building, duckboards, not of metal, bars for railings, not of metal, posts, not of metal, barbed wire, not of metal, fences, not of metal, doors and gates, not of metal, grids and grilles, not of metal, bordering, not of metal, non-automatic turnstiles for pedestrians, door frames, not of metal, reinforcing materials, not of metal, for building, building materials (non-metallic), folding doors, not of metal, wood for building, veneer wood, manufactured timber, semi-worked wood, wood panelling, letter boxes of masonry, window frames, not of metal, door frames, not of metal, framework, not of metal, for building, partitions, not of metal, fences, not of metal, building materials (non-metallic), structures, not of metal, non-metallic transportable buildings, wall linings, not of metal, palisading, not of metal, doors, not of metal, door panels, not of metal, posts, not of metal, beams, not of metal, works of art of stone, concrete or marble, swimming pools (structures, not of metal), gravel, stones, paving blocks, not of metal, folding shutters, roller blinds and, more generally, shutters, housings for roller blinds, not of metal, window glass, except glass for vehicle windows, glass used in building, window glass, for building, insulating glass and glazing for building, double glazing, laminated glass for building, reinforced glass and glazing, stained-glass windows, profiles, not of metal, including profiles of polyvinyl chloride for the manufacture, decoration or refurbishment of windows, doors and verandas, non-electric household or kitchen utensils and containers, combs and sponges, brushes (except paint brushes), brush-making materials, hand-operated cleaning instruments, brooms, steelwool, cloths for cleaning (rags), unworked or semi-worked glass (except glass used in building), glasses (containers), tableware, porcelain, earthenware, bottles, works of art, statues or figurines (statuettes) of porcelain, terracotta or glass, toilet utensils or cases, mouth rinsing beakers, soap holders, soap boxes, perfume atomisers, towel rails, refuse bins, pottery, vases, flower pots, tubs (for plants), flower-pot covers not of paper, fragrance burners, candelabras, candle jars, chamber pots, portable bathtubs for babies, watering devices, nozzles for sprinkler hoses, sprinklers, watering cans, hose guides, buckets, gardening gloves and household gloves, traps for insects, rats and mice, indoor aquaria, synthetic turf products composed of particular filler materials used for landscaping, residential purposes, or for sports pitches or other commercial purposes, artificial grass, artificial turf, floor coverings, carpets, rugs, mats and matting, linoleum and other materials for covering existing floors, wall hangings (non-textile), synthetic coverings, nets for sports, games and playthings, outdoor games, in particular play frames with swings, slides, swinging seats, climbing ropes, gymnastic and sporting apparatus, swings, sandboxes, slides, trampolines, swimming pools (play articles), kites, table tennis tables, gymnastic and sporting articles (other than clothing, footwear and mats), musical mobiles (playthings), soft toys (playthings), play mats (playthings), decorations for Christmas trees (except illumination articles and confectionery), agricultural, horticultural and forestry products (neither prepared nor processed), grains (seeds), natural plants and flowers, sod, shrubs, plants, seedlings, trees, in particular goods in the field of building construction, DIY, security for individuals and buildings, and gardening ; Retailing of goods in the field of building construction, DIY and gardening ; Retailing of chemicals used in industry, science and photography, as well as in agriculture, horticulture and forestry, unprocessed artificial resins, unprocessed plastics, water treatment preparations, filtering materials (mineral and plant substances), manures, soil conditioning preparations, fertilising preparations, compost, mulch (manures), humus and humus top dressing, earth for growing, loam and potting soil, fire extinguishing compositions, tempering and soldering preparations, chemical substances for preserving foodstuffs, flower preservatives, chemical chimney cleaners, cement preservatives and cement-waterproofing preparations (except paints and oils), fireproofing preparations, tanning substances, adhesives used in industry, salt for preserving, other than for foodstuffs, salts for industrial purposes, chemical reagents (other than for medical or veterinary purposes), decolorants for industrial purposes, moisture absorbers, oil-based mastics, paints, varnishes (other than insulating varnishes), lacquers, preservatives against rust and against deterioration of wood, colorants, mordants (not for metals or for seeds), raw natural resins, metals in foil and powder form for painters, decorators, printers and artists, coatings (paints), thinners for paints, binding preparations for paints, fireproof paints, bactericidal paints, protective preparations for metals, anti-corrosive preparations, anti-rust preparations for preservation, varnishes, colorants for dyeing clothing and furniture coverings, wood stains, bleaching preparations and other substances for laundry use, cleaning, polishing, scouring and abrasive preparations, laundry blueing, soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices, scented wood, potpourris (fragrances), room fragrances, leather preservatives (polishes), creams for leather, polishing creams, parquet floor wax, polishing wax, abrasives (except dental abrasives), polishing paper, sandpaper, scouring solutions, rust removing preparations, preparations for cleaning waste pipes, shampoos for floor coverings, stain removers, scale removing preparations for household purposes, detergents other than for use in manufacturing operations and for medical purposes, washing preparations, cleaning preparations, household cleaning preparations, degreasers other than for use in manufacturing processes, shining preparations (polish) and preparations to make the leaves of plants shiny, industrial oils and greases, lubricants, dust absorbing, wetting, and binding compositions, fuels (including motor spirit) and illuminants, ethanol, bioethanol, candles and wicks for lighting, lighting fuel, firewood and charcoal (fuel), firelighters, scented candles, tapers, dust removing preparations, firewood, pharmaceutical and veterinary preparations, sanitary preparations for medical and personal hygiene purposes (except toiletries), dietetic substances adapted for medical use, food for babies, plasters, materials for dressings (except instruments), material for stopping teeth, dental wax, disinfectants for medical or sanitary purposes (except soaps), deodorants other than for personal use, preparations for destroying vermin, fungicides, herbicides, insecticides, parasiticides, acaricides, weedkillers, common metals and their alloys, metal building materials, components of metal for building construction, transportable buildings of metal, materials of metal for railway tracks, non-electric cables and wires of common metal, non-electric ironmongery, chains of metal, small items of metal hardware, screws, nails and bolts of metal, rings of metal, tubes and pipes of metal, roof coverings and roofing of metal, tiles of metal, framework of metal for building, partitions of metal, building panels of metal, stair banisters of metal, tiles of metal for building and tile floorings of metal, doors and door frames of metal (except for vehicle doors), door frames of metal, door stops of metal and door casings of metal, armour plating, door handles and doorknobs of metal, bolts, padlocks, keys, plugs and hinges of metal, doorbells, windows and window frames of metal, window stops of metal, window casings of metal, shutters of metal, outdoor blinds of metal, floors of metal, laths of metal, threshold strips of metal, staircases of metal, gutters of metal, fences, grates and grilles of metal, protective bars of metal, gates and barriers of metal, palings of metal, posts of metal, pipes and tubes of metal, non-mechanical reels of metal for flexible hoses, safes, ores, boxes of common metal, chests and containers of metal, packaging containers of metal, letter boxes of metal, lock boxes, tool boxes of metal, reinforcing materials, of metal, for concrete and shuttering of metal for concrete, rods of metal for brazing and welding, buildings of metal, cabanas of metal, scaffolding of metal, ladders and stepladders of metal, work benches of metal, works of art, statues or figurines (statuettes) of common metal, fireplaces of metal and parts therefor, swimming pools (metal structures), diving boards of metal, safety barriers of metal, rainwater collectors of metal, in particular vats and wells of metal, duckboards of metal, tree protectors of metal, trays and containers for compost and waste composters of metal, garden shelters of metal, pergolas of metal, arbours of metal, gazebos of metal, transportable greenhouses of metal, barbed wire, wire for aerials, clothes hooks of metal, support bars of metal, monuments of metal for tombs, numberplates of metal, machines and machine tools for use in agriculture, DIY and gardening, machines and machine tools for building and public works, machines and machine tools for metallurgy, or for working wood or plastic, machines and machine tools for packaging or packing, machines and machine tools for the textile industry, cultivators (machines), motorised cultivators, lawnmowers (machines), grinding machines, motors and engines (except for land vehicles), non-electric machine coupling and transmission components (except for land vehicles), electric or motorised tools and instruments for DIY and gardening, electric hand drills, hand-operated electric screwdrivers, planing machines, spray guns for painting, electric glue guns, welding apparatus, electric shears, saws (machines) and saw blades, mechanical reels for flexible hoses, extractors, agricultural implements other than hand-operated, incubators for eggs, pumps (machines), basement sump pumps, generators of electricity and power generators, wind generators, washing apparatus, cleaning machines and appliances, in particular high-pressure cleaning appliances and cleaning appliances utilising steam, cleaning apparatus and robots for swimming pools, filtering machines, electric appliances for household cleaning purposes, machines for washing purposes, in particular washing machines, dishwashers, electric machines and apparatus for carpet shampooing, kitchen apparatus and machines (other than hand-operated or electric) for chopping, milling, pressing, cutting, grating, peeling or mixing, electric knives, electric tin openers, electrically operated curtain drawing devices, waste disposals, hand tools and implements (hand-operated), in particular tools for agriculture, DIY and gardening, hoe-forks, hoes, clawed tools, forks, rakes (tools), spades (hand tools), draining spades, shovels (hand tools), pickaxes, scarifiers (hand tools), hoes (hand tools), sowers (hand tools), spreaders (hand tools), lawn clippers (hand instruments), tree pruners, non-electric scissors (hand tools) and shears, hedge trimmers (hand instruments), scythes and sickles, saws (hand tools) and saw blades (parts of tools), pliers, pincers, wrenches (hand tools), hammers (hand tools), cutter knives, nail drawers (hand tools), mitre boxes (hand tools), graving tools (hand tools), squares (hand tools), vices, insecticide sprayers (hand tools), hand tools for artists, in particular spatulas, sculptors’ scissors, tool belts, non-electric cutlery, non-electric tin openers, nutcrackers, side arms, shaving apparatus, hand-operated kitchen tools and implements for chopping, milling, pressing, cutting, grating, peeling or mixing, fireplace bellows (hand tools), scientific (not for medical purposes), nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments, apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling of electricity or power generated from solar energy, photovoltaic cells, heliographic apparatus, solar panels and sensors, fuses, sockets, plugs and other contacts (electric connections), apparatus for recording, transmission or reproduction of sound or images, magnetic data carriers, recording discs or optical discs, automatic vending machines and mechanisms for coin-operated apparatus, cash registers, calculating machines, data processing equipment and computers, computer software (recorded programs), fire-extinguishing apparatus, electric batteries, detectors, electric wires, electric relays, overalls, clothing for protection against accidents, irradiation and fire, spectacles, helmets and gloves for protection, protection devices for personal use against accidents, alarm and security systems for the protection of individuals and of goods, alarm units, swimming pool alarms, videosurveillance apparatus, systems and apparatus for the remote monitoring of babies, walkie-talkies, sensors and detectors, in particular motion sensors, smoke detectors, bells (warning devices), anti-theft warning devices, fire alarms, electric locks, interphones, electric devices for opening and closing doors, peepholes for doors, electric doorbells, thermostats, light dimmers, electric batteries, solar batteries, rechargeable batteries, weather stations, TNT decoders, socket covers, safety harness for children (except for vehicle seats or sporting equipment), thermometers (not for medical purposes), apparatus and installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes, apparatus and installations for air-conditioning purposes, fans (air-conditioning), apparatus, instruments and installations for the purification and/or softening of water, water fountains, water filtering apparatus, apparatus and machines for purification of the air, air humidifiers and dehumidifiers, heat exchangers (not parts of machines), hot water bottles, lamps, street lamps, chandeliers, ceiling lights, wall lights (lighting apparatus), lampshades, nightlights for children, light bulbs, electric pocket torches, outdoor solar lighting, electric Christmas tree lights (garlands), radiators, boilers, water heaters, heat pumps, wood-burning stoves, solar collectors (heating), refrigerators, ovens, cookers, extractor hoods for kitchens, washbasins, bathtubs, showers, toilets, toilet lids, in particular bidet-toilet seats, toilet seats, in particular for children or elderly or disabled people, sinks, bidets, water flushing installations, sauna bath installations, jacuzzis, plumbing fixtures, barbecues, vehicles, apparatus for locomotion by land, air or water, motors for land vehicles, trailers for vehicles, trailer hitches for vehicles, vehicles for DIY or gardening, wheelbarrows, goods handling carts, luggage trucks, sun-blinds adapted for automobiles, head rests for vehicle seats, child carriers for bicycles, safety seats for children for vehicles, seat belts and safety restraints for vehicles seats, precious metals and their alloys, other than for dental use, jewellery, precious stones, horological and chronometric instruments, sundials, key rings (trinkets or fobs), works of art, statues or figurines (statuettes) of precious metal, jewellery cases (caskets) or boxes of precious metals, paper and cardboard (raw, semi-processed or for stationery or printing), printing products, printed matter, newspapers, books, manuals, prospectuses, brochures, magazines, catalogues, posters and calendars, book binding material, photographs, stationery, adhesives for stationery or household use, stickers (stationery), wall stickers for interior decoration, wall claddings (decorative stickers), window stickers, artists’ materials, drawing instruments, paintbrushes, brushes (paintbrushes), house painters’ rollers, typewriters and office requisites (except furniture), instructional or teaching materials (except apparatus), printers’ type, printing blocks, wrapping paper, bags (envelopes, pouches) of paper or of plastic materials for packaging, plastic bubble packs for wrapping or packaging, rubbish bags of paper or of plastics, boxes of cardboard or paper, cardboard articles, handkerchiefs of paper, face towels of paper, table linen of paper, engravings or lithographic works of art, framed or unframed paintings (pictures) or graphic prints, watercolours (paintings), photographs, patterns for dressmaking, flower-pot covers of paper, rubber, gutta-percha, gum, asbestos, mica, plastics in extruded form for use in manufacture, packing, stopping and insulating materials, flexible pipes not of metal, rubber stoppers, junctions, not of metal, for pipes, watering hoses, waterproof or insulating packing, seals, sealant compounds for joints, insulating paints, varnishes and coatings, padding materials of rubber or plastics, plastic sheeting for agricultural purposes, foils of metal for insulating, insulating gloves, tape, fabric or varnish, artificial or synthetic resins (semi-finished products), fibreglass or glass wool for insulation, leather and imitations of leather, animal skins, hides, trunks and travelling bags, umbrellas and parasols, walking sticks, whips, harness and saddlery, pocket wallets, purses, handbags, rucksacks, wheeled shopping bags, mountaineering bags, camping bags, travel bags, beach bags, school bags, vanity cases (not fitted), collars or coats for animals, net bags for shopping or shopping bags, bags (envelopes, pouches) for packaging (of leather), boxes of leather or leatherboard, trimmings of leather for furniture, furniture coverings of leather, building materials (non-metallic), components not of metal for building construction, non-metallic rigid pipes for building, asphalt, pitch and bitumen, non-metallic transportable buildings, monuments, not of metal, buildings, not of metal, fences, grates, grilles, posts, openwork partitions, pergolas, gates and barriers (not of metal), arbours not of metal, garden shelters not of metal, transportable greenhouses not of metal, scaffolding not of metal, fireplaces not of metal and parts therefor, letter boxes of masonry, tiles, slates, roof coverings and roofing not of metal, framework not of metal for building, partitions not of metal, building panels not of metal, stair banisters not of metal, tiles not of metal for building and tile floorings not of metal, doors and door frames not of metal (except for vehicle doors), door frames not of metal, door casings not of metal, windows and window frames not of metal, window casings not of metal, shutters not of metal, outdoor blinds not of metal or textile, duckboards not of metal, floors not of metal, laths not of metal, parquet flooring, wall linings, tile floorings not of metal, threshold strips not of metal, staircases not of metal, gutters not of metal, protective bars not of metal, palings not of metal, glass used in building, insulating glass (building), windows, stained-glass windows, concrete, cement, coatings (building materials), lime, cabanas not of metal, works of art, statues or figurines (statuettes) of stone, of concrete or of marble, wood for building construction, worked timber, semi-worked timber, manufactured timber, veneer wood, decorative panels not of metal, swimming pools (structures not of metal), diving boards not of metal, safety barriers not of metal, support bars not of metal, monuments, not of metal, for tombs, furniture, in particular furniture for the kitchen, bathroom and garden, mirrors, picture frames, picture frame brackets, beds and bedding, works of art or decorations of wood, wax, plaster, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics, belts for clothing, clothes hooks not of metal, cushions, shelves, racks (furniture), packaging containers of plastic, wickerwork, wine cabinets (furniture), bottle racks, indoor blinds for windows (furnishings), woven timber blinds (furnishings), slatted indoor blinds, blinds of paper, Japanese panel blinds, curtain rods and hooks, curtain rings, curtains rails, curtain rollers, bamboo curtains, bead curtains for decoration, stair rods, screens (furniture), doors, trimmings, shelves, casters and feet for furniture, cupboard organisers (dressing rooms), furniture partitions of wood, furniture, door stops not of metal, door handles and doorknobs not of metal, window stops not of metal, mobiles (decoration), decorative wall fittings (furniture) not of textile, towel closets (furniture), coatstands (furniture), baskets not of metal, baskets of wicker, umbrella stands, fireguards, tanks not of metal for the collection of water, boxes, chests and containers of wood or of plastics, letter boxes not of metal, nor of masonry, flower-stands, flower-pot pedestals, ladders of wood or of plastics, work benches not of metal, rainwater collectors not of metal, in particular vats and wells not of metal, non-mechanical reels, not of metal, for flexible hoses, trays and containers for compost and waste composters not of metal, log baskets, kennels for household pets, pet cushions, catches, not of metal, for doors, cupboards and drawers, corner protectors for tables, door stops, non-electric household or kitchen utensils and containers, combs and sponges, brushes (except paint brushes), brush-making materials, hand-operated cleaning instruments, brooms, steelwool, cloths for cleaning (rags), unworked or semi-worked glass (except glass used in building), glasses (containers), tableware, porcelain, earthenware, bottles, works of art, statues or figurines (statuettes) of porcelain, terra-cotta or glass, toilet utensils or cases, mouth rinsing beakers, soap holders, soap boxes, perfume atomisers, towel rails, toilet paper holders, toilet brushes and toilet brush holders, refuse bins, pottery, vases, flower pots, tubs (for plants), flower-pot covers not of paper, fragrance burners, candelabras, candle jars, chamber pots, portable bathtubs for babies, watering devices, nozzles for sprinkler hoses, sprinklers, watering cans, hose guides, buckets, gardening gloves and household gloves, traps for insects, rats and mice, indoor aquaria, ropes and nets for fishing and for camouflage, tents, awnings, tarpaulins, sails, padding and stuffing materials, raw fibrous textile materials, bags and sachets (envelopes, pouches) for packaging (of textile), cables not of metal, textiles for textile use, bed and table covers, household linen, bed linen, canopies (of textile), footboards (of textile), bed valences (of textile), sleeping bags (sheeting) including baby sleep sacks, bath linen (except clothing), table linen not of paper, cushion covers, chair covers, protective covers for furniture, blinds and curtains of textile, net curtains, shower curtains, wall hangings of textile, mosquito nets, door curtains, clothing, footwear, headgear, aprons, lace and embroidery, ribbons and braid, buttons, hooks and eyes, pins and needles, artificial flowers, carpets, rugs, mats and matting, linoleum, carpeting, and other materials for covering existing floors, self-adhesive wall claddings, wall hangings (non-textile), wallpaper, artificial turf, carpets for motor vehicles, non-slip mats, bath mats, oilcloth, games and playthings, outdoor games, in particular play frames with swings, slides, swinging seats, climbing ropes, gymnastic and sporting articles, swings, sandboxes, slides, trampolines, swimming pools (play articles), kites, table tennis tables, gymnastic and sporting articles (other than clothing, footwear and mats), musical mobiles (playthings), soft toys (playthings), play mats (playthings), decorations for Christmas trees, Christmas trees of synthetic material, agricultural, horticultural and forestry products (neither prepared, nor processed), grains (seeds), fresh fruits and vegetables, live animals, natural plants and flowers, trees and shrubs, sod, straw mulch, foodstuffs for animals, dried plants for decoration.

Class 39: Transport services; Rental of garages and parking areas and providing of information relating thereto; Complex international transport ; Unloading of international freight ; Piloting; Marine towing; Transport by ship ; Rental of loading/unloading machines and apparatus ; Parcel delivery; Removal services; Shipping of goods; Freighting; Freight brokerage [forwarding (Am.)]; refrigeration storage; refrigeration storage; Storage of goods; Storage of goods; Container leasing for the shipping industry; Warehousing for the storage of vehicles ; Courier services ; Establishing maritime transport operations ; Issuing of tickets for travel; Issuing of transport tickets ; Travel reservations and bookings; Booking of places for transport; Reservation and rental, including online, of travel tickets; Transport; Freight (shipping of goods); Collection, removal, storage, forwarding and delivery of goods, luggage and parcels; Loading and unloading cargo; Loan and rental of vehicles, rail carriages, wagons, lorries, vans, cars, motorcycles, bicycles; Shipping services; Transit services; Packaging, packing and wrapping of products, goods and packages; Travel agency services; Transport and travel arrangement services; Organising of excursions; Arranging of tours and sightseeing tours; Chauffeur services; Taxi transport; Information, including online, regarding transport and travel ; Information, including online, relating to transport fares and timetables, in particular by train and car.

The contested goods and services are the following:

Class 21: Vacuum jars; Household containers; Utensils for household purposes; Glassware for household purposes; Glassware not included in other classes; Porcelain ware; Ceramics for household purposes; Combs; Brushes.

Class 35: Import agency services; Advertising agencies; Import-export agencies; Wholesale services in relation to fabrics; Wholesale services in relation to furniture; Wholesale services in relation to tableware; Wholesale services in relation to furnishings; Wholesale services in relation to foodstuffs; Wholesale services in relation to sanitary installations; Arranging of commercial and business contacts; Advertising services provided via the internet; Advertisement for others on the Internet; Rental of advertising space on the internet; Commercial information agencies; Arranging commercial transactions, for others, via online shops; Department store retail services connected with the sale of beauty products, toiletries, machines for household use, hand tools, optical goods, domestic electrical and electronic equipment.

Class 39: Transportation and storage; Providing information relating to warehousing services; Parcel receipt services; Storage; Storage and delivery of goods; Food storage services; Storage of liquids; Wrapping and packaging services; Distribution services.

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 21

The contested combs are identically contained in the opponent’s list of goods.

The contested household containers are the same as the opponent’s household containers, non-electric, since these goods are not commonly differentiated on the basis of their being electric or not. They are identical.

The contested brushes are a broad category to which the opponent’s brushes (except paintbrushes) belong. Since the Opposition Division cannot dissect ex officio the broader category of the contested goods, they are considered identical to the opponent’s goods.

The contested glassware for household purposes; glassware not included in other classes are broad categories to which the opponent’s glasses belong. Since the Opposition Division cannot dissect ex officio the broader categories of the contested goods, they are considered identical to the opponent’s goods.

The contested utensils for household purposes are a broad category to which the opponent’s household utensils, non-electric belong. Since the Opposition Division cannot dissect ex officio the broader category of the contested goods, they are considered identical to the opponent’s goods.

The contested vacuum jars are a type of container used for household purposes; therefore, they are included in the opponent’s broader category of household containers, non-electric. They are identical.

The contested porcelain ware are, de facto, identical to the opponent’s chinaware.

The contested ceramics for household purposes overlap with the opponent’s household or kitchen utensils and containers, non-electric. These goods are, therefore, identical.

Contested services in Class 35

The contested advertising agencies; advertising services provided via the internet; advertisement for others on the Internet belong to the opponent’s broader category of advertising. These services are, therefore, identical.

The contested rental of advertising space on the internet belongs to the opponent’s broader category of rental of advertising space on all means of communication. These services are, therefore, identical.

The contested arranging of commercial and business contacts; arranging commercial transactions, for others, via online shops are services related to the management of an undertaking’s business activities. For this reason, they belong to the broader category of the opponent’s consultancy and assistance in the management of commercial or industrial companies or public institutions. These services are, therefore, identical.

The contested commercial information agencies overlap with the opponent’s providing commercial information, including via directories, on the internet, including on mobile internet. They are identical.

The contested import agency services; import-export agencies are similar to the opponent’s consultancy and assistance in the management of commercial or industrial companies or public institutions, as they can have the same producers, end users and distribution channels.

The contested department store retail services connected with the sale of beauty products, toiletries overlap with the opponent’s retail services related to the aforementioned goods namely perfumery, soaps, cosmetics. They are considered identical.

The contested department store retail services connected with the sale of machines for household use, domestic electrical equipment overlap with the opponent’s retail services related to the aforementioned goods namely apparatus and installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply. They are considered identical.

The contested department store retail services connected with the sale of domestic electronic equipment overlap with the opponent’s retailing of all the aforesaid goods namely data processing apparatus. They are considered identical.

The contested department store retail services connected with the sale of optical goods are included in the broader category of the opponent’s retailing of optical apparatus and instruments. Therefore, they are identical.

The contested department store retail services connected with the sale of hand tools are included in the broader category of the opponent’s retailing of all the aforesaid goods, namely hand tools and implements (hand-operated). Therefore, they are identical.

The contested wholesale services in relation to fabrics; wholesale services in relation to furniture; wholesale services in relation to tableware; wholesale services in relation to furnishings; wholesale services in relation to foodstuffs; wholesale services in relation to sanitary installations are considered similar to the opponent’s wholesaling of fences and bar fencing, grilles, gates, small doors, posts and fence panels, grids and barred gratings, bars for railings, barriers. These services have the same nature, since both are wholesale services, and the same purpose of selling products in significant quantities, usually for resale.

Contested services in Class 39

Storage of goods is identically contained in both lists of services.

The contested storage (listed twice) includes, as a broader category, the opponent’s storage of goods. Since the Opposition Division cannot dissect ex officio the broad category of the contested services, they are considered identical to the opponent’s services.

The contested food storage services; storage of liquids belong to the opponent’s broader category of storage of goods. These services are, therefore, identical.

The contested transportation; delivery of goods; distribution services; parcel receipt services refer to the same services as, are included in the broader category of or overlap with the opponent’s transport services. They are identical.

The contested wrapping and packaging services are included in the broader category of the opponent’s packaging, packing and wrapping of products, goods and packages. They are identical.

The contested providing information relating to warehousing services is similar to the opponent’s [rental of garages and parking areas and] providing information relating thereto, since it is very common for garages and parking lots to be rented out and used for warehousing purposes. These services are usually provided by the same undertakings to the same customers.

2. Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods and services found to be identical or similar are directed at both professionals and the general public. The degree of attention varies from average to higher than average, depending on the price, specialised nature, or terms and conditions of the purchased goods or services.

3. The signs

	Glippi
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 earlier mark consists of the word ‘Lippi’ in blue upper case letters. The contested mark comprises the word ‘Glippi’. Neither word has a meaning in relation to the relevant goods and services; therefore, they both have an average degree of distinctiveness.

Visually, the contested sign incorporates the earlier mark in its entirety, and it includes an additional letter ‘G’ at its beginning. The signs differ in the blue colour of the earlier mark. As the signs coincide visually in five letters, constituting the whole of the earlier mark, and this is offset to only a limited extent by the additional letter ‘G’ in the contested sign and the colour of the earlier mark, the signs must be considered visually highly similar.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‘*LIPPI’ and differs in only the additional letter ‘G’ at the beginning of the contested sign. This differing letter is unable to counteract the impact of the coincidence in the rest of the phonemes, including the rather unusual double ‘P’ in the middle of the signs. Therefore, the signs, overall, are aurally highly similar.

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.

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark has no meaning for any of the goods and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

Account is taken of 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).

It should be noted that even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T-443/12, ancotel, EU:T:2013:605, § 54).

The goods and services are identical or similar and the signs are visually and aurally highly similar, while they lack any meaning that could differentiate them. The differences between the signs are confined to secondary elements, such as the earlier mark’s typeface and colour, and to the additional letter ‘G’ in the contested sign, which cannot counteract the similarities between them.

Considering all the above, there is a likelihood of confusion on the part of the public, even for consumers who pay a higher than average degree of attention.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration. It follows that the contested trade mark must be rejected for all the contested goods and services.

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 applicant is the losing party, she must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Marianna KONDÁS

Ferenc GAZDA

Solveiga BIEZA

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.