OPPOSITION DIVISION
OPPOSITION No B 2 747 296
Compagnie Europèenne de la Chaussure (S.A.), 28, avenue de Flandre, 75019
Paris, France, and La Halle, société anonyme, 28, avenue de Flandre, 75019 Paris,
France (opponents), represented by Novagraaf France, Bâtiment O2, 2, rue Sarah
Bernhardt CS 90017, 92665 Asnières-sur-Seine, France (professional
representative)
a g a i n s t
Zhong Hui Lin, No. 3, Xueqiu Group, Zhengfeng Village, Nankeng Town, Xingguo
County, Ganzhou City, Jiangxi Province, People’s Republic of China (applicant),
represented by Zeller & Seyfert PartG mbB, Friedrich-Ebert-Anlage 35-37 (Tower
185), 60327 Frankfurt am Main, Germany (professional representative).
On 10/11/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 747 296 is rejected in its entirety.
2. The opponents bear the costs, fixed at EUR 300.
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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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 opponents filed an opposition against all the goods of European Union trade
mark application No 15 429 483 ‘LZH’. The opposition is based on French trade mark
registration No 133 989 818 ‘LH’. The opponents invoked Article 8(1)(b) EUTMR.
LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR
A likelihood of confusion exists if there is a risk that the public might believe that the
goods or services in question, under the assumption that they bear the marks in
question, come from the same undertaking or, as the case may be, from
economically linked undertakings. Whether a likelihood of confusion exists depends
on the appreciation in a global assessment of several factors, which are
interdependent. These factors include the similarity of the signs, the similarity of the
goods and services, the distinctiveness of the earlier mark, the distinctive and
dominant elements of the conflicting signs, and the relevant public.
Decision on Opposition No B 2 747 296 page: 2 of 5
a) The goods
The goods on which the opposition is based are the following:
Class 25: Clothing, footwear, headgear; shirts; leather or imitation leather
clothing; belts (clothing); furs (clothing); gloves (clothing); scarves;
neckties; hosiery; socks; bedroom slippers; beach, ski or sports
footwear; underwear.
The contested goods are the following:
Class 25: Pullovers; Shirts; Trousers; Outer clothing; Knitwear [clothing]; Coats;
Skirts; Dresses; Underwear; Down garments; Layettes [clothing]; Baby
sleeping bags; Swimsuits; Clothing for gymnastics; Waterproof
clothing; Raincoats; Costumes; Football boots; Headgear for wear;
Stockings; Gloves [clothing]; Scarfs; Suspenders; Shower caps; Baby
clothes; Baby bottoms; Baby bodysuits; Baby tops; Baby pants; Plastic
baby bibs; Baby layettes for clothing; Bootees (woollen baby shoes);
Baby bunting [clothing]; Under garments; Sleeping garments;
Foundation garments; Linen (Body -) [garments]; Down vests; Down
jackets.
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 25
Headgear (including synonyms: headgear for wear); gloves [clothing]; scarfs are
identically contained in both lists of goods.
The contested pullovers; shirts; trousers; outer clothing; knitwear [clothing]; coats;
skirts; dresses; underwear; down garments; layettes [clothing]; baby sleeping bags;
swimsuits; clothing for gymnastics; waterproof clothing; raincoats; costumes;
stockings; suspenders; baby clothes; baby bottoms; baby bodysuits; baby tops; baby
pants; plastic baby bibs; baby layettes for clothing; baby bunting [clothing]; under
garments; sleeping garments; foundation garments; linen (body -) [garments]; down
vests; down jackets are included in the broad category of the opponents’ clothing.
Therefore, they are identical.
The contested football boots; bootees (woollen baby shoes) are included in the broad
category of the opponents’ footwear. Therefore, they are identical.
The contested shower caps are included in the broad category of the opponents’
headgear. Therefore, they are identical.
b) Relevant public — degree of attention
The average consumer of the category of products concerned is deemed to be
reasonably well informed and reasonably observant and circumspect. It should also
be borne in mind that the average consumer’s degree of attention is likely to vary
according to the category of goods or services in question.
Decision on Opposition No B 2 747 296 page: 3 of 5
In the present case, the goods found to be identical are directed at the public at
large. The degree of attention is considered average.
c) The signs
LH LZH
Earlier trade mark Contested sign
The relevant territory is France.
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).
Both signs are word marks. The earlier mark consists of two letters, ‘LH’, whereas the
contested sign consists of three letters, ‘LZH’. Neither of the signs has any elements
that could be considered clearly more distinctive or dominant (visually eye-catching)
than other elements. Neither sign has any meaning in the relevant territory and they
do not relate in any way to the relevant goods. Therefore, they are distinctive.
Visually, the signs coincide in the letters ‘L*H’. They differ in the letter ‘*Z*’, which is
placed in the middle of the contested sign and has no counterpart in the earlier mark.
Because the letter ‘Z’ clearly separates the coinciding letters ‘L*H’, the signs can be
considered visually similar to only a low degree.
Aurally, the pronunciation of the signs coincides in the sound of the letters ‘L*H’. It
differs in the sound of the letter ‘*Z*’ in the contested mark. However, it should be
noted that the letter ‘Z’ represents a voiced sibilant sound, which is unlikely to go
unnoticed when pronounced. The presence of this sound in the contested sign also
has an impact on its length by making the pronunciation longer than that of the earlier
mark. Taking this into account, the signs are aurally similar to a low 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 opponents did not explicitly claim that their 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
Decision on Opposition No B 2 747 296 page: 4 of 5
meaning for any of the goods in question from the perspective of the public in the
relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as
normal.
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).
In the present case, the goods are identical. The signs are visually and aurally similar
to only a low degree. The conceptual aspect does not influence the comparison of
the signs for the public under consideration, leaving the consumers to rely on their
visual and aural perceptions of the signs when comparing them. The earlier mark has
a normal degree of distinctiveness, which confers on it a normal level of protection.
Bearing this in mind, the Opposition Division finds that although the relevant goods
are identical, the differences between the signs offset their similarities to the extent
that there is a significant visual and aural difference in the contested sign in the form
of the middle letter/sound ‘Z’.
Furthermore, the length of the signs may affect the differences between them. The
shorter a sign, the more easily the public is able to perceive its single elements.
Therefore, in short words, small differences may frequently lead to a different overall
impression, especially when the visual aspect plays a significant role, as is the case
when goods in Class 25 are purchased. In contrast, the public is less aware of
differences between long signs.
The signs in dispute are both short marks. The fact that they differ in one letter is a
relevant factor to consider when evaluating the likelihood of confusion between the
conflicting signs. Therefore, considering all the above, there is no likelihood of
confusion on the part of the public and the opposition must be rejected.
COSTS
According to Article 109(1) EUTMR, the losing party in opposition proceedings must
bear the fees and costs incurred by the other party.
Since the opponents are the losing parties, they must bear the costs incurred by the
applicant in the course of these proceedings.
According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3)
and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), the costs to be paid to the
applicant are the costs of representation, which are to be fixed on the basis of the
maximum rate set therein.
Decision on Opposition No B 2 747 296 page: 5 of 5
The Opposition Division
Loreto URRACA LUQUE Arkadiusz GORNY 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.
The amount determined in the fixation of the costs may only be reviewed by a
decision of the Opposition Division on request. According to Article 109(8) EUTMR
(former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be
filed within one month of the date of notification of this fixation of costs and will be
deemed to have been filed only when the review fee of EUR 100
(Annex I A(33) EUTMR) has been paid.