OPPOSITION No B 2 724 212

Natura Selection, S.L., Calle Ecuador, 55-67, 08029 Barcelona, Spain (opponent), represented by Sugrañes Patentes y Marcas, Calle de Provenza, 304, 08008 Barcelona, Spain (professional representative)

a g a i n s t

Europa Möbel-Verbund GmbH & Co. KG, Ampertal 8, 85777 Fahrenzhausen, Germany (applicant), represented by Preu Bohlig & Partner, Grolmanstr. 36, 10623 Berlin, Germany (professional representative).

On 26/07/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 724 212 is upheld for all the contested goods.

2.        European Union trade mark application No 15 187 818 is rejected in its entirety.

3.        The applicant bears the costs, fixed at EUR 620.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 187 818. The opposition is based on, inter alia, Spanish trade mark registrations No 3 033 573 and No 3 112 825. The opponent 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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s Spanish trade mark registrations No 3 033 573 (hereinafter ‘earlier mark No 1’) and No 3 112 825 (hereinafter ‘earlier mark No 2’).

1. The goods and services

The goods and services on which the opposition is based are the following:

Earlier mark No 1

Class 35: Retail services in shops and through world telematic networks; all of the aforementioned in connection with cosmetic and perfumery products, giftware, precious metals and their alloys and goods in precious metals or coated therewith; jewelery, precious stones; horological and chronometric instruments; furniture, mirrors, picture frames; wood products, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother of pearl, meerschaum and substitutes for all these materials or plastics; textiles and textile goods; linen and table; clothing, footwear, headgear.

Earlier mark No 2

Class 24: Fabrics and textile products not included in other classes; bed linen; table linen.

The contested goods are, after a limitation, the following:

Class 20: Picture frames; Mirrors (silvered glass); Furniture.

Class 24: Bed covers; bedding (linen); Cushion covers; Shower curtains of textile or plastic; Curtains of textile or plastic; Curtain holders of textile material; Linens; Household textiles; Covers (loose) for furniture; Quilted blankets; Coverlets (bedspreads); Fabrics; Towels of textile; Table cloths (not of paper); Table runners; table linen [not of paper].

As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services are not regarded as being similar or dissimilar to 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 20

As regards the contested picture frames; mirrors (silvered glass); furniture, the Opposition Division observes that earlier mark No 1 is registered for retail services in shops and through world telematic networks in connection with, inter alia …, furniture, mirrors, picture frames.

In this regard, the Opposition Division notes that retail services concerning the sale of particular goods are similar to a low degree to those particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

Therefore, the contested picture frames; mirrors (silvered glass); furniture are similar to a low degree to the opponent’s retail services in shops and through world telematic networks in connection with … furniture, mirrors, picture frames.

Contested goods in Class 24

Bedding (linen); fabrics are identically included in the lists of goods of the contested mark and earlier mark No 2 (including synonyms).

The contested linens include as a broader category the opponent’s bed linen. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, these goods are considered identical.

Taking into account their classification in Class 24, the contested bed covers; cushion covers; covers (loose) for furniture; quilted blankets; table cloths (not of paper); table runners; table linen [not of paper]; coverlets (bedspreads) must be considered to be principally made of textiles, like the contested curtains of textile; curtain holders of textile material; towels of textile. All these goods, as well as the contested shower curtains of textile or plastic, are considered identical to the opponent’s textile products not included in other classes, either because they are included in this broad category of the opponent’s goods or because they overlap with it.

The contested household textiles are included in or overlap with the opponent’s fabrics. Therefore, these goods are identical.

Finally, the contested curtains of plastic must be considered similar to a high degree to the opponent’s textile products not included in other classes. These goods can have the same purpose and method of use, be produced by the same manufacturers and target the same end users, and they can also be distributed through the same channels.

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 to different degrees are directed at the public at large.

The degree of attention will vary between average (e.g. for picture frames) and high (e.g. for furniture) (13/06/2013, T-636/11, MY drap, EU:T:2013:314, § 25; 16/01/2008, T-112/06, idea, EU:T:2008:10, § 37).

3. The signs

Earlier trade marks	Contested sign

The relevant territory is Spain.

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 marks and the contested sign are figurative marks. The earlier marks are formed of the word ‘natura’, written in a fairly standard, slightly italicised grey typeface, to the right of which is a depiction of the earth in black and white. The contested sign is formed of the words ‘NATURA’ and ‘HOME’, written one above the other in different, very banal, typefaces and enclosed in a banal light-grey rectangular frame.

The coinciding word ‘natura’ will be understood by the relevant public as referring to ‘nature’ (Diccionario de la lengua Española – Real Academia Española).

Contrary to the applicant’s argument, since the concept of nature has no relation to the goods and services in question, the word ‘natura’ is distinctive (03/06/2015, R 598/2015-4, NATUR / NATURA SELECTION (fig.) ET AL., § 23; 13/12/2012, T-461/11, natura, EU:T:2012:693, § 53).

The word ‘HOME’ refers to the place where one lives permanently and used as an adjective, is something made, done, or intended for use in the home. It could be translated as ‘casa’ or ‘hogar’ in Spanish. Since it is a basic English word that is often used on the market in relation to household articles, it can be safely assumed that it will be understood as such by at least a significant part of the Spanish public (08/11/2016, R 121/2016-2, HOME Relax (fig.) / HOME RELAX (fig.), § 43; 08/06/2011, R 1169/2010-2, LEOHOME / LEO, § 23; 30/05/2008, R 970/2007-2, CreaHome / CREARHOGAR (fig.), § 30).

Bearing in mind that the contested goods all correspond to household items and hence, present a link with the house or ‘HOME’, this word has a weak distinctive character in relation to the goods in question for, at least, a significant part of the Spanish public (14/07/2016, T-345/15, KRISTAL, EU:T:2016:405, § 64-66). Therefore, in the comparison that follows, the Opposition Division will take into account the significant part of the Spanish public for which ‘HOME’ will be understood and for which it is weak.

As regards the figurative elements, the typefaces of the marks and the figurative element of the contested sign consisting of a grey frame are standard and commonplace, so they are not distinctive. However, the figurative element of the earlier marks, consisting of a depiction of the earth, is neither particularly simple nor commonly used in the market in relation to the goods in question. As it is not descriptive, allusive or otherwise weak in relation to the goods in question, it is distinctive.

It follows from the aforesaid that the element ‘NATURA’ is the most distinctive element of the contested mark, whereas the earlier marks have no element that could be considered clearly more distinctive than other elements.

None of the marks has any element that could be considered clearly more dominant (visually eye-catching) than other elements.

Visually, the signs coincide in ‘natura’. However, they differ in the other word element of the contested sign, namely ‘HOME’, and in their respective graphical depictions, including their typefaces and figurative elements.

Bearing in mind that the element ‘natura’, in which the marks coincide, is the most distinctive element of the contested sign and the only verbal element of the earlier marks, they are visually similar to an average degree, in spite of the differences mentioned above.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘NA-TU-RA’. The pronunciation differs in the sound of the letters ‛HOME’ of the contested sign, which have no counterpart in the earlier marks.

Bearing in mind that the differing element ‘HOME’ is weak in relation to the goods in question, it will not be attributed much significance by the relevant public. Therefore, on account of the coincidence in ‘natura’, the signs are considered aurally similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. All the signs contain the word ‘natura’, which refers to nature. The earlier marks convey an additional concept, namely that of the earth, which has no counterpart in the contested sign. However, as this concept merely builds on the concept the marks have in common, it does not completely offset the similarity resulting from the coinciding element ‘natura’. Furthermore, the additional concept conveyed by the element ‘HOME’ of the contested sign, which is weak for the goods and services in question, does not have any particular influence on the comparison of the signs from a conceptual point of view.

Therefore, the signs are conceptually similar to an average degree.

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 marks

The distinctiveness of the earlier marks 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 marks are particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. As explained above, in the present case, the earlier trade marks as a whole have 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 marks must be seen as normal.

5. 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 degree of distinctiveness of the earlier marks is average. Moreover, their only word element, ‘natura’, is fully included as an independent distinctive element in the contested sign, ‘NATURA HOME’.

Considering 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) and bearing in mind that when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37), the differences between the signs lying in their graphical depictions – in particular, the earlier marks’ figurative element consisting of a depiction of the earth – are not sufficient to enable consumers to distinguish between the signs, since they could be overlooked.

Furthermore, although the additional element ‘HOME’ of the contested sign will also be clearly perceived, bearing in mind its weak distinctive character for the goods in Classes 20 and 24 it will not prevent confusion between the signs. Indeed, the contested sign could be perceived as merely designating a line of household items under the ‘natura’ mark.

Considering all the aforesaid, there is a likelihood of confusion on the part of the public for all the contested goods found to be identical or similar to the goods and services covered by the earlier marks.

As regards the goods found to be similar to a low degree to the opponent’s services, the similarities between the signs are considered sufficient to compensate for the low degree of similarity between the goods and services.

Given that a likelihood of confusion for the significant part of the relevant Spanish public that understands the word ‘HOME’ is sufficient to reject the contested application, there is no need to analyse the remaining part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s Spanish trade mark registrations No 3 033 573 and No 3 112 825. It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier rights No 3 033 573 and No 3 112 825 lead to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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, it 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

Carmen SÁNCHEZ PALOMARES

Marine DARTEYRE

Zuzanna STOJKOWICZ

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 will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.