OPPOSITION DIVISION

OPPOSITION No B 2 825 027

Hornbach Baumarkt AG, Hornbachstr. 11, 76879 Bornheim, Germany (opponent),

represented by Beiten Burkhardt, Ganghoferstr. 33, 80339 München, Germany

(professional representative)

a g a i n s t

Linea Twee Duizend B.V.B.A., Dompel 9, 2200 Herentals, Belgium (applicant),

represented by Novagraaf Belgium S.A./N.V., Chaussée de la Hulpe 187, 1170

electric apparatus for sealing plastics (packaging); mixers

[machines]; electric knives; electric can openers; apparatus for

drawing beer under pressure; electric fruit juice extractors; food

processors; electric coffee grinders; electric cleaning apparatus and

machines; floor polishers; vacuum cleaners; vacuum cleaner hoses

and bags; washing machines for crockery; washing machines;

wringing apparatus for laundry; spin dryers.

Class 9: Scales; culinary thermometers.

Class 11: Apparatus for heating, steam generating, cooking, refrigerating,

drying; heating installation; electric kettles; barbecues; electric

refrigerators; laundry dryers, electric.

Class 21: Household, kitchen utensils and containers.

2. European Union trade mark application No 15 538 846 is rejected for all the

above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

Decision on Opposition No B 2 825 027 page: 2 of 8

REASONS:

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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),

European Union trade mark registration No 12 321 774 for the word mark ‘CENTA!’.

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

Class 11: Cookers, microwave ovens; Sinks; Extractor hoods for kitchens; Electric

cooking utensils; Plate warmers; Ice boxes, freezers and refrigerating cabinets;

Igniters.

Class 20: Furniture for kitchens.

The contested goods are the following:

Class 7: Electromechanical apparatus for preparing beverages and food; Electric

apparatus for sealing plastics (packaging); Mixers [machines]; Electric knives;

Electric can openers; Apparatus for drawing beer under pressure; Electric fruit juice

extractors; Food processors; Electric coffee grinders; Electric cleaning apparatus and

machines; Floor polishers; Vacuum cleaners; Vacuum cleaner hoses and bags;

Decision on Opposition No B 2 825 027 page: 3 of 8

lights; Air-conditioners; Electric fireplaces and heating installations; Heated cushions

and electric blankets, not for medical purposes; Electric kettles; Sterilisers;

Barbecues; Electric cooking apparatus, microwaves and ovens; Cooking hobs; Inset

hot plates; Steam extraction hoods; Inbuilt steam extraction hoods; Coffee machines

saunas.

containers; Electric apparatus for attracting and killing insects.

An interpretation of the wording of the list of goods is required to determine the scope

of protection of these goods.

The term ‘in particular’, used in the opponent’s list of goods, indicates that the

specific goods are only examples of items included in the category and that

protection is not restricted to them. In other words, it introduces a non-exhaustive list

of examples (see the judgment of 09/04/2003, T-224/01, Nu-Tride, EU:T:2003:107).

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

The relevant factors relating to the comparison of the goods or services include, inter

sales outlets, the producers, the method of use and whether they are in competition

purposes, cutters (machines), blenders for household purposes, tin openers, coffee

grinders include a wide range of devices for cooking and processing food and

beverages and for kitchen work that can be used in a domestic kitchen or in a

restaurant kitchen. Therefore, the contested electromechanical apparatus for

preparing beverages and food; electric apparatus for sealing plastics (packaging);

mixers [machines]; electric knives; electric can openers; apparatus for drawing beer

under pressure; electric fruit juice extractors; food processors; electric coffee grinders

are included in or overlap with the opponent’s abovementioned goods. Consequently,

Washing machines for crockery are identically contained in both lists of goods.

The contested washing machines include, as a broader category, the opponent’s

washing machines for crockery. Since the Opposition Division cannot dissect ex

Decision on Opposition No B 2 825 027 page: 4 of 8

dryers pertain to the overall process of cleaning. They are often provided by the

same market operators, which offer all kinds of white goods. They are sold in large

electrical stores to the public at large. Therefore, the contested goods are similar to

the opponent’s washing machines for crockery.

opponent’s freezers and refrigerating cabinets does not automatically establish

for a finding of similarity, such as producer, public, etc., are fulfilled. In the present

case, the goods at issue have different natures and purposes and they are normally

produced by different undertakings. Moreover, they target different publics.

Therefore, the goods are dissimilar.

Contested goods in Class 9

Contested goods in Class 11

The contested apparatus for heating, steam generating, cooking, heating

installations; electric kettles; barbecues; electric cooking apparatus, microwaves and

ovens; cooking hobs; Inset hot plates; coffee machines and electric coffee pots;

toasters; bread baking machines; waffle irons; rotisseries and roasting spits; plate

warmers; electric deep fryers; ice cream machines are all goods that can be used for

hoods for kitchens, as they are synonymous, and the contested inbuilt steam

extraction hoods are included in the broader category of the opponent’s extractor

hoods for kitchens. Therefore, they are identical.

The contested apparatus for refrigerating, refrigerators, ice boxes, refrigerated

display cases and freezers; built-in refrigerators are identical (e.g. the contested and

the opponent’s ice boxes) or similar to the opponent’s freezers and refrigerating

cabinets, as some of these contested goods include (e.g.the contested apparatus for

refrigerating includes the opponent’s refrigerating cabinets) or are included in (e.g.

the contested ice boxes are included in the opponent’s freezers) the opponent’s

goods and others have the same purpose, producers, relevant public and distribution

Decision on Opposition No B 2 825 027 page: 5 of 8

speaking, to the purpose of cleaning, since they pertain to the overall process of

cleaning clothes. They are similar to the opponent’s washing machines for crockery,

since they are all related, broadly speaking, to the purpose of cleaning. Moreover,

decorations and Christmas lights; air-conditioners; electric fireplaces; heated

Classes 7, 11 and 20, which are mainly kitchen apparatus for food processing,

cooking and warming apparatus for food, and kitchen furniture. The fact that some of

the contested goods, such as apparatus for heating, can be sold in the same outlets

as the opponent’s goods is not sufficient to deem them similar. These goods have

different natures, purposes and methods of use. Moreover, they are not

complementary or in competition. Therefore, they are considered dissimilar.

Contested goods in Class 21

The contested household, kitchen utensils and containers in Class 21 are similar to

the opponent’s electric cooking utensils in Class 11. Even though the former are hand

operated, unlike the applicant’s electric goods, they have the same distribution

channels, producers and relevant public.

killing insects are dissimilar to all the opponent’s goods in Classes 7, 11 and 20,

apparatus for food, and kitchen furniture. These goods have different natures,

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 are directed at the public at large and at business

customers.

The degree of attention may vary from average to high, depending on the specialised

nature of the goods, the frequency of purchase and their price.

c) The signs

Decision on Opposition No B 2 825 027 page: 6 of 8

The relevant territory is the European Union.

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.

Consequently, the Opposition Division finds it appropriate to focus the comparison of

the signs on the English-speaking part of the public, to which the signs do not convey

any meaning.

The earlier mark is a word mark consisting of the word ‘CENTA!’ followed by an

exclamation mark. The contested sign is a word mark consisting of the word

‘TRENTA’. Because they are word marks, neither of them has any element that could

distinctive. The exclamation mark of the earlier mark is used to show that the word is

As the marks coincide in four out of their five (in the earlier mark) and six (in the

contested sign) letters/sounds, they are visually and aurally similar to an average

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.

examination of likelihood of confusion will proceed.

d) Distinctiveness of the earlier mark

Decision on Opposition No B 2 825 027 page: 7 of 8

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 in question from the perspective of the public in the

relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as

from average to high. The earlier trade mark enjoys a normal degree of

distinctiveness.

The marks under comparison are visually and aurally similar to an average degree.

Moreover, the signs have no meaning that could contribute to differentiating between

them.

The differences between the marks lie only in the first letters of the signs, ‘C’ in the

earlier mark and ‘TR’ in the contested sign. However, even if generally the beginning

of words has a greater impact on the consumer, the specific circumstances of the

case may allow a different conclusion to be drawn (07/05/2009, T-185/07, CK

Creaciones Kennya, EU:T:2009:147, § 45).

the contested sign, have the same vowel sound sequence and coincide in the

In the light of the considerations above, the Opposition Division considers that,

although there are some differences in the beginning of the signs, their similarities,

residing in their having in common the majority of their letters, ‘ENTA’, prevail over

the differences in the initial letters, and the relevant public, for which neither of the

signs has a meaning, even with a higher than average degree of attentiveness, could

think that the identical and similar goods come from the same undertaking or from

economically linked undertakings.

Considering all the above, the Opposition Division finds that there is a likelihood of

confusion on the part of the English-speaking part of the public and therefore the

opposition is partly well-founded on the basis of the opponent’s European Union

trade mark registration No 12 321 774. 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

It follows from the above that the contested trade mark must be rejected for the

Decision on Opposition No B 2 825 027 page: 8 of 8

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.

bear the fees and costs incurred by the other party. According to

different apportionment of costs.

Since the opposition is successful only for part of the contested goods, both parties

have succeeded on some heads and failed on others. Consequently, each party has

to bear its own costs.

Angela DI BLASIO Michele M.

BENEDETTI-ALOISI

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