OPPOSITION DIVISION

OPPOSITION No B 2 696 824

Maria de los Angeles Rodriguez Leal, Avda. de la Constitución, 175, 03158 Catral,

Spain (opponent), represented by Molero Patentes y Marcas S.L., Paseo de la

Castellana, 173-Bajo Izq., 28046 Madrid, Spain (professional representative)

a g a i n s t

Omnam Nederland B.V., La Guardiaweg 5, 1043 DE Amsterdam, The Netherlands

(applicant), represented by Merkenbureau Knijff & Partners B.V.,

hats; all of the aforementioned excluding products designed to be

used in combat sports.

2. European Union trade mark application No 14 943 674 is rejected for all the

contested goods. It may proceed for the remaining goods and services.

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

PRELIMINARY REMARK:

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95

have been repealed and replaced by Regulation (EU) 2017/1001 (codification),

Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU)

2017/1431, subject to certain transitional provisions. All the references in this

Union trade mark registration No 13 844 469 for the figurative mark

Decision on Opposition No B 2 696 824 page: 2 of 5

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

Class 25: Clothing, footwear, headgear, shirts, pants, dresses, jackets, caps,

hats; all of the aforementioned excluding products designed to be used in combat

sports.

Contested goods in Class 25

The contested clothing, footwear, headgear; all of the aforementioned excluding

products designed to be used in combat sports are included in the broad categories

of the opponent’s clothing, footwear, headgear. They are, therefore, identical.

The contested shirts, pants, dresses, jackets; all of the aforementioned excluding

products designed to be used in combat sports are included in the broad category of

the opponent’s clothing. They are, therefore, identical.

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 found to be identical are directed at the public at

large. They are ordinary products, not particularly expensive and are purchased

frequently.

The degree of attention is considered to be average.

Decision on Opposition No B 2 696 824 page: 3 of 5

c) The signs

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.

As the verbal elements ‘WEN’ and ‘VEN’ are meaningless in, for example, territories

where Hungarian and Estonian are spoken and understood, the Opposition Division

finds it appropriate to focus the comparison of the signs on the Hungarian and

Estonian-speaking parts of the public.

The earlier sign is a figurative mark, representing the verbal element ‘WEN’ in

Visually, the signs coincide in the sequence of the letters ‘E-N’. However, they differ

in the first letters which are respectively ‘W’ and ‘V’. They also differ in the figurative

representation of the earlier sign.

Despite being different letters of the alphabet, ‘V’ and ‘W’ share a visual similarity as

the letter ‘W’ represents two conjointly written letters ‘V’.

Considering the above, the signs are visually similar to an above average degree.

Aurally, the pronunciation of the signs is identical because in Hungarian and

Estonian there is no difference in the pronunciation of the letters ‘W’ and ‘V’. Also the

letters ‘E’ and ‘N’ are identically contained in the same sequence in both signs. There

are no other verbal elements to set the signs aurally apart.

Decision on Opposition No B 2 696 824 page: 4 of 5

Conceptually, neither of the signs has a meaning for the public in the relevant

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.

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

normal.

e) Global assessment, other arguments and conclusion

Likelihood of confusion covers situations where the consumer directly confuses the

trade marks themselves, or where the consumer makes a connection between the

conflicting signs and assumes that the goods/services covered are from the same or

economically linked undertakings.

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

degree and aurally identical.

for the relevant public to perceive all their single elements, resulting that the small

The marks at issue are short signs, indeed, and this fact has to be considered when

evaluating a likelihood of confusion. However, the differences between them are not

sufficient to outweigh the similarities. Account is also taken of the fact that the

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). In respect of the goods in

question which are frequently purchased and ordinary goods and consumers will pay

just an average degree of attention when purchasing them, it is not likely that the

relevant consumers will recall the differences between the marks despite the fact that

they are short signs.

Decision on Opposition No B 2 696 824 page: 5 of 5

Considering all the above, the significant similarities between the signs and the

that these goods come from the same or economically linked undertakings. Hence,

there is a likelihood of confusion on the part of the Hungarian and Estonian-speaking

parts of the public. As stated above in section c) of this decision, a likelihood of

confusion for only part of the relevant public of the European Union is sufficient to

reject the contested application.

costs incurred by the opponent in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former

Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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.

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)