OPPOSITION No B 2 726 076

Volkswagen Aktiengesellschaft, Berliner Ring 2, 38440 Wolfsburg, Germany (opponent), represented by Volkswagen Aktiengesellschaft, Martin Müller-Korf, Brieffach 011/1770, 38436 Wolfsburg, Germany (employee representative)

a g a i n s t

Vitamin Well AB, Box 22075, 10422 Stockholm, Sweden (applicant), represented by Danowsky & Partners Advokatbyrå KB, Box 16097, 10322 Stockholm, Sweden (professional representative).

On 21/09/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 726 076 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 235 955 . The opposition is based on European Union trade mark registration No 14 920 961  and European Union trade mark registration No 11 238 748 . The opponent invoked Articles 8(1)(b) and 8(5) 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 European Union trade mark registration No 11 238 748.

1. The goods

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

Class 5:        Pharmaceutical and veterinary preparations, foodstuffs for babies; plasters, materials for dressings; filled medicine cases; filled first-aid boxes; surgical dressings, materials for dressings; material for stopping teeth, dental wax; disinfectants for hygienic purposes and for chemical toilets; preparations for destroying vermin; fungicides, herbicides.

Class 30:        Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, except foodstuffs for animals; bread, pastry and confectionery, ices; honey, treacles; fruit sauces; yeast, baking-powder; table salt; mustard; vinegar, sauces, condiments; spices; ice.

Class 32:        Beers; mineral and aerated waters and other non-alcoholic beverages; fruit drinks and fruit juices, smoothies; syrups and other preparations for making beverages.

The contested goods are the following:

Class 5:        Food supplements; Vitamin drinks; Vitamin preparations; Vitamins and vitamin preparations; Mixed vitamin preparations; Vitamin C preparations; Vitamin D preparations; Vitamin B preparations; Vitamin A preparations; Liquid vitamin supplements; Multi-vitamin preparations.

Class 30:        Chocolate; Preparations made from cereals; Herbal infusions.

Class 32:        Mineral water [beverages]; Aerated water; Non-alcoholic beverages; Beverages containing vitamins; Non-alcoholic fruit extracts; Non-alcoholic beverages containing fruit juices; Flavoured waters; Flavoured carbonated beverages; Flavoured mineral water; Fruit-flavoured beverages; Low-calorie soft drinks.

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 5

The contested food supplements are similar to the opponent’s pharmaceutical and veterinary preparations. They have the same nature. They can coincide in producer, end user and distribution channels. Furthermore, they are usually complementary.

The contested vitamin drinks; vitamin preparations; vitamins and vitamin preparations; mixed vitamin preparations; vitamin C preparations; vitamin D preparations; vitamin B preparations; vitamin A preparations; liquid vitamin supplements; multi-vitamin preparations are included in the broad category of the opponent’s pharmaceutical and veterinary preparations. Therefore, they are identical.

Contested goods in Class 30

The contested preparations made from cereals includes, as a broader category the opponent’s preparations made from cereals, except foodstuffs for animals. It is impossible for the Opposition Division to filter these goods from the abovementioned category. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested herbal infusions include, or overlap with, a broader category the opponent’s tea. It is impossible for the Opposition Division to filter these goods from the abovementioned category. Since the Opposition Division cannot dissect ex officio the broad category of the applicant’s goods, they are considered identical to the opponent’s goods.

The contested chocolate is similar to the opponent’s cocoa. They have the same nature. They can coincide in producer, end user and distribution channels.

Contested goods in Class 32

Mineral water [beverages]; aerated water; non-alcoholic beverages are included identically in both lists of goods (including synonyms).

The contested beverages containing vitamins; non-alcoholic beverages containing fruit juices; flavoured waters; flavoured carbonated beverages; flavoured mineral water; fruit-flavoured beverages; low-calorie soft drinks are included in the broad category of the opponent’s other non-alcoholic beverages. Therefore, they are identical.

The contested non-alcoholic fruit extracts are included in the broad category of the opponent’s syrups and other preparations for making beverages. Therefore, they are identical.

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 found to be identical or similar are directed at the public at large and, regarding the goods in Class 5, also professionals, having particular knowledge or expertise in the field of medicine and health care.

It is apparent from the case-law that, insofar as pharmaceutical preparations are concerned, the relevant public’s degree of attention is relatively high, whether or not issued on prescription (15/12/2010, T 331/09, Tolposan, EU:T:2010:520, § 26; 15/03/2012, T 288/08, Zydus, EU:T:2012:124, § 36 and cited case-law).

In particular, medical professionals have a high degree of attentiveness when prescribing medicines. Non-professionals also have a higher degree of attention, regardless of whether the pharmaceuticals are sold without prescription, as these goods affect their state of health.

Therefore, the degree of attention may vary from average to high taking into account that some of the goods are highly specialised and can be expensive (i.e. pharmaceutical and veterinary preparations).

3. The signs

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 is a figurative sign that consists of two letters, ‘V’ and ‘W’. The letter ‘V’ appears on top of a letter ‘W’ in white and silver. It should be however noted that a mental step would be required to perceive these elements as ‘VW’ as both letters are written in a very stylised manner. Both letters are encased in a white and silver circle. These letters appear on a background in blue and black in various shades. This background is circulated by a tiny line in white and silver.

The contested mark is a figurative sign consisting of the following verbal elements ‘VITAMINWELL STOCKHOLM VW FIRST EST. IN 2006 GARVARG. Nº9’. All these elements are placed in a double circle. The verbal elements ‘VW FIRST EST. IN 2006 GARVARG. Nº9’ appear in the core circle and the remaining words, namely ‘VITAMINWELL STOCKHOLM’, are located between the core circle and the outward circle. The words are written in upper-case letters.

The verbal element ‘VW’ (if perceived at all as ‘VW’) of the earlier mark is meaningless. It is therefore distinctive for the relevant goods.

With regard to the contested sign, the above explanations regarding the verbal element ‘VW’ shall apply accordingly. Concerning the word ‘VITAMINWELL’ it does not have a clear meaning as a whole in any part of the relevant territory. However, the word ‘vitamin’ in the contested sign means, for instance in Czech, Danish, English, German, Slovak and Swedish, any of a group of substances that are essential, in small quantities, for the normal functioning of the human body. This word will be understood throughout the relevant territory because it is very similar to the equivalent words used in the official language (for example ‘vitamine’ in Dutch, ‘vitamiini’ in Finnish, ‘vitamină’ in Romanian, ‘vitamina’ in Maltese and ‘witamina’ in Polish). Furthermore, the other element of the aforesaid word, ‘WELL’, has a meaning in English (as an adverb ‘in a good or satisfactory way’, as an adjective ‘in good health; free or recovered from illness’, as a noun ‘a plentiful source or supply’ and as a verb ‘(of a liquid) rise to the surface and spill or be about to spill’; information extracted from Oxford Dictionary on 16/08/2017 at www.en.oxforddictionaries.com/definition/us/well#well-2). Therefore, the word ‘VITAMINWELL’ can be allusive with regard to most of the contested goods, especially with regard to the goods in Class 5 and 32. For the rest of the goods it has a normal degree of distinctiveness. It should be noted that for those who do not speak English, the word ‘WELL’ is distinctive with regard to all the contested goods. The word ‘STOCKHOLM’ means in some European Union official languages, such as English, Swedish, Hungarian, French, Slovenian and Romanian, the capital of Sweden. It will be also understood in other languages because it is very similar to the equivalent words used in the official EU languages (for example ‘Štokholm’ in Slovak, ‘Estocolmo’ in Spanish, ‘Στοκχόλμη’ in Greek and ‘Sztokholm’ in Polish). This word will be descriptive with regard to all the relevant goods as it informs about their origin. The remaining verbal elements, namely ‘FIRST EST. IN 2006 GARVARG. Nº9’, are negligible. It should be explained that a negligible element refers to an element that due to its size and/or position is not noticeable at first sight or is part of a complex sign. The aforesaid elements are barely perceptible. As these are likely to be disregarded by the relevant public, they will not be taken into consideration.

The earlier mark has no elements that could be considered clearly more dominant than other elements.

The elements ‘VITAMINWELL STOCKHOLM VW’ in the contested sign are the dominant elements as they are the most eye-catching.

In its letter of 06/12/2016 the opponent refers to the applicant’s ‘younger’ trademark. This argument has to be disregarded as it does not concern the contested mark.

Visually, the signs coincide in the letters ‘VW’ (if perceived as such by the public) and the circular background. However, they differ in ‘VITAMINWELL STOCKHOLM’ and the colours. Furthermore, the positioning of the verbal and figurative elements is totally different.

Therefore, the signs are visually similar to a low degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the earlier mark will be pronounced (if at all) as ‘VW’ and the contested mark as ‘VITAMINWELL STOCKHOLM VW’ (assuming the figurative element  will be identified as ‘VW’). With regard to the remaining part, namely ‘FIRST EST. IN 2006 GARVARG. Nº9’ it is very likely that it will be not pronounced due to its size and importance. The pronunciation of the marks coincides in the sound of the letters ‘VW’ to the extent that they are perceived by the relevant consumer. For those consumers who do not perceive the letters “VW” in the contested sign, but rather one letter “W”, the signs are only aurally similar to the extent that they coincide in this letter. The aural differences between the marks mentioned above will also be apparent to these consumers.

Conceptually, the earlier sign lacks any meaning in the relevant territory. Since the earlier sign will not be associated with any meaning, the signs are not conceptually similar.

Taking into account the abovementioned coincidences, the signs under comparison are similar to a very low degree.

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.

As the opponent requested to keep certain commercial data contained in the evidence confidential vis-à-vis third parties, the Opposition Division will describe the evidence only in the most general terms without divulging any such data.

According to the opponent the earlier trade marks have a reputation in Denmark, Germany and Sweden in connection with all the goods and services in Classes 1-45, including  pharmaceutical and veterinary preparations, foodstuffs for babies; plasters, materials for dressings, filled medicine cases, filled first aid boxes, materials for dressings, surgical dressings; material for stopping teeth, dental wax; disinfectants for hygienic purposes and for chemical toilets; preparations for destroying vermin; fungicides, herbicides (Class 5), coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, except foodstuffs for animals; bread, pastry and confectionery, ices; honey, treacle; fruit sauces; yeast, baking-powder; edible salt; mustard; vinegar, sauces (condiments); spices; ice (Class 30) and beers; mineral and aerated waters and other non-alcoholic beverages; fruit drinks and fruit juices, smoothies; syrups and other preparations for making beverages (Class 32).

Such claim must be properly considered given that the distinctiveness of the earlier trade mark must be taken into account in the assessment of likelihood of confusion. Indeed, the more distinctive the earlier mark, the greater will be the likelihood of confusion (11/11/1997, C-251/95, EU:C:1997:528, ‘Sabel’), and therefore marks with a highly distinctive character because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C-39/97, EU:C:1998:442, ‘Canon’).

The opponent filed the following evidence:

• An Order from the German Patent and Trade Mark Office, dated 22/10/2002, concerning an opposition filed by the opponent. On page 5 of this Order, the German Office states that ‘with respect to some of the goods and services, the Trade Mark Division assumes that the opposing trade mark is a well-known automotive trade mark with outstanding market recognition’. This decision establishes reputation for the figurative mark in relation to the above goods.

• A Decision from the Danish Board of Appeal for Patents and Trademarks, dated 20/10/2004, concerning an opposition filed by the opponent. This decision confirms, on page 13, that the opponent’s ‘UE mark should be considered well-known for cars in Denmark’. This decision establishes reputation for the figurative mark in relation to the above goods.

• A Judgment from the Swedish Patent Court of Appeal, dated 16/01/2008, concerning an opposition filed by the opponent. This decision establishes on page 2 that the opponent has a reputation for the figurative mark  mainly in relation to vehicles and parts and fittings for vehicles.

It should be noted that the opponent expressly states that ‘it is commonly known that the opponent VW is the largest car manufacturer in Europe […] This is also known and acknowledged by European trade mark authorities, and we assume that it is also known to the members of the Opposition Division of the OHIM. Instead of producing now a large number of extracts from webpages, catalogues, trade marks, statistics, advertisings and the like we only attach two decisions of oppositions in Sweden and Germany […] in which the respective trade mark authorities referred, inter alia, to the degree of fame of the mark VW’.

The opponent, in its letter of 15/05/2017, argues that it has become ‘the largest automobile manufacturer in the world in 2016’. In this respect two website links were presented by the opponent. From this evidence it can be only established that the opponent in fact is one of the car producers worldwide. No reference to the trademark in question and the earlier goods is made.

Furthermore, in its letter of 15/05/2017 the opponent refers also to more than 400 registrations obtained worldwide. In this case the opponent did not provide any representations of these trademarks and did not indicate which goods were protected under these trademarks.

The Opposition Division would like to point out that even though national decisions are admissible evidence and may have evidentiary value, especially if they originate from a Member State the territory of which is also relevant for the opposition at hand, they are not binding for the Opposition Division, in the sense that it is not mandatory to follow their conclusion.

Having examined the material listed above, the Opposition Division concludes that the evidence submitted by the opponent demonstrates that the earlier trade marks acquired a reputation and a high degree of distinctiveness through its use exclusively with regard to the automotive goods, such as cares (in Denmark, Germany and Sweden).

It should be noted that the opponent did not submit any other evidence, such as affidavits, surveys, invoices, opinion polls or articles, and the only evidence were judgments and decisions issued by courts and authorities in Denmark, Germany and Sweden.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se for the relevant goods. In the present case, the earlier trade marks as a whole have no meaning in relation to any of the goods at hand 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

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.

The goods and services are identical and similar. The similarities and dissimilarities between the marks have been established. The distinctiveness of the earlier mark is normal and the consumers’ attention may vary from average to high (the latter taking into account pharmaceutical and veterinary preparations).

Usually, the average consumer does not proceed to analyse the various details of a sign, but rather perceives it as a whole.

The signs are visually similar only to the extent that they have in common the circular background, and within it letters that could be interpreted by the public as ‘VW’. These similarities are not sufficient for a likelihood of confusion to exist, contrary to the arguments of the opponent. In the earlier mark, the background is of a circular colourful three-dimensional shape, while in the contested mark it forms a black and white two-dimensional circular shape. In addition, the contested sign has some additional letters, namely ‘VITAMINWELL STOCKHOLM’. Apart from thet the contested sign has more letters than the earlier mark. Furthermore, they differ in the shape, direction, placement, alignment, and in the way they intercept with the outer circle. The marks also differ in that the lines have different contact points, and form clearly perceivable different letters.

As explained above, the contested mark contains, inter alia, the clearly visible, separate, word elements ‘VITAMINWELL STOCKHOLM’, a phrase which, is somewhat indeterminate in meaning, and is thereby not without distinctiveness in respect of all relevant goods.

The high, and varying, levels of stylisation of the marks will be perceived by the consumer and will not go unnoticed.

The marks as a whole give a different impression as a result of the clear differences listed above. The differences between the marks are sufficiently strong to allow the relevant public applying a high degree of attention to distinguish between them, even taking into account the principle of imperfect recollection.

The differences listed above are considered sufficient to counteract the fact that the goods are found identical or similar. Therefore, consumers are unlikely to assume that the goods provided under the earlier mark and under the contested sign are provided by the same undertaking or economically-linked undertakings.

Considering all the above, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

The opponent has also based its opposition on the earlier Community trade mark No No 14 920 961 .

Since this mark is nearly identical to the one which has been compared, the only difference being in the colours, and the scope of goods which is narrower, the outcome cannot be different with respect to goods for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods.

REPUTATION – ARTICLE 8(5) CTMR

The opponent has invoked Article 8(5) in relation to earlier European Union trade mark registration No 14 920 961  and European Union trade mark registration No 11 238 748 .

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

It follows from the above that the grounds of refusal of Article 8(5) EUTMR are only applicable when the following conditions are met:

a) The signs in conflict must be either identical or similar.

b) The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

c) Risk of injury: the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T-345/08 & T-357/08, Botolist/Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes a due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have a due cause for using the contested mark. Thus, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

a) The signs

The signs have already been compared above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings, which are equally valid under Article 8(5) EUTMR.

b) Reputation of the earlier trade marks and no ‘link’ between the signs

The evidence submitted by the opponent to prove reputation and highly distinctive character of the earlier trade marks has already been examined above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings, which are equally valid under Article 8(5) EUTMR.

A stated above, the Opposition Division finds that the evidence submitted by the opponent demonstrates that the earlier trade mark acquired a reputation only with regard to the automotive goods, such as cars.

As seen above, reputation of the earlier trade mark is a requirement for the opposition to be successful under Article 8(5) EUTMR. Since it has not been established that the earlier trade marks have a reputation, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, and the opposition must be rejected.

In any case the Opposition Division also notes that the opponent did not provide any facts, arguments or evidence which could support the conclusion that the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Even if accepting reputation of the earlier trade marks, which could concern exclusively automotive products, there is no ‘link’ between the signs.

In order to establish the existence of a risk of injury, it is necessary to demonstrate that, given all the relevant factors, the relevant public will establish a link (or association) between the signs. The necessity of such a ‘link’ between the conflicting marks in consumers’ minds is not explicitly mentioned in Article 8(5) EUTMR but has been confirmed in the judgments of 23/10/2003, C-408/01, Adidas, EU:C:2003:582, § 29 and 31, and of 27/11/2008, C-252/07, Intel, EU:C:2008:655, § 66. It is not an additional requirement but merely reflects the need to determine whether the association that the public might establish between the signs is such that either detriment or unfair advantage is likely to occur after all of the factors that are relevant to the particular case have been assessed.

Possible relevant factors for the examination of a ‘link’ include (27/11/2008, C-252/07, Intel, EU:C:2008:655, § 42):

•        the degree of similarity between the signs;

•        the nature of the goods and services, including the degree of similarity or dissimilarity between those goods or services, and the relevant public;

•        the strength of the earlier mark’s reputation;

•        the degree of the earlier mark’s distinctive character, whether inherent or acquired through use;

•        the existence of likelihood of confusion on the part of the public.

This list is not exhaustive and other criteria may be relevant depending on the particular circumstances. Moreover, the existence of a ‘link’ may be established on the basis of only some of these criteria.

Therefore, taking into account and weighing up all the relevant factors of the present case, the Opposition Division concludes that when encountering the contested mark the relevant consumers will be likely to associate it with the earlier signs, that is to say, establish a mental ‘link’ between the signs. However, although a ‘link’ between the signs is a necessary condition for further assessing whether detriment or unfair advantage are likely, the existence of such a link is not sufficient, in itself, for a finding that there may be one of the forms of damage referred to in Article 8(5) EUTMR (26/09/2012, T-301/09, Citigate, EU:T:2012:473, § 96).

Whether the degree of recognition is sufficient for Article 8(5) EUTMR to be applicable depends on other factors relevant under Article 8(5) EUTMR such as, for example, the degree of similarity between the signs, the inherent characteristics of the earlier trade marks, the type of goods and services in question, the relevant consumers, etc.

As explained above the reputation of the earlier marks has been proven only with regard to automotive goods, such as cars.

The contested goods are the following:

Class 5:        Food supplements; Vitamin drinks; Vitamin preparations; Vitamins and vitamin preparations; Mixed vitamin preparations; Vitamin C preparations; Vitamin D preparations; Vitamin B preparations; Vitamin A preparations; Liquid vitamin supplements; Multi-vitamin preparations.

Class 30:        Chocolate; Preparations made from cereals; Herbal infusions.

Class 32:        Mineral water [beverages]; Aerated water; Non-alcoholic beverages; Beverages containing vitamins; Non-alcoholic fruit extracts; Non-alcoholic beverages containing fruit juices; Flavoured waters; Flavoured carbonated beverages; Flavoured mineral water; Fruit-flavoured beverages; Low-calorie soft drinks.

Regarding the applicant’s goods in Classes 5, 30 and 32 and the opponent’s goods, for which reputation have been proven (i.e. automotive goods), these goods belong to different sectors that are not directly linked and are considered dissimilar. These goods differ in their nature and purpose, their distribution channels, their sales outlets, their producers and their method of use. Furthermore, they are neither in competition with each nor complementary to each other. The consumers will not think that a company which produces automobiles will also produce vitamins, chocolate, teas or mineral waters. The opponent did not submit any other evidence that could establish the ‘link’ between the signs.

Moreover, in the present case, the signs are similar to some extent. This does not mean that the relevant public is likely to establish a link between them. When consideration is given to the goods in question, it is clear that the similarities between the signs in dispute relate to elements which are not particularly distinctive in the contested sign. Therefore, the similarities between the contested trade mark and the earlier trade marks are unlikely to bring the earlier trade marks to the mind of the average consumer when the contested goods are purchased.

Therefore, taking into account and weighing up all the relevant factors of the present case, the Opposition Division concludes that it is unlikely that the relevant public will make a mental connection between the signs in dispute, that is to say, establish a ‘link’ between them. Therefore, the opposition is not well founded under Article 8(5) EUTMR and must be rejected.

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 opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, 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.

The Opposition Division

Lena FRANKENBERG GLANTZ

Michal KRUK

Judit NÉMETH

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.