CUBISM | Decision 2409426 - GROUPE CANAL+, SA v. Scheidegg & Jobst
Date Published: Sep 24, 2017
OPPOSITION DIVISION
OPPOSITION No B 2 409 426
Groupe Canal+, SA, 1, place du Spectacle, 92130 Issy Les Moulineaux, France (opponent), represented by Brandstorming, 11, rue Lincoln, 75008 Paris, France (professional representative)
a g a i n s t
Scheidegg & Jobst, Gotenweg 9, 85586 Poing, Germany (applicant).
On 30/08/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 409 426 is rejected in its entirety.
2. The opponent bears the costs.
REASONS:
The opponent filed an opposition against some of the goods of European Union trade mark application No 12 883 435 ‘CUBISM’, namely all the goods in Class 9. The opposition is based on European Union trade mark registration No 8 699 291.
. The opponent invoked Article 8(1)(b).
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.
a) The goods and services
The goods and services on which the opposition is based, following the revocation of part of the goods and services by Cancellation Decision No C 11012 of 16/11/2016:
Class 9: Decoders; Remote controls; antennas satellite dishes.
Class 35: Retailing and wholesaling of set-top boxes; Retail sale of aerials; Arranging subscriptions to audiovisual programmes; Arranging subscriptions to a television channel.
Decision on Opposition No B 2 409 426 page: 2 of 10
Class 38: Television communication; Transmission of images and videos; Television broadcasting; Broadcasting of programmes via satellite, via cable, via computer networks (in particular via the internet), and via radio waves; Audiovisual and cinematographic broadcasting, whether or not for interactive purposes; Rental of aerials and satellite dishes; Transmission of programmes and selection of television channels.
Class 41: Rental of decoders.
Class 42: Online downloading of films and other audiovisual programmes.
The contested goods and services are the following:
Class 9: Operating microscope stands; Microscope illuminating devices; Biomicroscopes; Biological microscopes; Photomicroscopes; Telescopes; Flight simulators; Flight simulators for aircraft; Meteorological instruments; Metallurgical microscopes; Macroscopes; Lasers for scientific use; Polarizing microscopes; Physics (Apparatus and instruments for -); Optical frequency metrology devices; Laboratory optical apparatus; Microscopes; Astronomical spectrographs; Spectrograph apparatus; Simulators for training personnel in the use of firearms; Simulators for training personnel in the driving of vehicles; Simulators for training personnel in the flying of aircraft; Simulators for training operators in weapons systems control; Simulators for the steering and control of vehicles; Simulators for simulating the operation of weapons; Simulators for simulating the operation of aircraft; Simulators for simulating the operation of land vehicles; Instrumentation simulators; Ejector seat training apparatus; Reflectors [for telescopes]; Reflectors [for microscopes]; Vehicle drive training simulators; Teaching apparatus and instruments; Ultramicroscopes; Particle accelerators; Wind tunnels; Weapons simulators; Photovoltaics; Media content; Databases (electronic); Software; Recorded data files; Exposed slide films; Exposed x-ray films, other than for medical use; X-ray plates [exposed] other than for medical use; Pre-recorded cassettes; Computer digital maps; Computer operating systems; Games software; Application software; Screen savers; Computer graphics software; Music-composition software; Computer software that permits games to be played; Computer software for creating dynamic websites; Typeface font computer software; Programs for computers; Interactive video software; Interactive computer software; Interactive multimedia computer programs; Interactive entertainment software for use with personal computers; Software for optical character recognition; Software for interactive television; Desktop publishing software; USB [universal serial bus] operating software; Virtual reality software; Computer databases; Digital music downloadable provided from the internet; Exposed film; Photographic plates [exposed]; Sensitized films, exposed; Recorded discs bearing images; Recorded tape cassettes; Pre-recorded videos; Tape recordings of music; Transparent films [photographic, exposed] for overhead projectors; Electronic publications, downloadable; Computer documentation in electronic form; Photographic negatives; Downloadable graphics for mobile phones; Downloadable musical sound recordings; Downloadable publications; Digital music downloadable provided from MP3 internet web sites; Holographic images; Talking books; Podcasts; Cinematographic film, exposed; Cinematographic films; Recorded discs bearing sound; Musical sound recordings; Animated cartoons in the form of cinematographic films; Animated cartoons; Digital music downloadable provided from a computer database or the internet; Pre-recorded audio tapes; Video recordings; Records [sound recordings]; Audio recordings; Audio visual recordings; Training manuals in the form of a computer program; Photosensitive media [films, exposed]; Musical video recordings; Downloadable music files; Musical recordings in the form of discs; Microfilm [exposed]; Reprographic films (sensitised -) [exposed];
Decision on Opposition No B 2 409 426 page: 3 of 10
Reprographic plates (sensitised -) [exposed]; X-ray photographs, other than for medical purposes; X-ray films, exposed; Optical disc recordings; Recorded tapes; Pre-programmed discs; Recorded data [magnetic]; Magnetic recordings; Sensitized microfilms, exposed; Downloadable ring tones for mobile phones; Telephone ring tones [downloadable]; Timetables (Electronic -); Data recorded electronically; Directories [electric or electronic]; Display devices, television receivers and film and video devices; Apparatus for the processing of images; Pouches for cinematographic apparatus; Video mixers; Touch panels; Video processors; Digital video disc recorders; Digital signage monitors; Digital televisions; Digital photo frames; Digital video disc drives; Digital video recorders; Film recording apparatus; Film recorders; Movie editing projectors; Cinematographic machines and apparatus; Film production apparatus; Motion picture projectors; Film cutting apparatus; Film strip viewers; Fluorescent screens; Cinematographic apparatus; Film cameras; Stands for televisions; Colour monitors; Television apparatus; Television recorders; Lenses for projectors; Microfilm readers; Interactive graphics screens; Interactive television terminal sets; Interactive video apparatus; Photograph projection apparatus; Video devices; Video effects apparatus; Video screens; Video tape players; Video players; Video reproducing apparatus; Television cameras; Television monitors; Set-top boxes; Projectors; Projection screens; Optical viewing screens; Video projectors; Video projection monitors; Video disc players; Camcorders; Audio devices and radio receivers; Audio apparatus; Car audio apparatus; Juke boxes, musical; Speaker enclosures; Loudspeaker systems; Loudspeakers with built in amplifiers; Speakers for record players; Audio speakers for automobiles; Speakers [audio equipment]; Loudspeakers; Headphone amplifiers; Headphone consoles; Headsets for use with computers; Headphones; Headphone-microphone combinations; High fidelity audio apparatus; High fidelity apparatus; Audio speakers for home; Racks for loudspeakers; Noise cancelling apparatus; Public address speaker systems; Radio alarm clocks; Car radios; Record players; Radio cassette tape recorders; Monitor speakers; Microphone mixers; Mixing desks [signal]; Microphone stands; Microphones; Megaphones; MP3 players; Loudspeaker stands [adapted for]; Apparatus for recording sound; Sound recorders; Tone arms for record players; Pick- up arms; Stereo amplifying apparatus; Stereo tuners; Stereo headphones; Vehicle stereos; Stereophonic apparatus; Horns for loudspeakers; Record decks; Diaphragms [acoustics]; Needles for record players; Radio sets; Transportable guitar amplifiers; Audio mixing consoles; Sound mixing apparatus; Sound mixers with integrated amplifiers; Audio mixing apparatus; Image capturing and developing devices; Racks (Photographic -); Cases adapted for photographic equipment; Bags adapted for carrying photographic apparatus; X-rays producing apparatus and installations, not for medical purposes; X-ray producing apparatus [other than for medical use]; Photographic processing apparatus; Photographic print-making apparatus; Releases (Shutter -) [photography]; Photographic darkroom lighting; Exposed photographic slides; Photographic film [exposed]; Imaging apparatus; Apparatus for recording images; Image processors; Image setting apparatus; Image stabilisers; Image synthesizers; Image converter tubes; Diaphragms [photography]; Flashlight apparatus; Flashlights [photography]; Photographic flashlamps; Transparencies [photography]; Transparency projection apparatus; Digital cameras; Infrared cameras; Camera mounts; X-ray film holders, other than for medical use; Speed measuring apparatus [photography]; Lens hoods [for cameras]; Print cutters [photographic apparatus]; Photomultiplier tubes; Photomasks; Photographic duplicating apparatus; X-ray photographic apparatus, other than for medical use; Photographic media [films, exposed]; Photographic lenses; Photographic glazing apparatus; Photographic developing apparatus; Photographic printing apparatus; Photographic apparatus and instruments; Film lenses; Pouches for photographic apparatus; Epidiascopes; X-ray film processors, other than for medical use; Single use cameras; Darkrooms [photography]; Darkroom lights; Lamps (Darkroom -)
Decision on Opposition No B 2 409 426 page: 4 of 10
[photography]; Darkroom filters; Screens for photoengraving; Centering apparatus for photographic transparencies; Frames for photographic transparencies; Radiological apparatus for industrial purposes; Plate cameras; Optical shutters; Lens filters [for cameras]; Lenses for astrophotography; Lens shutters; Lens brushes adapted for photographic use; Unsensitised photographic plates; Light sources [flashlamps] for photographic use; Heliographic apparatus; Light filters for cameras; Photosensitive glass; X-ray sensitive films [other than for medical use]; Light boxes; Photomask blanks; Plates (Carriers for dark -) [photography]; Slings for cameras; Cameras for self-developing film; Cameras; Camera filters; Camera hoods; Instruments for producing photographs; Thermography apparatus; Teleconvertors; Bags for cameras; Viewfinders [for cameras]; Viewfinders, photographic; Stands for photographic apparatus; Spools [photography]; Cameras (Bags adapted or shaped to contain -); Cases especially made for photographic apparatus and instruments; Shutter sensors; Self-timers [for cameras]; Tilting heads [for cameras]; Protective caps for cameras; Rapid scan cameras; Screens [photography]; Glazing apparatus for photographic prints; X-ray spectroscopy apparatus [other than for medical use]; X-ray scanners [other than for medical use]; Radiology screens for industrial purposes; X-ray film frames, other than for medical use; X-ray film imaging apparatus, other than for medical use; X-ray laminographic inspection apparatus, other than for medical use; X-ray apparatus not for medical purposes; Retinal cameras [other than for medical use]; Raster image processors; Angle viewfinder; Washing trays [photography]; Intensifying screens for x-ray films; Shutter releases [for cameras]; Enlarging apparatus [photography]; Enlargers; Underwater cameras; Ultraviolet filters, other than for medical use; Filters for ultraviolet rays, for photography; Drying racks [photography]; Print dryers [photographic apparatus]; Drying apparatus for photographic prints; Tomographic instruments, other than for medical use; Thermographic apparatus, other than for medical use; 3D spectacles; Containers for films; Audiovisual apparatus; Tape players; Tape drives; Audiovisual receivers; Compact disc players; CD rom drives; DVD recorders; DVD players; Film developing apparatus; Film matrices; Film processing apparatus; Film advancing winders; Film reproducing apparatus; Graphic decoders for use with audio karaoke systems; Holographic apparatus; Karaoke equipment; Cassette recorders; Laser pointers; Public address systems; Optical disc players; Time delay generators; Film dryers; Portable media players; Tape recorders; Sync generators; Head cleaning tapes [recording]; Planetariums; Multifunctional remote controls; Magnetic head cleaners [apparatus]; Magnetic tape drives; Magnetic tape erasers; Luminous pointers; Light-emitting electronic pointers; Audio/visual and photographic devices; Data storage devices; Peripherals adapted for use with computers; Computers and computer hardware; Calculators; Artificial intelligence apparatus; Storage apparatus for computer data; Data processing equipment and accessories (electrical and mechanical); Communications equipment; Computer networking and data communications equipment; Point-to-point communications equipment; Replicating apparatus; Electronic book readers; Keyboards; Signal cables for IT, AV and telecommunication; Lens; Optical apparatus and instruments; Opticians' goods; Sunglasses; Corrective eyewear; Frames for spectacles and sunglasses; Cases adapted for contact lenses; Eyeglasses; Eyewear; Spectacles [optics]; Spectacle holders; Frames for glasses; Eyeglass shields; Lenses for eyeglasses; Bars for spectacles; Glasses cases; Lens cases; Holders for contact lenses; Children's eye glasses; Pince-nez chains; Pince-nez cords; Contact lenses; Containers for contact lenses; Blanks for contact lenses; Reading glasses; Unmounted spectacle frames; Monocles; Optical glasses; Polarizing spectacles; Prescription eyewear; Clip-on sunglasses; Straps for sunglasses; Lenses for sunglasses; Optical lenses for use with sunglasses; Frames for sunglasses; Chains for sunglasses; Glacier eyeglasses; Correcting lenses [optics]; Lens blanks for eyesight correction; Glass ophthalmic lenses; Cases for sunglasses; Optical enhancers; Cases adapted for binoculars;
Decision on Opposition No B 2 409 426 page: 5 of 10
Magnifying glasses [optics]; Hunting binoculars; Lorgnettes [opera glasses]; Lorgnette frames; Thermal imaging apparatus for night vision; Image intensifiers; Observation instruments; Three dimensional viewers; Telescopic bow sights; Electron microscopes; Binoculars; Monoculars; Bomb sights; Image identifier night vision devices; Aviators' night vision devices; Toolmakers' microscopes; Aiming telescopes; Sight devices [telescopic] for terrestrial weapon use; Sight devices [telescopic] for aeronautical weapon uses; Target sights for artillery [telescopic]; Sighting telescopes for firearms; Sight devices [telescopic] for naval weapon use; Riflescopes [telescopic]; Telescopic sights; Theatre glasses; Tripods for binoculars; Residual light image amplifiers; Periscopes; Optical finders; Eyepieces; Optical lens sights; Anti-reflective lenses; Pouches for optical apparatus; Optical glass; Breathing apparatus for underwater swimming; Divers' weight belts; Divers' nose clips; Ear plugs for divers; Air tanks for use in scuba diving; Snorkels; Divers' life jackets; Diving suits; Aqualungs; Gloves for divers; Diving helmets; Divers' masks; Divers' boots; Diving weights; Diving snorkels; Scientific research and laboratory apparatus, educational apparatus and simulators; Recorded content; Information technology and audiovisual equipment; Measuring, detecting and monitoring instruments, indicators and controllers; Navigation, guidance, tracking, targeting and map making devices; Optical devices, enhancers and correctors; Safety, security, protection and signalling devices; Diving equipment; Magnets, magnetizers and demagnetizers; Devices for treatment using electricity; Apparatus, instruments and cables for electricity.
Some of the contested goods, for example set top boxes, digital video decoders are identical to the decoders on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark.
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.
In the present case, the goods presumed to be identical are directed at the public at large, or they are specialised goods directed at business customers with specific professional knowledge or expertise.
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
CUBISM
Earlier trade mark Contested sign
Decision on Opposition No B 2 409 426 page: 6 of 10
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).
When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.
The earlier mark is a figurative mark consisting of the word element “LE CUBE” written in grey standard upper case characters, preceded by a ‘+’ sign within a black rectangle. The contested sign consists of the expression ‘CUBISM’ written in black standard capital letters.
The ‘+’ sign will be perceived as such in the earlier sign; this is nevertheless a basic symbol devoid of distinctiveness. ‘CUBE’ refers to a solid object with six square surfaces which are all the same size in French and English. For the part of the public recognising ‘LE’ as a French definite article, it is a non-distinctive element. ‘CUBE’ does not have a relation with the goods and services at hand and therefore its distinctiveness is normal.
The contested sign’s term ‘CUBISM’ is meaningful in part of the relevant territory as indicating a style of art that begun in the early twentieth century, in which objects are represented as if they could be seen from several different positions at the same time, using many lines and geometric shapes (Online Collins Dictionary at https://www.collinsdictionary.com/dictionary/english/cubism). The opponent claims that this is the case, in particular, for the English and French-speaking relevant public.
However, it should also be pointed out that there may be a significant group of consumers, even in those territories where English and French is spoken, which is not familiar with ‘CUBISM’ indicating a style of art. Moreover, in some other languages of the relevant territory, such as Lithuanian or Hungarian, both ‘CUBE’ and ‘CUBISM’ are meaningless. In some territories, ‘LE’ is meaningless or carries a different meaning from the French definite article. In Hungarian, for example, it means ‘down’. Therefore, this element is also distinctive for part of the public.
The comparison, in line with the opponent’s claim, will therefore proceed taking into account only the English and French-speaking part of the public who perceives the meaning of ‘LE CUBE’ and ‘CUBISM’. This is because according to the opponent the existence of likelihood of confusion is the most probable for this part of the relevant public.
Visually, the signs coincide in ‘CUB’. They differ in the letters ‘E’/ISM and the typeface of the earlier sign, although it is fairly standard. They also differ in ‘LE’ and
Decision on Opposition No B 2 409 426 page: 7 of 10
the ‘+’ sign, although these elements have limited distinctiveness for the relevant public.
The signs are therefore visually similar to an average degree.
Aurally, the pronunciation of the signs coincides in the sound of the letters ‘CUB’ present identically in both signs. The pronunciation differs in the sounds of the letters ‘L- E’ in the earlier sign, and the ‘+’ sign, in case it is pronounced; in any event, these elements are non-distinctive, and their impact on the comparison is correspondingly limited. The pronunciation also differs in the element ‘ISM’ of the contested sign.
The signs are, therefore, aurally similar to an average degree.
Conceptually, it should be recalled that two signs are identical or similar conceptually when they are perceived as having the same or analogous semantic content (judgment of 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 24).
Consequently, the signs in conflict are conceptually dissimilar. The earlier sign refers to an object with six surfaces, while the contested sign, if understood, denotes a style of art.
The opponent submits the following Wikipedia article to prove the link between the two concepts:
The history of the term "Cubism" usually stresses the fact that Matisse referred to "cubes" in connection with a painting by Braque in 1908, and that the term was published twice by the critic Louis Vauxcelles in a similar context. However, the word "cube" was used in 1906 by another critic, Louis Chassevent, with reference not to Picasso or Braque but rather to Metzinger and Delaunay: "M. Metzinger is a mosaicist like M. Signac but he brings more precision to the cutting of his cubes of color which appear to have been made mechanically [...]".
Even in the unlikely scenario that a group of consumers would be aware of the semantic origin of the term ‘CUBISM’, they would not perceive in it a semantic content analogous to ‘CUBE’. It is apparent from the above explanation that it takes several mental steps, for even those aware of the origin of the word ‘CUBISM’, to make an abstract connection with a simple shape, ‘CUBE’.
It may be, as the opponent argues, that part of the French/English-speaking public does not recognise ‘CUBISM’ as art movement, but will perceive ‘ism’ as a suffix. However, in such a scenario ‘CUBISM’ will still remain an invented, meaningless word, and it is impossible to draw definite conclusions on any semantic meaning derived from it. This term would therefore conceptually not be similar to the word ‘CUBE’.
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.
Decision on Opposition No B 2 409 426 page: 8 of 10
According to the opponent the earlier trade mark is well-known for the French- speaking public. The opponent argues that the earlier mark designates a satellite TV receiver/decider sold since 2008, which is very successful, especially through advertising campaigns and through its website www.pluslecube.fr.
This 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, 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, Canon, EU:C:1998:442, § 18).
In making that assessment, account should be taken, in particular, of the inherent characteristics of the mark, including the fact that it does or does not contain an element descriptive of the goods or services for which it has been registered; the market share held by the mark; how intensive, geographically widespread and long standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations. (Judgment of 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 23)
The opponent submitted the following evidence:
Two screenshots from the website www.pluslecube.fr listing TV channels
available through ‘LE CUBE’;
Screenshots from www.lesoffrescanal.fr about ‘LE CUBE’, a HD WIFI
decoder, made available for any subscription to CANAL+;
French-language Wikipedia article about ‘Cube Canal+’ and partial translation
according to which in February 2009 165 000 CANAL+ subscribers rent ‘LE CUBE’;
Screenshots from websites such as O1net, hdmotion.com, about the new
satellite decoder which broadcasts series;
‘CANAL+’ brochure about ‘LE CUBE’.
Having examined the material listed above, the Opposition Division concludes that the evidence submitted by the opponent does not demonstrate that the earlier trade mark acquired a high degree of distinctiveness through its use.
The evidence only gives an indication of the existence of the earlier mark in the market of television decoders. However, the documents contain no information that could demonstrate intensive, geographically widespread and long standing use of the mark. Even if 165 000 users rented a ‘LE CUBE’ decoder in 2009, as the Wikipedia article claims, this single figure does not show long-standing use and does not allow
Decision on Opposition No B 2 409 426 page: 9 of 10
for any conclusions to be drawn on consumer perception. There is no evidence that would establish the recognition of the mark by the relevant public.
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 normal, despite the presence of some non-distinctive elements in the mark as stated above in section c) of this decision.
e) Global assessment, other arguments and conclusion
The signs are visually and aurally similar to a medium degree. They are, however, conceptually dissimilar.
Conceptual differences can in certain circumstances counteract the visual and phonetic similarities between the signs concerned. For there to be such a counteraction, at least one of the signs at issue must have, from the point of view of the relevant public, a clear and specific meaning so that the public is capable of grasping it immediately [Case T-292/01 Phillips-Van Heusen v OHIM — Pash Textilvertrieb und Einzelhandel (BASS) [2003] ECR II-4335, paragraph 54. 12/01/2006, C-361/04 P, Picaro, EU:C:2006:25 paragraph 56
The earlier mark carries the concept of an object with six surfaces, while the contested mark may be seen as meaningless. Guided by the distinct concept of ‘CUBE’, taking into account the visual and aural differences, consumers will be able to distinguish between the signs.
The contested mark may also be perceived as denoting an art style. In such an event, the signs are even further apart as there is no perceptible sematic link between the two meanings. Consumers are unlikely to make any connection between an object with six sides and a style of art. Even if some consumers could be aware of the origin of the word ‘CUBISM’, the level of abstraction required drawing a link between a cube and an art movement is not automatic but rather complex. The connection between ‘CUBE’ and ‘CUBISM’ is thus too remote for the semantic content of the two words to be considered analogous.
Indeed, the two words carry different concepts, and these distinct meanings will allow the public to set the signs apart.
This finding will apply to the reasonably well informed and reasonably observant and circumspect consumers of scientific, audio-visual, electronic apparatus, and especially to highly attentive professionals.
Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the English or French-speaking public.
This absence of a likelihood of confusion equally applies to the rest of the relevant public. Even if, as the opponent claims, the Italian, Portuguese and Spanish public understands the concept of ‘CUBE’, they will also understand the concept of ‘CUBISM’. Therefore similar considerations apply here as above.
Decision on Opposition No B 2 409 426 page: 10 of 10
The remaining part of the public for whom the elements ‘LE CUBE’/’CUBISM’ are meaningless is not likely to be confused either. This is because the signs will visually and aurally differ in four and three letters respectively, and they will only coincide in the string of three letters ‘CUB’, which does not have an independent distinctive role in either signs, moreover it is in different position in the two signs. No likelihood of confusion exists for this part of the public either.
Therefore, the opposition 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. In the present case the applicant did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.
The Opposition Division
Cynthia DEN DEKKER Marianna KONDAS Julie GOUTARD
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.