ERGO | Decision 2656984
Date Published: Sep 24, 2017
OPPOSITION No B 2 656 984
Matratzen Concord GmbH, Horbeller Str. 19, 50858 Köln, Germany (opponent), represented by Selting Rechtsanwälte, Schildergasse 32-34, 50667 Köln, Germany (professional representative)
a g a i n s t
Adam Parda, Ostrobramska 83/1102c, 04-175 Warszawa, Poland (applicant), represented by Paweł Kurcman, Leszno 8, Lok. 10, 01-192 Warsaw, Poland (professional representative).
On 21/08/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 656 984 is rejected in its entirety.
2. The opponent bears the costs, fixed at EUR 300.
REASONS:
The opponent filed an opposition against some of the goods of European Union trade mark application No 15 003 635, namely against some of the goods in Classes 6 and 19. The opposition is based on European Union trade mark registrations No 4 577 367 and No 4 577 334. The opponent invoked Article 8(1)(b) EUTMR.
ERGO touch | ERGO perfect | ERGO |
Earlier trade marks | Contested sign | |
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 goods
The goods on which the opposition is based are the following:
European Union trade mark registration No 4 577 367
Class 20: Bed slats, not of metal.
European Union trade mark registration No 4 577 334
Class 20: Bed slats, not of metal.
The contested goods are the following:
Class 6: Laths of metal.
Class 19: Laths, not of metal.
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 19
Class 19 of the Nice Classification includes mainly non-metallic building materials. The contested laths, not of metal should therefore be perceived as semi-finished products that will be used further in industry.
The opponent’s bed slats, not of metal are non-metallic structures that support mattresses, and, as indicated by the opponent, bed slats are made of laths. They are classified in Class 20 as furniture, parts of beds, which are final products that target general customers.
In general, the mere fact that one product is used for the manufacture of another will not be sufficient in itself to show similarity, as their nature, purpose, relevant public and distribution channels may be different (13/04/2011, T-98/09, T Tumesa Tubos del Mediterráneo S.A. EU:T:2011:167, § 49-51). This is applicable to the current case. The nature of the contested laths, not of metal is different from that of the opponent’s bed slats, not of metal (non-metallic construction material versus furniture). Their purposes, methods of use, distribution channels, sales outlets and usual origins are different. They are not in competition.
The opponent argues that the contested laths, not of metal are complementary to the opponent’s bed slats, not of metal. However, goods (or services) are complementary if there is a close connection between them, in the sense that one is indispensable (essential) or important (significant) for the use of the other in such a way that consumers may think that responsibility for the production of those goods or provision of those services lies with the same undertaking (11/05/2011, T-74/10, Flaco, EU:T:2011:207, § 40; 21/11/2012, T-558/11, Artis, EU:T:2012:615, § 25; 04/02/2013, T-504/11, Dignitude, EU:T:2013:57, § 44). Laths, not of metal are normally produced by producers of semi-finished construction materials and bed slats, not of metal are normally produced by furniture companies.
Moreover, bed slats, not of metal and laths of metal are never used together, by any consumer. Laths, not of metal are usually bought by furniture-producing companies, whereas bed slats, not of metal are usually bought by the end consumers. By definition, goods intended for different publics cannot be complementary (22/06/2011, T-76/09, Farma Mundi Farmaceuticos Mundi, EU:T:2011:298, § 30; 12/07/2012, T-361/11, Dolphin, EU:T:2012:377, § 48). Consequently, the Opposition Division is of the opinion that the goods in question are not complementary.
Therefore, the goods in dispute are dissimilar.
Contested goods in Class 6
Class 6 of the Nice Classification contains mainly unwrought and partly wrought common metals, including ores, as well as simple products made of them, such as metal building materials. The contested laths of metal should therefore be perceived as semi-finished products that will be used further in industry.
The above reasoning, used for the comparison of the contested goods in Class 19 (laths, not of metal) with the opponent’s bed slats, not of metal, is also applicable to the comparison of the contested goods in Class 6 (laths of metal). The contested laths of metal and the opponent’s bed slats, not of metal are therefore dissimilar.
- Conclusion
According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and 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.
The Opposition Division
Adriana Pieternella VAN ROODEN | Anna ZIÓŁKOWSKA | Pedro JURADO |
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.