KAS | Decision 2754318
Date Published: Oct 1, 2017
OPPOSITION No B 2 754 318
KappAhl Sverige AB, Idrottsvägen 14, 431 24 Mölndal, Sweden (opponent), represented by Awapatent AB, Södra Hamngatan 37-41, 404 28 Göteborg, Sweden (professional representative)
a g a i n s t
Kids Army shop Ltd, Ankretts Farm, Buckeridge Lane, Worcestershire, Worcestershire DY14 9DN, The United Kingdom (applicant).
On 06/06/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 754 318 is upheld for all the contested goods:
Class 25: Clothing; footwear; headgear.
2. European Union trade mark application No 15 429 384 is rejected for all the contested goods. It may proceed for the remaining goods.
3. The applicant bears the costs, fixed at EUR 620.
REASONS:
The opponent filed an opposition against some of the goods of European Union trade mark application No 15 429 384, namely against all the goods in Class 25. The opposition is based on, inter alia, Swedish trade mark registration No 346 261. 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 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 Swedish trade mark registration No 346 261.
- The goods
The goods on which the opposition is based are the following:
Class 25: Clothing, footwear and headgear.
The contested goods are the following:
Class 25: Clothing; footwear; headgear.
Clothing; footwear; headgear are identically contained in both lists of goods.
- 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 are directed at the public at large. The degree of attention is average.
- The signs
KAXS | KAS |
Earlier trade mark | Contested sign |
The relevant territory is Sweden.
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).
Both conflicting marks are word marks composed by the terms “KAXS” and “KAS” that do not have any meaning within the relevant territory, and have therefore a normal degree of distinctiveness.
Visually and aurally, the signs coincide in ‘KA-S’. However, they differ in the letter/sound ‘X’ placed in third position in the earlier mark. Despite the difference in this letter/sound the signs are highly similar considering it is placed at the end of the signs. Furthermore, from an aural point of view, the ending sounds “-XS” and “S” are highly similar and both signs are one syllable sound marks.
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.
As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.
- 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.
The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.
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.
- Global assessment, other arguments and conclusion
The contested goods are identical to the opponent’s goods. The signs show striking similarities, both visually and aurally, on account of the fact that the contested sign comprises a verbal element that differs from the sole element of the earlier mark in one letter/sound appearing in a rather inconspicuous position. That difference, being conceptually neutral, can go unnoticed by the average consumer, formed by general public in the present case.
Account is taken of the fact that 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 an overall assessment of the relevant factors of the case, and based on the average degree of inherent distinctiveness of the earlier mark, it is concluded that the differences identified between the signs are clearly insufficient for enabling the relevant public to safely distinguish between the signs.
Considering all the above, there is a likelihood of confusion on the part of the public.
Therefore, the opposition is well founded on the basis of the opponent’s Swedish trade mark registration No 346 261. It follows that the contested trade mark must be rejected for all the contested goods.
As the earlier right, Swedish trade mark registration No 346 261, leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).
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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.
According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, 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.
The Opposition Division
Martin MITURA | Inés GARCIA LLEDO | Saida CRABBE |
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.