KitchenHit | Decision 2789835
Date Published: Sep 25, 2017
OPPOSITION No B 2 789 835
Productos Electricos Internet S.L., C/ Aribau 127, Principal 2º, 08036 Barcelona, Spain (opponent), represented by Clarke, Modet Y Cía. S.L., Rambla de Méndez Núñez, 12 - 1º Puerta 2 bis, 03002 Alicante, Spain (professional representative)
a g a i n s t
TradingUnity UG, Marie-Curie-Straße 23, 91052 Erlangen, Germany (applicant), represented by Wilde Beuger Solmecke, Kaiser-Wilhelm-Ring 27-29, 50672 Köln, Germany (professional representative).
On 21/07/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 789 835 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 15 421 829 ‘KitchenHit’. The opposition is based on Spanish trade mark registration No 3 090 630 . 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 goods and services
The services on which the opposition is based are the following:
Class 35: Retail and wholesale services in commerce or via global computer networks in connection with electrical appliances
The contested goods are the following:
Class 8: Table cutlery [knives, forks and spoons]; Cutlery.
Class 9: Kitchen weighing scales; Weighing apparatus and instruments for standard unit; Electrical scales; Electronic scales; Electronic weighing scales for kitchen use; Weights for use with weighing scales.
Class 21: Tableware, cookware and containers; Aluminium moulds [kitchen utensils]; Ramekins; Baking containers made of glass; Baking utensils; Bakeware; Baking dishes; Household containers; Frying pans; Roasting dishes; Double boilers; Food steamers, non-electric; Steamers [cookware]; Molds [kitchen utensils]; Plates; Glassware for household purposes; Non-electric griddles; Household or kitchen utensils; Utensils for household purposes; Stew-pans; Ceramics for kitchen use; Ceramics for household purposes; Cooking pots; Cooking pot sets; Cooking utensils, non-electric; Kitchen containers; Kitchen utensils; Skillets; Dutch ovens; Pressure cookers; Dishes; Serving pots; Pots; Pot lids.
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 Classes 8, 9 and 21
Similarity between retail (and wholesale) of specific goods and specific goods covered by another mark can only be found where the goods involved in the retail services and the specific goods covered by the other mark are identical.
The term ‘electrical appliances’ (retail and wholesale services in commerce or via global computer networks in connection with) lacks clarity and precision to specify the scope of protection that it gives, as it does not provide a clear indication of the goods covered. Electrical appliances – when not specified – can have different purposes, can target different consumer, can be sold through different sales channels and therefore can relate to different market sectors. When comparing ‘electrical appliances’ to the contested goods in Classes 9 and 21, some of the latter have the same nature as the goods retailed through the opponent´s services (electrical appliances), the purpose is also the same in the very broadest sense of the word, i.e. that these are appliances powered by electricity and to that extent these goods are similar to a low degree. However, in the absence of an express limitation by the opponent clarifying the vague term, it cannot be assumed that they are produced by the same companies, that their methods of use coincide, or that they share the same distribution channels or that they are in competition or complementary. As a result of the foregoing, the contested goods can only be considered similar to a low degree to those retailed via the opponent’s services.
Therefore, the condition, that the goods involved in the retail (and wholesale) services and the specific goods in Classes 8, 9 and 21 covered by the other mark must be identical, is, not fulfilled. Consequently, all the contested goods are considered being dissimilar to the services of the earlier sign.
- 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 and services 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
Irina SOTIROVA | André Gerd Günther BOSSE | 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.