LIT LIFE | Decision 2776261
Date Published: Sep 24, 2017
OPPOSITION No B 2 776 261
Medion Ag, Am Zehnthof 77, 45307 Essen, Germany (opponent), represented by Becker & Müller, Turmstr. 22, 40878 Ratingen, Germany (professional representative)
a g a i n s t
Kailai Ye, Calle del Amor Hermoso 37,Bajo, Madrid, 28026 Madrid, Spain (applicant)
On 24/08/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 776 261 is partially upheld, namely for the following contested goods:
Class 9: Flashlamps for cameras; USB cables; Electronic cables; Electric cables; Electrical power extension cords; Coaxial cables; Ethernet cables; Telephone wires; Telegraph wires; Optical cables; Resistance wires; Jump leads; Battery leads; Connection cables; Printer cables; Cable locators; Audio cable; Power cables; Metallic cables [electric]; Measuring cables; Cable connectors; Computer cabling; Microphone cables; Modem cables; Cable harnesses; Guitar cables; Insulated electrical cables; Adapter cables (Electric -); Enamelled electric wires; Thermocouple wires; Ignition cables; Telecommunications cables; Coaxial cable connectors; Electric cables and wires; Cable junctions for electric cables; Connections for electric cables; Telephone cable heads; Ducting for electric cables; Cable splices for electric cables; Interface cables [electric]; Mounting cords [electrical]; Phone extension leads; Sheaths for electric cables; Connecting electrical cables; Markers for electric wire; Cable channels (Electric -); Wire connectors [electricity]; Conduit for electric cables; Fiber optic cables; Cable boxes (Electric -); Male connectors for electrical cables; Flexible sheaths for electric cables; Starter cables for motors; Connection blocks [electric cable]; Data transmission cables; Antenna transmission wire; Heat resistant electric wires; Audio cable connectors; Coaxial cables incorporating filters; USB cables for cellphones; Threaded electrical cable connectors; Tags for identifying electric cables; Mineral insulated electric cables; Cable identification markers for electric cables; Battery booster cables; Radio relay cables; Telephone connecting cords; Underwater power cables; Data synchronization cables; Jack cables; Sheaths for optical fibre cable; Materials for electricity mains [wires, cables]; Telephone wire connection boxes; Junction boxes for electric wires; Junction sleeves for electric cables; Aerial cables for heavy currents; Cables for optical signal transmission; Rubber covered electrical wires; Threaded cable connectors of metal; Cables for electrical signal transmission; Two-way wireless communication systems; Gender changers [cable adapters]; Gender changers for coaxial cables; Electrical cables for use in connections; Wire diameter measuring devices; Joint boxes for housing cable joints; Mobile High-Definition Link (MHL) cables; Electric cables for the transmission of sounds and images; Gender changers [cable adapters] for cell phones; Cables for transmitting and receiving cable television signals; Apparatus, instruments and cables for electricity; Optical transmitters for use with fibre optic cables; Signal cables for IT, AV and telecommunication; Optical lamps; Signalling lamps; Electric light switches; Ballasts for halogen lamps; Fluorescent lamp ballasts; Ballasts for gas discharge lamps; Darkroom lamps [photography]; Stroboscopic lamps [warning beacons]; Road warning lamps; Switchboard indicating lamps; Fluorescent lamp ballast for electric lights; Light sources [flashlamps] for photographic use; Light modulators; Light sensors; Light boxes; Light-conducting filaments; Light dimmers [regulators], electric; Sunshine recorders; Residual light image amplifiers; Dimmer switches; OLED (Organic light emitting diode) display panels; Batteries for lighting; Illumination regulators; Light switches; Stage lighting controls; Lighting ballasts; Photographic darkroom lighting; Ballasts for electrical lighting fittings; Lighting devices for taking pictures; Remote control apparatus for controlling lighting; Lighting control apparatus; Photocells for use with security lighting; Stereoscopic apparatus; Telephone apparatus; Audiovisual apparatus; Radiotelegraphy sets; Decoding apparatus; Timing apparatus; Telematic apparatus; Radiotelephony sets; Semiconductor apparatus; Meteorological instruments; Stereophonic apparatus; Telegraphs [apparatus]; Heat regulating apparatus; Teaching apparatus; Cameras [photography]; Transducers; Cinematographic cameras; Audio frequency apparatus; Radios; Telegraphic transmitting apparatus; Blueprint apparatus; Measuring apparatus; Replicating apparatus; Video recorders; Lasers; Encryption apparatus; Instrumentation simulators; Reprographic instruments; Translation apparatus; Audio conference apparatus; Phototelegraphy apparatus; Projection apparatus; Signalling apparatus; Detection apparatus; Karaoke equipment; Radio pagers; Automatic telegraph apparatus; Global Positioning System [GPS] apparatus; Intercommunication apparatus; Video conferencing apparatus; Audio apparatus; Telemetry apparatus; Electronic timing apparatus; Telephone intercom apparatus; Telecommunication apparatus; Recording apparatus; Adding machines; Radar apparatus; Memory apparatus; Thermography apparatus; Microcomputer apparatus; Facsimile machines; Video editing apparatus; Apparatus for fermentation [laboratory apparatus]; Communications apparatus; Radiotelephones; Programmable control apparatus; Film processing apparatus; Stereo amplifying apparatus; Film cutting apparatus; Portable test apparatus; Photographic duplicating apparatus; Photographic developing apparatus; Time coding apparatus; measuring; Measuring devices, electric; Regulating apparatus, electric; Amplifiers; Monitoring apparatus, electric; Electric control apparatus; Sound mixing apparatus; Portable telecommunications apparatus; Temperature indicators; Aural monitoring apparatus; Automatic control apparatus; Telematic terminal apparatus; Surveying apparatus and instruments; Photographic printing apparatus; Programmable telecommunication apparatus; Numerical control apparatus; Navigating apparatus [sextants]; Marine navigation apparatus; Global positioning instruments; Audio electronic apparatus; Wireless telephony apparatus; Electric apparatus for commutation; Housings for electrical apparatus; High-frequency apparatus; Noise cancelling apparatus; Electrical signalling apparatus; Enlarging apparatus [photography]; Electrical weighing apparatus; Signal processing apparatus; Wireless communication apparatus; Visual monitoring apparatus; Personal alarms; Mobile data apparatus; Distance recording apparatus; Apparatus for recording images; Switchgear [electric]; Sound reproduction apparatus; Remote control apparatus; Infrared optical apparatus; High fidelity apparatus; Inertial navigational instruments; Xerographic apparatus and instruments; Digital telecommunications apparatus; Electronic broadcasting apparatus; Portable fax machines; Optical apparatus and instruments; Electric communication apparatus; Distance measuring apparatus; Cinematographic machines and apparatus; Apparatus for the transmission of data; Data storage devices; Timers for automatic apparatus; Weather information apparatus; Automatic dialling apparatus; Armatures for use in electrical apparatus; Video door telephone apparatus; Audiovisual teaching apparatus; Optical measurement apparatus; Photographic apparatus and instruments; Interactive video apparatus; Navigating apparatus (Electronic -); Broadcasting equipment; Digital measuring apparatus; Apparatus for the transmission of images; Peripherals adapted for use with computers; Satellite receiving apparatus; Electronic telecommunications apparatus; Electronic surveillance apparatus; Electric telecommunications apparatus; Slide projectors; Sounding apparatus and machines; Video amplifying apparatus; Resistance measuring instruments; Photograph projection apparatus; Film production apparatus; Controllers (regulators); Signalling apparatus and instruments; Measuring apparatus and instruments; Security surveillance apparatus; Point of sale apparatus; Vehicle radios; Speed measuring instruments; Satellite transmission apparatus; Data switching apparatus; Video communications apparatus; Sound recording apparatus; Flashlight apparatus; Car audio apparatus; Direction finders; Photographic processing apparatus; Data processing apparatus; Video intercom apparatus; Network controlling apparatus; Power regulating apparatus; Audio processing apparatus; Sound transmitting apparatus; Audio switching apparatus; Photographic print-making apparatus; Video reproducing apparatus; Signal transmission apparatus; Film reproducing apparatus; Vehicle tracking apparatus; Audio amplifiers; Electrical remote control apparatus; Television decoders; Satellite navigational apparatus; Infrared detection apparatus; Meter testing apparatus; Wire communication apparatus; Digital telephone switching apparatus; Remote controls for stereos; Apparatus and instruments for microscopy; Laboratory apparatus and instruments; Radio apparatus and instruments; Word processing apparatus; DVD recorders; Character verification instruments; Resistance testing apparatus; Transmitting apparatus for radio broadcasting; Digital optical transmission apparatus; Audio mixing apparatus; Computer interface apparatus; Audio dubbing apparatus; Apparatus for the reproduction of images; Heat detecting apparatus; Data communications apparatus; Work stations [computer apparatus]; Speed checking apparatus; Plasma display apparatus; Video effects apparatus; Image scanners; Image setting apparatus; Imaging apparatus.
Class 11: Light bulbs, electric; Halogen light bulbs; Incandescent light bulbs; Light bulbs; Headlamp bulbs; Flashlight bulbs; Flourescent electric light bulbs; Compact fluorescent light bulbs; Dashboard lamp bulbs; Miniature light bulbs; Direction indicator bulbs; LED light bulbs; Tail lamp bulbs; Fixtures for incandescent light bulbs; Light bulbs for directional signals for vehicles; Lamps for directional signals of automobiles; Light bulbs for gas-discharge lamps; Lights for gas-discharge lamps; Street lamps; Incandescent lamps; Solar lamps; Wall lights; Flexible lamps; Germicidal lamps; Klieg lights; Downlights; Halogen lamps; Ceiling lights; Fluorescent lamps; Electric lamps; Chandeliers; Infrared lamps; Laboratory lamps; Gas lamps; Electric incandescent lamps; Diving lights; Lamp shades; Projector lamps; Studio lamps; Safety lamps; Inspection lamps; Aquarium lamps; Curling lamps; Lamp reflectors; Mercury lamps; Vacuum lamps; Arc lamps; Candle lamps; Helmet lights; Discharge lamps; Burners for lamps; Stroboscopic lamps [decorative]; Lamps; Lamp globes; Pedestal lamps; Oil lamps; Lamp holders; Washstand lamps; Lampshade holders; Lamp glasses; Lamp casings; Lamp chimneys; Miners' lamps; Desk lamps; Table lamps; Bedside lamps; Reflector lamps; Dynamo lights for vehicles; Portable lamps [for illumination]; Strobe lights for discos; Opaque casings for lights; Chandelier pendants; Spot lights for household illumination; Electric discharge lamps; Filaments for electric lamps; Lamps for electrical installations; Luminous discharge lamps; Lamp finials; Fluorescent lamp tubes; Lamps for outdoor use; Electric light fittings; Stroboscopic lamps [light effects]; Carbon for arc lamps; Illuminant lamps for projectors; Hanging ceiling lamps; Glass covers for lamps; Chimneys for oil lamps; Sockets for electric lights; Testing lamps for cars; Lamps for vehicle lighting; Bases for non-electric lamps; Incandescent lamps and their fittings; Hangings for lamps; Portable paper lanterns (chochin); Solar powered lamps; Bases adapted for the mounting of lamps; Lamps for christmas trees; Lamp chimneys made of glass; Germicidal lamps for purifying air; Lamps for motor land vehicles; Neon lamps for illumination; Uplighters; Electrical lamps for indoor lighting; Arc lamps [lighting fixtures]; Portable hand lamps [for illumination]; Filters for use with lamps; High intensity discharge luminaires; Counterweight fittings for pendant lamps; Anti-glare devices for automobiles [lamp fittings]; Anti-glare devices for vehicles [lamp fittings]; Standing paper lanterns [andon]; Direction indicators for cycles (Lamps for -); Roof lights [lamps]; Electric hand lamps [other than for photographic use]; Infrared lamps, not for medical purposes; Glass covers being fittings for lamps for sun lamps; Halogen lamps for incorporation into electric cookers; UV halogen metal vapour lamps; Light projectors; Lamp posts; Light diffusers; Spotlights; Combined lighting and ultraviolet apparatus; Self-luminous light sources; Fluorescent lamps with low ultra-violet light output; Decorative lights; Lighting armatures; Light bars; Emergency lighting; Lighting installations; Lighting apparatus; Lighting for display purposes; Display lighting; Floodlights; Lighting for ponds; Outdoor lighting; Torches for lighting; Lighting tracks [lighting apparatus]; Lighting fittings; Sconces [electric light fixtures]; Incandescent lighting fixtures; Magnesium filaments for lighting; Mobile light towers; Laser light projectors; Filters for stage lighting; Chinese lanterns; Fluorescent lighting tubes; Lighting devices for showcases; Lighting and lighting reflectors; Cord pendants [light fittings]; Filters for use with lighting apparatus; Light assemblies; Lighting apparatus for vehicles; Light discharge tubes; Outdoor electrical lighting fixtures; Lighting apparatus and installations; LED lighting installations; Computer controlled lighting apparatus; Decorative gas lighting sets; Fiber optic lighting fixtures; Lighting fixtures for commercial use; Flat panel lighting apparatus; Lighting fixtures for household use; Lighting installations for air vehicles; Discharge tubes, electric, for lighting; Electric track lighting units; Color filters for lighting apparatus; Light-emitting diodes [LED] lighting apparatus; Registration plates (Illumination lights for -); Reflectors for wide area lighting fixtures; Lighting being for use with security systems; Installations for lighting christmas trees; Mirror balls being lighting fittings; Christmas tree ornaments for illumination [electric lights]; Security lighting incorporating a movement activated sensor; Security lighting incorporating an infra-red activated sensor; Light sources [other than for photographic or medical use]; Security lighting incorporating a heat activated sensor; Security lighting; Lanterns for lighting; Aquarium lights; Garden lighting; Decorative gas lighting; Electrical lighting fixtures; Outdoor lighting fittings; Fluorescent lighting apparatus; Luminous tubes for lighting; Stage lighting apparatus; Decorative electric lighting apparatus; Pendant fluorescent lighting fixtures; Electric indoor lighting installations; Electric fiber lighting apparatus; Film stage lighting apparatus; Electrical lamps for outdoor lighting; Indoor electrical lighting fixtures; Indoor fluorescent lighting fixtures; Fiber optic lighting installations; Photocells (Security lighting operated by -); Lighting apparatus incorporating optical fibers; Organic light emitting diodes (OLED) lighting devices.
2. European Union trade mark application No 15 574 312 is rejected for all the above goods. It may proceed for the remaining goods.
3. Each party bears its own costs.
REASONS:
The opponent filed an opposition against some of the goods of European Union trade mark application No 15 574 312, namely against some of the goods in Classes 9 and 11. The opposition is based on European Union trade mark registration No 4 585 295.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 goods and services on which the opposition is based are the following:
Class 7: Tin openers (electric); electric generators; electric hammers; electric motors (not for land vehicles); fruit presses (electric) for household purposes; electromechanical apparatus for preparing beverages; electric hand drills; glue guns, electric; electric food processors; knives (electric); blenders, electric, for household purposes; electromechanical food preparation machines; machines and apparatus for polishing (electric); fruit presses, electric; machines and apparatus for cleaning (electric) for household purposes; electric beaters; electric shears; whisks, electric for household purposes; electric shoe polishers; machines and apparatus (electric) for carpet shampooing; food processors (electric); grinders/crushers (electric) for household purposes; coffee grinders (other than hand operated); mills for household purposes (other than hand-operated); knife grinders; vacuum cleaners; bags for use in vacuum cleaners; vacuum cleaner attachments for disseminating perfumes and disinfectants; washing machines; bread cutting machines.
Class 8: Flat irons (non-electric); non-electrical tin openers; egg slicers (non-electric); irons (non-electric hand tools); depilation appliances (electric and non-electric); hand implements for hair curling (non-electric); Depilation appliances, electric and non-electric; Hair clippers, electric and non-electric; cheese slicers (non-electric); manicure sets, electric; manicure sets; nail files, electric; fingernail polishers (electric or non-electric); nail clippers (electric or non-electric); pizza cutters (non-electric); razor cases; razors, electric and non-electric beard-clipping machines; gimlets (hand tools); milling cutters (hand tools); hand implements for hair curling (non-electric); hand tools (hand-operated).
Class 9: Magnetic encoders; magnetic data carriers; optical data media; data-processing apparatus; optical character readers; writing and/or reading implements (data processing); magnetic data carriers; mouse (data processing equipment); optical data carriers; disc exchangers (for computers); scanners [data processing equipment]; memories for data processing installations, processors (central processing units); compact discs (read-only memory); compact discs (audio-video); computers; recorded computer programs; computer software [recorded]; games programs for computers; computer operating programs (recorded); computer peripheral devices; computer programs (downloadable); computer keyboards; printers for use with computers; wrist rests for use with computers; interfaces [for computers]; laptops (computers); floppy disc drives; monitors for computers; monitors (computer hardware), navigation apparatus (computer programs) for vehicles (onboard computers); notebooks (computers); computer peripheral devices; computer programs; computer software (recorded); computer game programs; keyboards for computers; make-up removing appliances, electric; grids for electric accumulators, chargers for electric accumulators, plates for electric accumulators, electric accumulators; alarm bells, electric; connection boxes (electricity), display apparatus (electric); electronic display panels; batteries, electric; flat irons, electric; theft prevention installations, electric; electric wires; electrodynamic apparatus for the remote control of railway points; electric cables; electric capacitors; electromagnetic coils; electronic publications [downloadable]; electronic pens [visual display units]; discharge tubes, electric, other than for lighting; anti-interference devices (electricity); batteries, electric, for vehicles; electrodynamic signal remote control apparatus; photocopiers (photographic, electrostatic, thermic); inductance coils (electricity); electric devices for attracting and killing insects; wire connectors (electricity); door bells (electric); chargers for electric batteries; hair-curlers, electrically heated; welding apparatus, electric; soldering irons, electric; solenoid valves (electromagnetic switches); measuring devices, electric; electrically heated hair curlers; locks (electric); transmitters of electronic signals; electronic security tags for goods; socks, electrically heated; electronic pens (visual display units); buzzers electric; electronic pocket translators; electronic organisers; electric door bells; door openers, electric; door closers, electric; monitoring apparatus, electric; compact discs (audio-video); receivers (audio and video); tone arms for record players; head cleaning tapes [recording]; tone arms for record players; sound recording apparatus; tape-recorders; sound locating instruments; sound carriers; sound transmitting apparatus; sound amplifiers; sound-reproducing apparatus; amusement apparatus adapted for use with television receivers; temperature indicators; video telephones; loudspeaker boxes; letter scales; compact disc players; television apparatus; telephone apparatus; motion picture cameras; film cutting apparatus; radiotelephony sets; signalling bells; altimeters; cassette players; compasses; headphones; laser pointers (luminous pointers); microphones; mobile telephones; modems; navigational instruments; lenses (optics); mouse pads (mouse mats); plotters; projection apparatus; projection screens; slide projectors, radios; smartcards (cards with integrated circuits); video games adapted for use with television receivers only; walkie talkies; video cameras; video recorders; safety helmets for sports; none of the aforesaid goods being or featuring educational and/or entertainment content intended for general circulation; the aforementioned goods exclusive of board game programs for computers, computer board games and video board games for use with television receivers only, electronic board games, video board games for a connection to a television, board games software, cards/discs/tapes/wires/circuits for bearing or bearing board games and/or games software and/or arcade board games, board gaming machines including slot machines.
Class 10: Electric acupuncture apparatus; electrodes for medical use; electrocardiographs; belts, electric, for medical purposes; heating cushions, electric, for medical purposes; thermoelectric compresses (surgery), thermal compresses (electric) for surgical purposes; electrical dental apparatus; aerosol dispensers for medical purposes; sphygmomanometers; hot air apparatus (therapeutic); lamps for medical purposes; massage apparatus.
Class 11: Electric heaters for baby bottles; electric lights for Christmas trees; pressure cookers (autoclaves), electric; electrically heated carpets; discharge tubes, electric, for lighting; sockets for electric lights; baby bottle warmers (electric); electric deep fryers; footmuffs, electrically heated; footwarmers (electric or non-electric); electric light bulbs; filaments for electric lamps; heating filaments (electric); electric heating apparatus; yoghurt-makers, electric; coffee filters, electric; electric coffee percolators; electric coffee percolators; cooking utensils (electric); sockets for electric lamps; filaments for electric lamps; electric lamps; electric discharge tubes for lighting; electric fans for personal use;radiators, electric; electric pressure cookers; electrically heated carpets; waffle irons, electric; electric laundry dryers; kettles (electric); flashlights (torches); ice machines and apparatus; bicycle lights; freezers, refrigerators; air-conditioning apparatus; refrigerating containers; microwave apparatus (cooking apparatus), warming plates; stoves; torches.
Class 16: Paper tapes and cards for the recording of computer programs; inking ribbons for computer printers; paper tapes and cards for the recording of computer programs; paper tapes and cards for recording computer programs; credit card printing apparatus, non-electric; pencil sharpeners (electric or non electric); pencil sharpeners (electric or non-electric); electrocardiograph paper; typewriters (electric or non-electric); pointers (non-electronic); non of the aforesaid goods being or featuring educational and/or entertainment content intended for general circulation.
Class 28: Stationary exercise bicycles; body-building apparatus; discuses for sports; kites; skating boots with skates attached; remote controlled vehicles; model vehicles (miniature); badminton sets; paragliders; appliances for gymnastics; dumb-bells; inline skates; machines for physical exercises; skateboards; tables for indoor football.
Class 42: Computer programming; conversion of data or documents from physical to electronic media; hiring out data-processing equipment; recovery of computer data; updating of computer software; computer consultancy; copying of computer programs; updating of computer software; computer software design; rental of computer software; consultancy in the field of computers; recovery of computer data; installation of computer programs, maintenance of computer software; computer systems design; systems analysis; design of computer systems; computer software design; design of computer systems; installation of computer programs; conversion of computer programmes and data (other than physical alteration); copying of computer programs; computer software rental; maintenance of computer software; recovery of computer data; conversion of data or documents from physical to electronic media; design and maintenance of websites for third parties.
The contested goods are the following:
Class 9: Flashlamps for cameras; USB cables; Electronic cables; Electric cables; Electrical power extension cords; Coaxial cables; Ethernet cables; Telephone wires; Telegraph wires; Optical cables; Resistance wires; Jump leads; Battery leads; Connection cables; Printer cables; Cable locators; Audio cable; Power cables; Metallic cables [electric]; Measuring cables; Cable connectors; Computer cabling; Microphone cables; Modem cables; Cable harnesses; Guitar cables; Insulated electrical cables; Adapter cables (Electric -); Enamelled electric wires; Thermocouple wires; Ignition cables; Telecommunications cables; Coaxial cable connectors; Electric cables and wires; Cable junctions for electric cables; Connections for electric cables; Telephone cable heads; Ducting for electric cables; Cable splices for electric cables; Interface cables [electric]; Mounting cords [electrical]; Phone extension leads; Sheaths for electric cables; Connecting electrical cables; Markers for electric wire; Cable channels (Electric -); Wire connectors [electricity]; Conduit for electric cables; Fiber optic cables; Cable boxes (Electric -); Male connectors for electrical cables; Flexible sheaths for electric cables; Starter cables for motors; Connection blocks [electric cable]; Data transmission cables; Antenna transmission wire; Heat resistant electric wires; Audio cable connectors; Coaxial cables incorporating filters; USB cables for cellphones; Threaded electrical cable connectors; Tags for identifying electric cables; Mineral insulated electric cables; Cable identification markers for electric cables; Battery booster cables; Radio relay cables; Telephone connecting cords; Underwater power cables; Data synchronization cables; Jack cables; Sheaths for optical fibre cable; Materials for electricity mains [wires, cables]; Telephone wire connection boxes; Junction boxes for electric wires; Junction sleeves for electric cables; Aerial cables for heavy currents; Cables for optical signal transmission; Rubber covered electrical wires; Threaded cable connectors of metal; Cables for electrical signal transmission; Two-way wireless communication systems; Gender changers [cable adapters]; Gender changers for coaxial cables; Electrical cables for use in connections; Wire diameter measuring devices; Joint boxes for housing cable joints; Mobile High-Definition Link (MHL) cables; Electric cables for the transmission of sounds and images; Gender changers [cable adapters] for cell phones; Cables for transmitting and receiving cable television signals; Apparatus, instruments and cables for electricity; Optical transmitters for use with fibre optic cables; Signal cables for IT, AV and telecommunication; Optical lamps; Signalling lamps; Electric light switches; Ballasts for halogen lamps; Fluorescent lamp ballasts; Ballasts for gas discharge lamps; Darkroom lamps [photography]; Stroboscopic lamps [warning beacons]; Road warning lamps; Switchboard indicating lamps; Fluorescent lamp ballast for electric lights; Light sources [flashlamps] for photographic use; Light modulators; Light sensors; Light boxes; Light-conducting filaments; Light dimmers [regulators], electric; Sunshine recorders; Light filters for cameras; Residual light image amplifiers; Dimmer switches; OLED (Organic light emitting diode) display panels; Batteries for lighting; Illumination regulators; Light switches; Stage lighting controls; Lighting ballasts; Photographic darkroom lighting; Ballasts for electrical lighting fittings; Lighting devices for taking pictures; Remote control apparatus for controlling lighting; Lighting control apparatus; Photocells for use with security lighting; Stereoscopic apparatus; Telephone apparatus; Audiovisual apparatus; Radiotelegraphy sets; Decoding apparatus; Timing apparatus; Telematic apparatus; Radiotelephony sets; Semiconductor apparatus; Meteorological instruments; Stereophonic apparatus; Telegraphs [apparatus]; Heat regulating apparatus; Teaching apparatus; Cameras [photography]; Transducers; Cinematographic cameras; Audio frequency apparatus; Radios; Telegraphic transmitting apparatus; Blueprint apparatus; Measuring apparatus; Replicating apparatus; Video recorders; Lasers; Encryption apparatus; Instrumentation simulators; Reprographic instruments; Translation apparatus; Audio conference apparatus; Phototelegraphy apparatus; Projection apparatus; Signalling apparatus; Detection apparatus; Karaoke equipment; Radio pagers; Automatic telegraph apparatus; Global Positioning System [GPS] apparatus; Intercommunication apparatus; Video conferencing apparatus; Audio apparatus; Telemetry apparatus; Electronic timing apparatus; Telephone intercom apparatus; Telecommunication apparatus; Recording apparatus; Adding machines; Radar apparatus; Memory apparatus; Thermography apparatus; Microcomputer apparatus; Facsimile machines; Video editing apparatus; Apparatus for fermentation [laboratory apparatus]; Communications apparatus; Radiotelephones; Programmable control apparatus; Film processing apparatus; Stereo amplifying apparatus; Film cutting apparatus; Portable test apparatus; Stands for photographic apparatus; Photographic duplicating apparatus; Photographic developing apparatus; Time coding apparatus; measuring; Measuring devices, electric; Regulating apparatus, electric; Amplifiers; Telephone earpieces; Monitoring apparatus, electric; Electric control apparatus; Sound mixing apparatus; Pouches for optical apparatus; Portable telecommunications apparatus; Temperature indicators; Weighbridges; Aural monitoring apparatus; Automatic control apparatus; Telematic terminal apparatus; Surveying apparatus and instruments; Pouches for photographic apparatus; Photographic printing apparatus; Programmable telecommunication apparatus; Numerical control apparatus; Navigating apparatus [sextants]; Marine navigation apparatus; Global positioning instruments; Audio electronic apparatus; Wireless telephony apparatus; Electric apparatus for commutation; Housings for electrical apparatus; Pouches for cinematographic apparatus; High-frequency apparatus; Noise cancelling apparatus; Electrical signalling apparatus; Enlarging apparatus [photography]; Electrical weighing apparatus; Signal processing apparatus; Wireless communication apparatus; Visual monitoring apparatus; Personal alarms; Mobile data apparatus; Distance recording apparatus; Apparatus for recording images; Switchgear [electric]; Sound reproduction apparatus; Remote control apparatus; Infrared optical apparatus; High fidelity apparatus; Inertial navigational instruments; Xerographic apparatus and instruments; Digital telecommunications apparatus; Electronic broadcasting apparatus; Portable fax machines; Optical apparatus and instruments; Electric communication apparatus; Distance measuring apparatus; Cinematographic machines and apparatus; Apparatus for the transmission of data; Data storage devices; Timers for automatic apparatus; Weather information apparatus; Automatic dialling apparatus; Armatures for use in electrical apparatus; Video door telephone apparatus; Audiovisual teaching apparatus; Optical measurement apparatus; Photographic apparatus and instruments; Interactive video apparatus; Navigating apparatus (Electronic -); Graphic recorders; Broadcasting equipment; Digital measuring apparatus; Apparatus for the transmission of images; Battery testers; Peripherals adapted for use with computers; Satellite receiving apparatus; Electronic telecommunications apparatus; Electronic surveillance apparatus; Electric telecommunications apparatus; Slide projectors; Sounding apparatus and machines; Video amplifying apparatus; Resistance measuring instruments; Photograph projection apparatus; Film production apparatus; Controllers (regulators); Signalling apparatus and instruments; Measuring apparatus and instruments; Security surveillance apparatus; Point of sale apparatus; Vehicle radios; Speed measuring instruments; Satellite transmission apparatus; Data switching apparatus; Video communications apparatus; Sound recording apparatus; Flashlight apparatus; Car audio apparatus; Direction finders; Photographic processing apparatus; Data processing apparatus; Video intercom apparatus; Network controlling apparatus; Power regulating apparatus; Audio processing apparatus; Sound transmitting apparatus; Audio switching apparatus; Photographic print-making apparatus; Video reproducing apparatus; Signal transmission apparatus; Film reproducing apparatus; Vehicle tracking apparatus; Audio amplifiers; Electrical remote control apparatus; Television decoders; Satellite navigational apparatus; Infrared detection apparatus; Meter testing apparatus; Connectors for telecommunication apparatus; Wire communication apparatus; Digital telephone switching apparatus; Remote controls for stereos; Apparatus and instruments for microscopy; Laboratory apparatus and instruments; Beeper carrying cases; Filters for television sets; Tripods for surveying apparatus; Radio apparatus and instruments; Word processing apparatus; DVD recorders; Character verification instruments; Resistance testing apparatus; Transmitting apparatus for radio broadcasting; Digital optical transmission apparatus; Audio mixing apparatus; Computer interface apparatus; Audio dubbing apparatus; Apparatus for the reproduction of images; Heat detecting apparatus; Data communications apparatus; Work stations [computer apparatus]; Speed checking apparatus; Plasma display apparatus; Video effects apparatus; Image scanners; Image setting apparatus; Cases adapted for photographic equipment; Imaging apparatus.
Class 11: Light bulbs, electric; Halogen light bulbs; Incandescent light bulbs; Light bulbs; Headlamp bulbs; Flashlight bulbs; Flourescent electric light bulbs; Compact fluorescent light bulbs; Dashboard lamp bulbs; Miniature light bulbs; Direction indicator bulbs; LED light bulbs; Tail lamp bulbs; Fixtures for incandescent light bulbs; Light bulbs for directional signals for vehicles; Lamps for directional signals of automobiles; Light bulbs for gas-discharge lamps; Lights for gas-discharge lamps; Street lamps; Incandescent lamps; Solar lamps; Wall lights; Flexible lamps; Germicidal lamps; Klieg lights; Downlights; Halogen lamps; Ceiling lights; Fluorescent lamps; Electric lamps; Chandeliers; Infrared lamps; Laboratory lamps; Gas lamps; Electric incandescent lamps; Diving lights; Lamp shades; Projector lamps; Studio lamps; Safety lamps; Inspection lamps; Aquarium lamps; Curling lamps; Lamp reflectors; Mercury lamps; Vacuum lamps; Arc lamps; Candle lamps; Helmet lights; Discharge lamps; Burners for lamps; Stroboscopic lamps [decorative]; Lamps; Lamp globes; Pedestal lamps; Oil lamps; Lamp holders; Washstand lamps; Lampshade holders; Lamp glasses; Lamp casings; Lamp chimneys; Miners' lamps; Desk lamps; Table lamps; Bedside lamps; Reflector lamps; Sun lamps for tanning purposes; Dynamo lights for vehicles; Portable lamps [for illumination]; Strobe lights for discos; Opaque casings for lights; Chandelier pendants; Spot lights for household illumination; Electric discharge lamps; Filaments for electric lamps; Lamps for electrical installations; Luminous discharge lamps; Lamp finials; Fluorescent lamp tubes; Lamps for outdoor use; Electric light fittings; Stroboscopic lamps [light effects]; Carbon for arc lamps; Illuminant lamps for projectors; Hanging ceiling lamps; Glass covers for lamps; Chimneys for oil lamps; Sockets for electric lights; Testing lamps for cars; Lamps for vehicle lighting; Bases for non-electric lamps; Tanning apparatus [sun lamps]; Incandescent lamps and their fittings; Hangings for lamps; Portable paper lanterns (chochin); Solar powered lamps; Bases adapted for the mounting of lamps; Lamps for christmas trees; Lamp chimneys made of glass; Germicidal lamps for purifying air; Lamps for motor land vehicles; Ultraviolet ray lamps, not for medical purposes; Neon lamps for illumination; Uplighters; Electrical lamps for indoor lighting; Arc lamps [lighting fixtures]; Portable hand lamps [for illumination]; Filters for use with lamps; High intensity discharge luminaires; Counterweight fittings for pendant lamps; Ultra-violet sun ray lamps for cosmetic purposes; Anti-glare devices for automobiles [lamp fittings]; Anti-glare devices for vehicles [lamp fittings]; Infrared lamps for drying the hair; Standing paper lanterns [andon]; Direction indicators for cycles (Lamps for -); Roof lights [lamps]; Electric hand lamps [other than for photographic use]; Ultraviolet sun ray lamps, other than for medical use; Infrared lamps, not for medical purposes; Glass covers being fittings for lamps for sun lamps; Halogen lamps for incorporation into electric cookers; UV halogen metal vapour lamps; Light projectors; Lamp posts; Light diffusers; Spotlights; Combined lighting and ultraviolet apparatus; Self-luminous light sources; Louvres for light deflection; Screens for directing light; Reflectors for light deflection; Flange light fittings; Shades for light sources; Screens for controlling light; Indoor fluorescent electrical lighting fittings; Louvres for light control; Reflectors for light control; Fluorescent lamps with low ultra-violet light output; Sunlight collecting apparatus for heating purposes; Light filters [other than for medical or photographic use]; Solar thermal collectors [heating]; Decorative lights; Lighting armatures; Light bars; Emergency lighting; Lighting installations; Lighting apparatus; Lighting for display purposes; Display lighting; Floodlights; Lighting for ponds; Outdoor lighting; Torches for lighting; Lighting tracks [lighting apparatus]; Lighting fittings; Sconces [electric light fixtures]; Incandescent lighting fixtures; Magnesium filaments for lighting; Mobile light towers; Laser light projectors; Filters for stage lighting; Chinese lanterns; Fluorescent lighting tubes; Lighting devices for showcases; Lighting and lighting reflectors; Cord pendants [light fittings]; Filters for use with lighting apparatus; Light assemblies; Lighting apparatus for vehicles; Light discharge tubes; Outdoor electrical lighting fixtures; Lighting apparatus and installations; LED lighting installations; Computer controlled lighting apparatus; Decorative gas lighting sets; Fiber optic lighting fixtures; Lighting fixtures for commercial use; Flat panel lighting apparatus; Lighting fixtures for household use; Lighting installations for air vehicles; Discharge tubes, electric, for lighting; Electric track lighting units; Color filters for lighting apparatus; Light-emitting diodes [LED] lighting apparatus; Registration plates (Illumination lights for -); Reflectors for wide area lighting fixtures; Lighting being for use with security systems; Installations for lighting christmas trees; Mirror balls being lighting fittings; Christmas tree ornaments for illumination [electric lights]; Security lighting incorporating a movement activated sensor; Security lighting incorporating an infra-red activated sensor; Light sources [other than for photographic or medical use]; Security lighting incorporating a heat activated sensor; Security lighting; Lanterns for lighting; Aquarium lights; Garden lighting; Decorative gas lighting; Electrical lighting fixtures; Outdoor lighting fittings; Fluorescent lighting apparatus; Luminous tubes for lighting; Stage lighting apparatus; Decorative electric lighting apparatus; Pendant fluorescent lighting fixtures; Electric indoor lighting installations; Electric fiber lighting apparatus; Film stage lighting apparatus; Electrical lamps for outdoor lighting; Indoor electrical lighting fixtures; Indoor fluorescent lighting fixtures; Fiber optic lighting installations; Photocells (Security lighting operated by -); Lighting apparatus incorporating optical fibers; Organic light emitting diodes (OLED) lighting devices.
An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.
The term ‘exclusively’, used in the opponent’s list of goods to show the relationship of individual goods and services with a broader category, is exclusive and restricts the scope of protection only to the specifically listed goods.
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 9
In order to avoid unnecessary repetition, the Opposition Division notes, as a preliminary point, that all the opponent's goods in this class are subject to the following limitation: none of the aforesaid goods being or featuring educational and/or entertainment content intended for general circulation; the aforementioned goods exclusive of board game programs for computers, computer board games and video board games for use with television receivers only, electronic board games, video board games for a connection to a television, board games software, cards/discs/tapes/wires/circuits for bearing or bearing board games and/or games software and/or arcade board games, board gaming machines including slot machines. References to any of the opponent's goods in Class 9 in the present decision shall be understood as containing also said limitation.
The contested two-way wireless communication systems; stereoscopic apparatus; audiovisual apparatus; timing apparatus; meteorological instruments; heat regulating apparatus; teaching apparatus; audio frequency apparatus; measuring apparatus; detection apparatus; radio pagers; electronic timing apparatus; radar apparatus; thermography apparatus; apparatus for fermentation [laboratory apparatus]; time coding apparatus, measuring; measuring devices, electric; monitoring apparatus, electric; temperature indicators; surveying apparatus and instruments; high-frequency apparatus; navigating apparatus [sextants]; marine navigation apparatus; electrical weighing apparatus; distance recording apparatus; infrared optical apparatus; inertial navigational instruments; optical apparatus and instruments; distance measuring apparatus; timers for automatic apparatus; audiovisual teaching apparatus; optical measurement apparatus; digital measuring apparatus; sounding apparatus and machines; resistance measuring instruments; measuring apparatus and instruments; security surveillance apparatus; speed measuring instruments; data processing apparatus; direction finders; satellite navigational apparatus; infrared detection apparatus; apparatus and instruments for microscopy; laboratory apparatus and instruments; resistance testing apparatus; digital optical transmission apparatus; heat detecting apparatus; speed checking apparatus are included in, include or overlap with the broad categories of the opponent’s data-processing apparatus; measuring devices, electric. Therefore, they are identical.
The opponent's laser pointers (luminous pointers) are included in the broad category of the contested lasers. Since the opposition division cannot dissect ex officio the broad categories of the contested goods they are considered identical to the opponent’s goods.
The contested remote control apparatus for controlling lighting; lighting control apparatus; signalling apparatus; electrical signalling apparatus; signal processing apparatus; personal alarms; remote control apparatus; signalling apparatus and instruments; signal transmission apparatus; electrical remote control apparatus; remote controls for stereos are included in, include or overlap with the opponent’s and electrodynamic signal remote control apparatus. Therefore, they are identical.
The contested telephone apparatus; radiotelegraphy sets; radiotelephony sets; stereophonic apparatus; telegraphs [apparatus]; radios; telegraphic transmitting apparatus; video recorders; audio conference apparatus; phototelegraphy apparatus; projection apparatus; karaoke equipment; automatic telegraph apparatus; intercommunication apparatus; video conferencing apparatus; audio apparatus telemetry apparatus; telephone intercom apparatus; recording apparatus; facsimile machines; video editing apparatus; radiotelephones; film processing apparatus; stereo amplifying apparatus photographic duplicating apparatus; photographic developing apparatus; amplifiers; sound mixing apparatus; photographic printing apparatus; audio electronic apparatus; wireless telephony apparatus; noise cancelling apparatus; enlarging apparatus [photography]; visual monitoring apparatus; apparatus for recording images; sound reproduction apparatus; high fidelity apparatus; xerographic apparatus and instruments; portable fax machines; cinematographic machines and apparatus; video door telephone apparatus; photographic apparatus and instruments; interactive video apparatus; apparatus for the transmission of images; video amplifying apparatus; photograph projection apparatus; film production apparatus; vehicle radios; video communications apparatus; sound recording apparatus; car audio apparatus; photographic processing apparatus; video intercom apparatus; audio processing apparatus; sound transmitting apparatus; audio switching apparatus; photographic print-making apparatus; video reproducing apparatus; film reproducing apparatus; digital telephone switching apparatus; audio amplifiers; radio apparatus and instruments; dvd recorders; transmitting apparatus for radio broadcasting; audio mixing apparatus; audio dubbing apparatus; apparatus for the reproduction of images; cameras [photography]; cinematographic cameras; plasma display apparatus; video effects apparatus; image scanners; image setting apparatus; imaging apparatus are identical to the opponent’s printers for use with computers; photocopiers (photographic, electrostatic, thermic) monitoring apparatus, electric; receivers (audio and video); sound recording apparatus; tape-recorders; sound locating instruments; sound carriers; sound transmitting apparatus; sound amplifiers; sound-reproducing apparatus; amusement apparatus adapted for use with television receivers; video telephones; loudspeaker boxes; compact disc players; television apparatus; telephone apparatus; motion picture cameras; radiotelephony sets; cassette players; mobile telephones; projection apparatus; projection screens; slide projectors, radios; video cameras; video recorders, because the opponent’s goods include, are included in, or overlap with, the contested goods.
The contested batteries for lighting overlap with the opponent’s batteries, electric. Therefore, they are identical.
The contested global positioning system [gps] apparatus; global positioning instruments; navigating apparatus (electronic -) overlap with the opponent’s navigation apparatus (computer programs) for vehicles (onboard computers). Therefore, they are identical.
The contested peripherals adapted for use with computers are contained in both lists of goods. Even taking into account the limitation inserted for all the goods in the opponent's specification, it can be concluded that they are identical, since those in the contested list include those in the opponent's.
The contested usb cables; electronic cables; electric cables; electrical power extension cords; coaxial cables; ethernet cables; telephone wires; telegraph wires; optical cables; resistance wires; jump leads; battery leads; connection cables; printer cables; audio cable; power cables; metallic cables [electric]; measuring cables; cable connectors; computer cabling; microphone cables; modem cables; guitar cables; insulated electrical cables; adapter cables (electric -); enamelled electric wires; thermocouple wires; ignition cables; telecommunications cables; coaxial cable connectors; electric cables and wires; cable junctions for electric cables; connections for electric cables; telephone cable heads; cable splices for electric cables; interface cables [electric]; mounting cords [electrical]; phone extension leads; connecting electrical cables; wire connectors [electricity]; fiber optic cables; cable boxes (electric -); male connectors for electrical cables; starter cables for motors; connection blocks [electric cable]; data transmission cables; antenna transmission wire; heat resistant electric wires; audio cable connectors; coaxial cables incorporating filters; usb cables for cellphones; threaded electrical cable connectors; mineral insulated electric cables; battery booster cables; radio relay cables; telephone connecting cords; underwater power cables; data synchronization cables; jack cables; materials for electricity mains [wires, cables]; telephone wire connection boxes; junction boxes for electric wires; aerial cables for heavy currents; cables for optical signal transmission; rubber covered electrical wires; threaded cable connectors of metal; cables for electrical signal transmission; gender changers [cable adapters]; gender changers for coaxial cables; electrical cables for use in connections; joint boxes for housing cable joints; mobile high-definition link (mhl) cables; electric cables for the transmission of sounds and images; gender changers [cable adapters] for cell phones; cables for transmitting and receiving cable television signals; cables for electricity; signal cables for it, av and telecommunication; light-conducting filaments are identical or at least similar to the opponent’s connection boxes (electricity); electric wires; electric cables; wire connectors (electricity), either because they can be considered to be included or overlap with the opponent's goods, or, in the case of cables that do not carry electricity, because they have the same purpose, can be manufactured by the same undertakings and are complementary.
The contested decoding apparatus; telematic apparatus; semiconductor apparatus; transducers; blueprint apparatus; replicating apparatus; encryption apparatus; instrumentation simulators; reprographic instruments; translation apparatus; telecommunication apparatus; adding machines; memory apparatus; microcomputer apparatus; communications apparatus; programmable control apparatus; film cutting apparatus; portable test apparatus; regulating apparatus, electric; electric control apparatus; portable telecommunications apparatus; aural monitoring apparatus; automatic control apparatus; telematic terminal apparatus; programmable telecommunication apparatus; numerical control apparatus; electric apparatus for commutation; wireless communication apparatus; mobile data apparatus; digital telecommunications apparatus; electronic broadcasting apparatus; electric communication apparatus; apparatus for the transmission of data; data storage devices; weather information apparatus; automatic dialling apparatus; broadcasting equipment; satellite receiving apparatus; electronic telecommunications apparatus; electronic surveillance apparatus; electric telecommunications apparatus; controllers (regulators); point of sale apparatus; satellite transmission apparatus; data switching apparatus; network controlling apparatus; power regulating apparatus; vehicle tracking apparatus; television decoders; meter testing apparatus; wire communication apparatus; word processing apparatus; character verification instruments; resistance testing apparatus; computer interface apparatus; data communications apparatus; work stations [computer apparatus]; are identical or at least similar to the opponent’s computers either because they can be considered to be included or overlap with the opponent's goods, or because they have the same purpose, can be manufactured by the same undertakings and are complementary.
The contested cable locators; cable harnesses; ducting for electric cables; sheaths for electric cables; markers for electric wire; cable channels (electric-); conduit for electric cables; flexible sheaths for electric cables; tags for identifying electric cables; cable identification markers for electric cables; sheaths for optical fibre cable; wire diameter measuring devices; apparatus, instruments for electricity; housings for electrical apparatus; switchgear [electric]; armatures for use in electrical apparatus; junction sleeves for electric cables are similar to the opponent’s connection boxes (electricity); electric wires; electric cables; wire connectors (electricity), because they have the same purpose, can be manufactured by the same undertakings and are complementary.
The contested flashlamps for cameras; optical transmitters for use with fibre optic cables; optical lamps; signalling lamps; electric light switches; ballasts for halogen lamps; fluorescent lamp ballasts; ballasts for gas discharge lamps; darkroom lamps [photography]; stroboscopic lamps [warning beacons]; road warning lamps; switchboard indicating lamps; fluorescent lamp ballast for electric lights; light sources [flashlamps] for photographic use; light modulators; light sensors; light boxes; light dimmers [regulators], electric; sunshine recorders; residual light image amplifiers; dimmer switches; oled (organic light emitting diode) display panels; illumination regulators; light switches; stage lighting controls; lighting ballasts; photographic darkroom lighting; ballasts for electrical lighting fittings; lighting devices for taking pictures; photocells for use with security lighting; flashlight apparatus; are similar to a low degree to the opponent’s electric lamps in Class 11, as they can have the same producers, end users and distribution channels.
The remaining light filters for cameras; stands for photographic apparatus; telephone earpieces; pouches for optical apparatus; weighbridges; pouches for photographic apparatus; pouches for cinematographic apparatus; graphic recorders; battery testers; connectors for telecommunication apparatus; beeper carrying cases; filters for television sets; tripods for surveying apparatus; cases adapted for photographic equipment are dissimilar to all the opponent’s goods and services. The nature and purpose of these goods does not coincide with any of the goods or services of the opponent. The goods are not usually manufactured by the same undertakings, have different distribution channels and are not complementary or in competition. The goods are dissimilar.
Contested goods in Class 11
The contested light bulbs, electric; halogen light bulbs; incandescent light bulbs; light bulbs; headlamp bulbs; flashlight bulbs; fluorescent electric light bulbs; compact fluorescent light bulbs; dashboard lamp bulbs; miniature light bulbs; direction indicator bulbs; led light bulbs; tail lamp bulbs; fixtures for incandescent light bulbs; light bulbs for directional signals for vehicles; lamps for directional signals of automobiles; light bulbs for gas-discharge lamps; lights for gas-discharge lamps; street lamps; incandescent lamps; wall lights; flexible lamps; mps; electric lamps; chandeliers; infrared lamps; laboratory lamps; electric incandescent; germicidal lamps; klieg lights; downlights; halogen lamps; ceiling lights; fluorescent lamps; diving lights; lamp shades; projector lamps; studio lamps; safety lamps; inspection lamps; aquarium lamps; curling lamps; lamp reflectors; mercury lamps; vacuum lamps; arc lamps; candle lamps; helmet lights; discharge lamps; stroboscopic lamps [decorative]; lamps; lamp globes; pedestal lamps; lamp holders; washstand lamps; miners' lamps; desk lamps; table lamps; bedside lamps; reflector lamps; dynamo lights for vehicles; portable lamps [for illumination]; strobe lights for discos; spot lights for household illumination; electric discharge lamps; lamps for electrical installations; luminous discharge lamps; fluorescent lamp tubes; lamps for outdoor use; stroboscopic lamps [light effects]; illuminant lamps for projectors; hanging ceiling lamps; testing lamps for cars; lamps for vehicle lighting; incandescent lamps and their fittings; lamps for christmas trees; lamp chimneys made of glass; germicidal lamps for purifying air; lamps for motor land vehicles; neon lamps for illumination; uplighters; electrical lamps for indoor lighting; arc lamps [lighting fixtures]; portable hand lamps [for illumination]; high intensity discharge luminaires; anti-glare devices for automobiles [lamp fittings]; anti-glare devices for vehicles [lamp fittings]; direction indicators for cycles (lamps for -); roof lights [lamps]; electric hand lamps [other than for photographic use]; infrared lamps, not for medical purposes; halogen lamps for incorporation into electric cookers; uv halogen metal vapour lamps; light projectors; lamp posts; light diffusers; spotlights; combined lighting and ultraviolet apparatus; self-luminous light sources; indoor fluorescent electrical lighting fittings; fluorescent lamps with low ultra-violet light output; decorative lights; lighting armatures; light bars; emergency lighting; lighting installations; lighting apparatus; lighting for display purposes; display lighting; floodlights; lighting for ponds; outdoor lighting; torches for lighting; lighting tracks [lighting apparatus]; lighting fittings; sconces [electric light fixtures]; incandescent lighting fixtures; magnesium filaments for lighting; mobile light towers; filters for stage lighting; chinese lanterns; fluorescent lighting tubes; lighting devices for showcases; lighting and lighting reflectors; light assemblies; lighting apparatus for vehicles; light discharge tubes; outdoor electrical lighting fixtures; lighting apparatus and installations; led lighting installations; computer controlled lighting apparatus; fiber optic lighting fixtures; lighting fixtures for commercial use; flat panel lighting apparatus; lighting fixtures for household use; lighting installations for air vehicles; discharge tubes, electric, for lighting; electric track lighting units; light-emitting diodes [led] lighting apparatus; registration plates (illumination lights for -); reflectors for wide area lighting fixtures; lighting being for use with security systems; installations for lighting christmas trees; mirror balls being lighting fittings; christmas tree ornaments for illumination [electric lights]; security lighting incorporating a movement activated sensor; security lighting incorporating an infra-red activated sensor; light sources [other than for photographic or medical use]; security lighting incorporating a heat activated sensor; security lighting; lanterns for lighting; aquarium lights; garden lighting; electrical lighting fixtures; outdoor lighting fittings; fluorescent lighting apparatus; luminous tubes for lighting; stage lighting apparatus; decorative electric lighting apparatus; pendant fluorescent lighting fixtures; electric indoor lighting installations; electric fiber lighting apparatus; film stage lighting apparatus; electrical lamps for outdoor lighting; indoor electrical lighting fixtures; indoor fluorescent lighting fixtures; fiber optic lighting installations; photocells (security lighting operated by -); lighting apparatus incorporating optical fibers; organic light emitting diodes (oled) lighting devices are different types of lamps and lighting devices. They are included in, include, or overlap with, the opponent’s electric lamps and are therefore considered identical to the opponent’s goods.
Sockets for electric lights are identically contained in both lists of goods (including synonyms).
The contested filaments for electric lamps are similar to the opponent’s wires; electric cables in Class 9. They coincide in their provider, target the same public and are sold in the same outlets. They are similar to a high degree.
The contested laser light projectors are similar to the opponent’s laser pointers (luminous pointers) in Class 9. They coincide in their provider, target the same public and are sold in the same outlets.
The contested solar lamps; gas lamps; oil lamps; solar powered lamps; decorative gas lighting sets; decorative gas lighting; are similar to the opponent’s electric lamps. The contested goods are non electric lamps, but they have the same purpose, to illuminate, they may be produced by the same providers and target the same public, moreover they are sold in the same outlets.
The contested burners for lamps; lampshade holders; lamp glasses; lamp casings; lamp chimneys; opaque casings for lights; chandelier pendants; glass covers for lamps; hangings for lamps; portable paper lanterns (chochin); standing paper lanterns [andon]; lamp finials; electric light fittings; carbon for arc lamps; chimneys for oil lamps; bases for non-electric lamps; bases adapted for the mounting of lamps; filters for use with lamps; counterweight fittings for pendant lamps; glass covers being fittings for lamps for sun lamps; colour filters for lighting apparatus; light filters [other than for medical or photographic use]; cord pendants [light fittings]; filters for use with lighting apparatus; colour filters for lighting apparatus are various types of parts and complements for lamps. These parts and fittings are often produced and/or sold by the same undertaking that manufactures the lamps and target the same purchasing public. Therefore these goods are similar to the opponent’s electric lamps.
The contested louvres for light deflection; screens for directing light; reflectors for light deflection; flange light fittings; shades for light sources; screens for controlling light; indoor fluorescent electrical lighting fittings; louvres for light control; reflectors for light control; are dissimilar to all the opponent’s goods and services. The contested goods have the purpose of modifying the amount or shade of light, their nature, purpose and target public is different to all the opponent’s goods and services. They are dissimilar.
The contested sunlight collecting apparatus for heating purposes; sun lamps for tanning purposes, tanning apparatus [sun lamps]; ultraviolet ray lamps, not for medical purposes; ultra-violet sun ray lamps for cosmetic purposes; infrared lamps for drying the hair; ultraviolet sun ray lamps, other than for medical use; solar thermal collectors [heating]; are dissimilar to all the opponent’s goods and services. These goods have different purposes (cosmetic or heating purposes) and their relevant public and providers are different to all the opponent’s goods. Therefore, they are considered dissimilar.
- 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 at business customers with specific professional knowledge or expertise.
The degree of attention may vary from average (e.g light bulbs, electric) to high (e.g audio conference apparatus), depending on the specialized nature of the goods, the frequency of purchase and their price.
- The signs
LIFE | |
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 unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C-514/06 P, Armafoam, EU:C:2008:511, § 57). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application. In the present case, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the relevant public, for which the element ‘LIFE’ is meaningful.
The earlier mark is the word mark ‘LIFE’, which will be perceived as referring ‘living things and their activity.’ (information extracted from Oxford Dictionary on 27/08/2017 at https://en.oxforddictionaries.com/definition/life) In its observations the applicant puts forward that it is a common word and cannot be given a big weight. Nevertheless the applicant did not submit any evidence for this argument and as this word has no meaning in relation to the goods in question; therefore, the distinctiveness of the word is normal. In the case of word marks, it is the word as such that is protected and not its written form. Therefore, it is irrelevant that the sign is presented in upper case letters.
The contested sign is a figurative mark consisting of the verbal element ‘Lit(L)ife’ in rather standard characters except for the fact that both words are inside a big sized ‘L’, which is the first letter of both words.
The Court has held that, although average consumers normally perceive a mark as a whole and do not proceed to analyse its various details, the fact remains that, when perceiving a word sign, they will break it down into elements which, for them, suggest a specific meaning or which resemble words known to them (13/02/2007, T-256/04, Respicur, EU:T:2007:46, § 57).
Therefore, the relevant public will dissect the sign into two components, ‘Lit’, with the meaning of ‘provided with light or lighting; illuminated’( information extracted from Oxford Dictionary on 27/08/2017 at https://en.oxforddictionaries.com/definition/lit ) and ‘Life’. This is justified by the fact that both words have a meaning for the relevant public.
The element ‘Life’, as seen above, is distinctive for the relevant goods. The element ‘Lit’ of the contested sign will be associated with ‘light, illuminated’. Bearing in mind that part of the relevant goods are illumination-related this element is non-distinctive for these goods, namely for the contested goods in Class 11 and for some goods in Class 9. As it is not descriptive, allusive or otherwise weak for the rest of the relevant goods, it is distinctive.
The signs have no elements that could be considered clearly more dominant than other elements.
Visually, the earlier mark is a one-word sign and the contested sign is a figurative sign composed of two words. The signs coincide in the word ‘Life’. However, they differ in the word ‘Lit’, which as above mentioned is weak for a part of the contested goods, and in the creative script.
Therefore, the signs are similar to an average degree.
Aurally, the pronunciation of the signs coincides in the sound of the letters ‘Life’ present identically in both signs, which is a distinctive element in both signs. The pronunciation differs in the sound of the letters ‛lit’ of the contested mark, which have no counterpart in the earlier sign. As explained above, the word ‘Lit’ is descriptive for some of the contested goods. Even if both words share their first letter L, the relevant public will be read the words independently.
Therefore, the signs are similar to an average degree.
Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. To the extent that both signs will be perceived as ‘life’, the signs are partly conceptually similar, but they are not similar in relation with the word ‘lit’ which will be understood by the relevant public.
The signs are similar to an average degree.
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 goods are partially identical, partially similar to different degrees and partially dissimilar. They are directed at the public at large and at business customers. The degree of attention of the relevant public will vary between average and high.
The signs are visually and aurally similar to an average degree and conceptually similar to the extent that they have the word ‘LIFE’ in common. The differences between the earlier mark and the contested sign, namely the additional word ‘Lit’ in the contested sign and the stylized typescript, are not sufficient to counteract the significant similarities between them; therefore, there is a serious likelihood that the relevant public will confuse them and believe that they come from the same undertaking or from economically-linked undertakings.
Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T-104/01, Fifties, EU:T:2002:262, § 49).
Taking into account the normal degree of distinctiveness of the earlier mark, it is considered that the differences between the signs are not sufficient to overcome their similarities, and that there is a likelihood of confusion for all the identical and similar goods, even for those which are similar to a low degree, and taking also into account the higher degree of attention of part of the relevant public for some of the goods in question.
Moreover, 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). This is true even for consumers who pay a high degree of attention (21/11/2013, T-443/12, ancotel, EU:T:2013:605, § 54).
Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the English-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union/ trade mark registration. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.
It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to different degrees to those of the earlier trade mark.
The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this article and directed at these goods cannot be successful.
COSTS
According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 85(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.
Since the opposition is successful only for part of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.
The Opposition Division
Sandra KASPERIŪNAITÉ | Patricia LÓPEZ FERNÁNDEZ DE CORRES | Dorothée SCHLIEPHAKE |
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.