LOS SECRETOS DE EVA | Decision 2457052 - Ombretta AG v. ALFREDO OZAETA MUSITU
Date Published: Sep 25, 2017
OPPOSITION No B 2 457 052
Ombretta AG, Stansstaderstr. 14, 6370 Stans, Switzerland (opponent), represented by Gleiss Große Schrell Und Partner MBB, Leitzstr. 45, 70469 Stuttgart, Germany (professional representative)
a g a i n s t
Alfredo Ozaeta Musitub, Gerezpea, 16 - Pol. Ind. Jundiz, 01015 Vitoria-Gasteiz (Alava), Spain (applicant), represented by Pons Consultores De Propiedad Industrial S.A., Glorieta Rubén Darío, 4, 28010 Madrid, Spain (professional representative).
On 18/07/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 457 052 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 13 149 349, namely against all the goods in Class 24. The opposition is based on European Union trade mark registration No 6 384 564. The opponent invoked Article 8(1)(b) EUTMR.
Earlier trade mark | Contested sign |
- The goods
The goods on which the opposition is based are the following:
Class 25: Ladies underwear namely, brassieres, bustiers, torseletts, corselets, knickers, thongs, bodices, panties; bathing suits, beach wear.
The contested goods are the following:
Class 24: Towels; Face cloths; Household textile articles; Curtains for showers; Shower curtains; Bathing glove cases; Washing mitts; Bath linen.
An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods.
The term ‘namely’, used in the opponent’s list of goods to show the relationship of individual goods with a broader category, is exclusive and restricts the scope of protection only to the specifically listed goods.
As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services are not regarded as being similar or dissimilar to each other on the ground that they appear in the same or different classes under the Nice Classification.
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 24
The Opposition Division does not agree with the opponent that the contested goods in Class 24 are similar to the goods in Class 25 covered by the earlier mark. The goods serve completely different purposes: the opponent’s goods are meant to be worn by people, for protection and/or fashion, whereas the contested goods are textile articles used mainly for household purposes and interior decoration. Therefore, the methods of use of the opponent’s goods and the contested goods are different. They also differ in other respects, such as their nature and distribution channels. Even if the goods can be found in the same commercial establishments such as supermarkets, they would be found in different departments. They are also not usually manufactured by the same undertakings. In particular, the opponent’s bathing suits, beach wear and the contested towels, face cloths are found dissimilar as well. As explained above, their purposes are clearly different: the bathing suits, beach wear in Class 25 serve essentially to cover a body while towels, face cloths absorb moisture from the human body. And although bathing suits, beach wear and towels can all be used on the beach, the link is not sufficient to find these goods similar. Thus, the Opposition Division considers that the contested goods are dissimilar to the opponent’s goods.
- 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.
Given that the opposition is not well founded under Article 8(1) EUTMR it is unnecessary to examine the evidence of use filed by the opponent.
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
Justyna GBYL | Anna BAKALARZ | Pedro JURADO MONTEJANO |
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.