MASTER KITCHEN | Decision 2660382 - Luca Caggiari v. HGM CENTRAL DE ELECTRODOMESTICOS Y SERVICIOS, S L
Date Published: Oct 11, 2017
OPPOSITION No B 2 660 382
Luca Caggiari, Via G. Di Vittorio, 14/A, 33170 Pordenone, Italy (opponent), represented by Propria S.r.l., Via della Colonna n. 35, 33170 Pordenone, Italy (professional representative)
a g a i n s t
HGM Central de Electrodomesticos y Servicios S.L., Avda sur del aeropuerto de barajas 24 - 2º A, 28042 Madrid, Spain (applicant), represented by Julio de Pablos Riba, Los Madrazo 24 Bajo Izqda, 28014 Madrid, Spain (professional representative).
On 20/03/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 660 382 is partially upheld, namely for the following contested goods and services:
Class 7: Clothes washing machines, washing machines for crockery, spin dryers, centrifuges, mixers [machines], clippers, peeling machines, power-operated coffee grinders, electric knives and sharpeners, food processors (electric-) for domestic use, electrical vacuum cleaners for domestic use.
Class 11: Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes; combined stoves, electric gas and induction stoves; refrigerators, freezers, electric deep fryers, rotisseries, toasters, coffee-machines, electric.
Class 20: Furniture for kitchens.
Class 21: Household or kitchen utensils and containers; glassware, porcelain and earthenware not included in other classes.
Class 35: Retailing, wholesaling or sale via global computer networks of household electrical appliances.
2. European Union trade mark application No 14 632 293 is rejected for all the above goods and services. It may proceed for the remaining goods and services.
3. Each party bears its own costs.
REASONS:
The opponent filed an opposition against some of the goods and services of European Union trade mark application No 14 632 293, namely against all of the goods and services in Classes 7, 11 and 21 and some of the goods and services in Classes 20, 35, 37 and 39. The opposition is based on, inter alia, French trade mark registration No 154 234 10. The opponent invoked Article 8(1)(a) and (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 French trade mark registration No 154 234 10.
- The goods and services
The goods and services on which the opposition is based are the following:
Class 7: Washing machines; cleaning appliances utilizing steam; vacuum cleaners; centrifuges (machines); electric knives; crushers [machines]; mixing machines; whisks, electric, for household purposes; mixing machines; rinsing machines; washing machines for crockery; trash compacting machines; electric blenders; cleaning (machines and apparatus for -), electric; butter machines; machines for making pasta; grating machines for vegetables; air suction machines; washing machines; bottle washing machines; sausage machines; fleshing machines; bread cutting machines; pepper mills other than hand-operated; millstones; coffee grinders, other than hand-operated; mills for household purposes, other than hand-operated; centrifugal mills; electric blenders; grain separators; fruit presses, electric, for household purposes; meat mincers (machines); kitchen grinders, electric; garbage disposal machines; kitchen grinders, electric; apparatus for aerating water; apparatus for aerating beverages; parquet wax-polishers, electric; electric machines for washing carpets and parquet floors; vacuum pumps (machines); vacuum cleaner bags; food preparation machines, electromechanical; beverage preparation machines, electromechanical; saws (machines); de-aerators for feedwater.
Class 11: Microwave ovens; loading apparatus for furnaces; ionization apparatus for the treatment of air or water; ventilation (air-conditioning) installations and apparatus; refrigerating appliances and installations; ice machines and apparatus; water purifying apparatus and machines; air purifying apparatus and machines; lighting apparatus and installations; refrigerating appliances and installations; refrigerating appliances and installations; cooking apparatus and installations; heating apparatus, electric; air conditioners; kilns; water filtering apparatus; beverage cooling apparatus; multicookers; coffee roasters; refrigerating cabinets; framework of metal for ovens; barbecues; immersion heaters; electric kettles; burners; gas burners; electric coffee urns; apparatus for heating; cooling apparatus; extractor hoods for kitchens; ventilation hoods; freezers; cookers; kitchen ranges [oven]; diffusers (light —); light emitting diodes (leds); air cooling apparatus; heating installations; waffle irons, electric; filters for air conditioning; furnaces, other than for laboratory use; cooking rings; microwave ovens for industrial purposes; baking ovens; furnaces, other than for laboratory use; electric deep fryers; ice chests; rotisseries; roasting jacks; lamp globes; grills (cooking appliances); air conditioning installations; chandeliers; standard lamps; arc lamps; oil lamps; electric lamps; lamps; lightbulbs; lightbulbs; wash-hand basins [parts of sanitary installations]; sinks; electric coffee percolators; bread baking machines; bread baking machines; pressure cooking saucepans, electric; plate warmers; plate warmers; lava rocks for use in barbecue grills; radiators, electric; refrigerating containers; cooling apparatus; water heaters (apparatus); air heating apparatus; taps [faucets]; mixer taps for water pipes; water heaters; plate warmers; roasting spits; toasters; lamp chimneys; luminous tubes for lighting; cooking utensils (electric); food steamers, electric; fans for air conditioning; refrigerating display cabinets; filters for drinking water; fans (electric -) for personal use; apparatus for dehydrating food waste; steamers (fabric -); electric yoghurt makers.
The limitation filed by the applicant on 21/07/2016 did not affect the contested goods and services, which are the following:
Class 7: Clothes washing machines, washing machines for crockery, spin dryers, centrifuges, mixers [machines], clippers, peeling machines, power-operated coffee grinders, electric knives and sharpeners, food processors (electric-) for domestic use, electrical vacuum cleaners for domestic use.
Class 11: Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes; combined stoves, electric gas and induction stoves; refrigerators, freezers, electric deep fryers, rotisseries, toasters, coffee-machines, electric.
Class 20: Furniture for kitchens.
Class 21: Household or kitchen utensils and containers; combs and sponges; brushes (except paintbrushes); brush-making materials; articles for cleaning purposes; glassware, porcelain and earthenware not included in other classes.
Class 35: Retailing, wholesaling or sale via global computer networks of household electrical appliances, kitchen furniture.
Class 37: Installation, restoration, repair and maintenance of furniture, kitchen furniture, electrical appliances.
Class 39: Transport, packaging, storage and distribution of goods, household electrical appliances, kitchen furniture.
As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services shall not be 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 7
The contested washing machines for crockery, centrifuges (and its synonym centrifuges (machines)), power-operated coffee grinders (and its synonym coffee grinder, other than hand-operated), electric knives are identically contained in both lists of goods.
The contested clothes washing machines are included in the broad category of the opponent’s washing machines. Therefore, they are identical.
The contested mixers [machines] are included in the broad category of, or overlap with, the opponent’s mixing machines. Therefore, they are identical.
The contested food processors (electric -) for domestic use (i.e. a kitchen appliance used to facilitate repetitive tasks in the preparation of food, for domestic use) are included in the broad category of the opponent’s food preparation machines, electromechanical. Therefore, they are identical.
The contested electrical vacuum cleaners for domestic use are included in the broad category of the opponent’s vacuum cleaners. Therefore, they are identical.
The contested spin dryers (i.e. ‘device that extracts water from clothes, linen, etc, by spinning them in a perforated drum’: definition extracted from Collins English Dictionary online at www.collinsdictionary.com on 14/03/2017) are included in, or overlap with, the broad category of the opponent’s centrifuges (machines) (i.e. a machine that spins mixtures of different substances around very quickly so that they separate by centrifugal force’: definition extracted from Collins English Dictionary online at www.collinsdictionary.com on 14/03/2017). Therefore, they are identical.
The contested clippers are cutting tools, used for cutting small amounts from something, for example for cutting someone’s hair or nails, but also hedges, lawn etc. Therefore, these goods are similar to the opponent’s saws (machines) in Class 7: they can coincide in nature and purpose; furthermore, they may have the same producers, end users and distribution channels.
The contested peeling machines are machines that peel off something that has been sticking to a surface (such as for peeling - and often also washing - root vegetables, tubers, potatoes and fruit). They are similar to the opponent’s grating machines for vegetables: they have the same nature and may coincide in the general purpose of preparing vegetables for their consumption. In addition, they can coincide in producer, distribution channels and end users.
The contested electric sharpeners are ‘a tool or machine used for sharpening pencils or knives’ (definition extracted from Collins English Dictionary online at www.collinsdictionary.com on 14/03/2017). These goods are similar to the opponent’s electric knives in Class 7, that are ‘electrical kitchen devices used for slicing foods’ (definition extracted from Collins English Dictionary online at www.collinsdictionary.com on 14/03/2017). These goods may coincide in producers, distribution channels and end consumers.
Contested goods in Class 11
The contested apparatus for lighting (and its synonym lighting apparatus), the contested apparatus for heating as well as apparatus for cooking (and its synonym cooking apparatus) and apparatus for refrigerating (and its synonym cooling apparatus); rotisseries; toasters are identically contained in both lists of goods.
The contested apparatus for steam generating include, as a broader category, the opponent’s food steamers, electric. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.
The contested refrigerators, freezers, apparatus for refrigerating and electric deep fryers are included in the broad category of the opponent’s refrigerating appliances and installations. Therefore, they are identical.
The contested apparatus for ventilating include, as a broader category, or overlap with the opponent’s ventilation (air-conditioning) apparatus in Class 11. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.
The contested coffee-machines, electric include, as a broader category, the opponent’s electric coffee urns and electric coffee percolators in Class 11. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.
The contested combined stoves, electric gas and induction stoves are included in the broad category of, or overlap with, the opponent’s cooking apparatus and installations. Therefore, they are identical.
The contested apparatus for water supply and sanitary purposes cover apparatus that are used for supplying water and for protecting health, including apparatus for the provision and purification of water. Therefore, they include, as a broader category, amongst others the opponent’s water purifying apparatus and machines, water filtering apparatus in Class 11. It is impossible for the Opposition Division to filter these goods from the abovementioned category. Since the Opposition Division cannot dissect ex officio the broad category of the applicant’s goods, they are considered identical.
The contested apparatus for drying are similar to the opponent’s washing machines in Class 7, as they can coincide in producer, end user and distribution channels.
Contested goods in Class 20
The contested furniture for kitchens are similar to the opponent’s cooking apparatus and installations. Kitchen elements are not bought piece by piece but rather ordered as a complete set for the whole kitchen This includes not only the furniture but is a combination of the electrical and sanitary equipment as well as light and cooking solutions. It is not excluded that the opponent’s cooking apparatus and installations can be used to be incorporated in the overall kitchen solution or at least in certain kitchen furniture. These goods are likely to be sold alongside or at least in the same establishments; they are complementary and coincide in end consumers.
Contested goods in Class 21
The contested household or kitchen utensils and containers are similar to the opponent’s cooking utensils (electric) in Class 11. They can coincide in nature and purpose, methods of use and can be in competition. Furthermore, their distribution channels and end users coincide.
The contested glassware, porcelain and earthenware not included in other classes are similar to the opponent’s cooking utensils (electric) as they may have the same producers and they will coincide in end user and distribution channels.
The contested combs; brushes (except paintbrushes); brush-making materials are dissimilar to all of the opponent’s goods in Classes 7 and 11: they have a different nature and purpose, they are not in competition nor complementary and do usually not coincide in producers and distribution channels.
The contested sponges; articles for cleaning purposes are dissimilar to all of the opponent’s goods in Classes 7 and 11: they have a different nature, they are not in competition nor complementary and do usually not coincide in producers and distribution channels.
Contested services in Class 35
Retail services concerning the sale of particular goods are similar to a low degree to those particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.
Therefore, the contested retailing of household electrical appliances are similar to a low degree to the opponent’s fruit presses, electric, for household purposes.
The same principles apply to services rendered in connection with other types of services that consist exclusively of activities revolving around the actual sale of goods, such as wholesale services, internet shopping or sale via global computer networks in Class 35.
Consequently, the contested wholesaling or sale via global computer networks of household electrical appliances are likewise similar to a low degree to the opponent’s fruit presses, electric, for household purposes.
On the other hand, the contested retailing services of kitchen furniture are not similar to any of the opponent’s goods in Classes 7 and 11. Apart from being different in nature, since services are intangible whereas goods are tangible, they serve different needs. Retail services consist in bringing together, and offering for sale, a wide variety of different products, thus allowing consumers to conveniently satisfy different shopping needs at one stop. This is not the purpose of goods. Furthermore, goods and services have different methods of use and are neither in competition nor complementary.
Similarity between retail services of specific goods covered by one mark 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. This condition is not fulfilled in the present case since the goods at issue are only similar. The same principles apply to services rendered in connection with other types of services that consist exclusively of activities revolving around the actual sale of goods, such as wholesaling or sale via global computer networks in Class 35.
Consequently, the contested wholesaling or sale via global computer networks of kitchen furniture are likewise dissimilar to any of the opponent’s goods in Classes 7 and 11.
Contested services in Class 37
The contested installation, restoration, repair and maintenance of furniture, kitchen furniture, electrical appliances are dissimilar to any of the opponent’s goods in Classes 7 and 11.
Installation, restoration, repair and maintenance services are not considered to be similar to goods. These services are provided by specialist companies whose business is not the manufacture and sale of those goods. As regards the nature of the goods and services, the contested services in Class 37 covers as a broad category various services of bringing (something) (again) into the desired state for use, of keeping something in good condition and of preserving an object in its original condition. Therefore these services are different from all the opponent’s goods in terms of their nature, intended purpose and method of use; neither they are in competition.
Contested services in Class 39
The contested transport, packaging, storage and distribution of goods, household electrical appliances, kitchen furniture are dissimilar to any of the opponent’s goods in Classes 7 and 11.
Transport services refer, for example, to a fleet of lorries or ships used for moving goods from A to B. These services are provided by specialist transport companies whose business is not the manufacture and sale of the goods that are transported. The services differ from the goods in terms of their nature, purpose and method of use. They do not have the same distribution channels and are not in competition. Therefore, they are dissimilar to the goods in Classes 7 and 11 of the opponent. The same reasoning applies to distribution services.
Packaging and storage services refer to services whereby a company’s merchandise is packed and kept in a particular place for a fee. Those services are not similar to the opponent’s goods in Classes 7 and 11 which could be packed or stored. The nature, purpose and method of use of these services and goods are different. They do not have the same providers/producers or distribution channels and they are not in competition. Therefore, these services are dissimilar to all the opponent’s goods in Classes 7 and 11.
- 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 and services found to be identical or similar to various degrees are directed at both the public at large and business customers with specific professional knowledge or expertise, with the exception of the services of retailing, wholesaling or sale via global computer networks covered by the contested mark that exclusively target a professional public.
The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.
Given that the general public is more prone to confusion, the examination will proceed on this basis, except for the above mentioned services that target the professional public only and for which consequently the relevant public for assessing likelihood of confusion will be the professional public only (14/07/2005, T-126/03, Aladin, EU:T:2005:288, § 81).
- The signs
MASTERKITCHEN | |
Earlier trade mark | Contested sign |
The relevant territory is France.
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 common verbal element ‘MASTER’ will be understood by the relevant French-speaking public as referring to the degree, obtained after five-years university study (see e.g. Larousse French Dictionary online at www.larousse.fr on 14/03/2017). Nevertheless, it has no meaning in relation to any the goods and services at issue so that this element is to be considered distinctive.
The common verbal element ‘KITCHEN’ has no meaning for the relevant public but will evoke the French (and identical English) term ‘KITCHENETTE’, referring to the concept of a small kitchen or a part of a larger room that is used for cooking (see e.g. Larousse French Dictionary online at www.larousse.fr, definition extracted on 14/03/2017). Therefore, this element will be weaker for those goods that can be used in a (small) kitchen as well as for related services, as it will evoke a characteristic of the goods and services concerned.
The earlier mark is a word mark, consisting of the string of thirteen letters ‘MASTERKITCHEN’.
Although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a sign, such as the earlier mark in this case, containing a verbal component, 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). It is reasonable to assume that a significant part of the public will perceive the string of letters ‘MASTER’ in the earlier mark as a separate element, as this term will be associated with a particular meaning, explained above. The same goes for the string of letters ‘KITCHEN’.
The contested sign is a figurative mark, consisting of the thirteen-letter string of ‘MASTERkitchen’. The same considerations as above go for the verbal elements ‘MASTER’ and ‘kitchen’ in the contested sign. In addition, the relevant public will perceive the string of letters ‘MASTER’ and ‘kitchen’ in the contested mark even more as separate elements, as they are depicted in different colours and typeface.
As regards the stylisation of the contested sign, the verbal element ‘MASTER’ is written in dark blue, bold and italic, capital letters, in a standard typeface, while the element ‘kitchen’ that directly follows, is written in orange lower case letters, in a fairly standard typeface. Under the letters ‘R’ and ‘k’ is drawn a small line, in grey colour under the letter ‘R’ and in orange colour under the letter ‘k’, respectively. As a consequence, the component ‘MASTERkitchen’ is clearly the dominant element in the contested mark, as it is the most eye-catching, by virtue of its size and position, overshadowing as such the figurative element of the coloured line that is in a significantly smaller size. In addition, this figurative element, being of a more decorative nature, is considered less distinctive and will not distract consumers’ attention from the verbal component itself. The same applies to the stylisation (albeit not devoid of distinctiveness) of the verbal component. Indeed, when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37). Consequently, in the present case the verbal components will have a stronger impact on the relevant consumers.
Visually, the signs coincide in the string of letters ‘MASTERKITCHEN’, although the part ‘KITCHEN’, as seen above, is considered weaker in relation to some of the goods and services. In addition, the common component ‘MASTERKITCHEN’ forms the entire earlier mark and the dominant element of the contested mark. The signs differ in the (less eye-catching) figurative element of a coloured line, which has no counterparts in the earlier mark, as well as in the stylisation of the contested mark.
Consequently, the signs are visually similar at least to an average degree.
Aurally, the pronunciation of the signs fully coincides in the sound of the letters ‛MASTERKITCHEN’, present identically in both signs.
Therefore, the signs are aurally identical.
Conceptually, although the signs as a whole do not have any meaning for the public in the relevant territory in relation to the goods and services, the elements ‘MASTER’ and ‘KITCHEN’, included in both signs, will be associated with the meanings given above, rendering the signs conceptually identical.
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 and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of a weak element in the mark in relation to some of the goods and services as stated above in section c) of this decision.
- Global assessment, other arguments and conclusion
The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 8 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).
Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors and, in particular, similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (see, to that effect, 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 20; 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 24; 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).
The signs have in common the string of letters ‘MASTERKITCHEN’, which forms the entire earlier mark and the only verbal, as well as dominant, element in the contested mark.
The additional figurative elements in the contested sign will not divert attention from the verbal element ‘MASTERKITCHEN’, which, as seen above, has a normal degree of distinctiveness as a whole. In addition, as explained above, consumers will refer to the contested sign by pronouncing its verbal elements, rather than by describing its stylisation.
Therefore, although in the contested mark the coinciding verbal element is stylised and accompanied by an additional element that is not devoid of distinctive character, the latter is less visually eye-catching and of a more decorative nature. In addition, the signs are aurally and conceptually identical while visually similar at least to an average degree.
Account is also 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).
Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (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 public, even where the degree of attention is high (and/or where the relevant public is the professional public only, as stated above in section b) of this decision). Therefore the opposition is partly well-founded on the basis of the opponent’s French trade mark registration No 154 234 10.
It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical or similar (to various degrees) to those of the earlier trade mark.
The rest of the contested goods and services 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 and services cannot be successful.
The opponent has also based its opposition on the following earlier national trade marks, all resulting from the same conversion request in relation to previous European Union trade mark application No 13 922 554:
- Czech Republic trade mark registration No 352 113 for the word MASTERKITCHEN;
- United Kingdom trade mark registration No 33 134 499 for the word MASTERKITCHEN;
- Italian trade mark application No 30 2015 000 069 923 for the word MASTERKITCHEN;
- Polish trade mark application No 449 966 for the word MASTERKITCHEN;
(the other two – German and Slovak– trade mark applications being withdrawn by the opponent as basis of the opposition in its observations filed on 06/07/2016).
Since these marks are identical to the one which has been compared and cover the same scope of goods and services, the outcome cannot be different with respect to goods and services for which the opposition has already been rejected. Therefore, no likelihood of confusion can exist with respect to those goods and services neither.
Finally, for the sake of completeness, it must also be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR and directed against the remaining goods and services because the signs and the goods and services are obviously not identical.
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 shall decide a different apportionment of costs.
Since the opposition is successful only for part of the contested goods and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.
The Opposition Division
Andrea VALISA | Edith Elisabeth VAN DEN EEDE | Michele M. BENEDETTI-ALOISI |
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.