O LOTTERY KENO | Decision 2576919 - AB Svenska Spel v. INTERNATIONAL GAMING PROJECTS LIMITED

Date Published: Oct 1, 2017

OPPOSITION No B 2 576 919

AB Svenska Spel, 621 80 Visby, Sweden (opponent), represented by Grünberger Advokater AB, Kungsgatan 3 P.O. Box 7297, 103 90 Stockholm, Sweden (professional representative)

a g a i n s t

International Gaming Projects Limited, B2 Industry Street, Qormi QRM3000, Malta (applicant), represented by Baker & Mckenzie, Paseo de la Castellana 92, 28046 Madrid, Spain (professional representative).

On 13/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 576 919 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 14 260 343. The opposition is based on Swedish trade mark registrations No 339 504 ‘KENO’, No 342 278 ‘KENO’, No 353 427 ‘KUNG KENO’, No 320 402  and No 405 492 , and Swedish well-known trade mark ‘KENO’. The opponent invoked Article 8(1)(b) and 8(5) EUTMR.

REPUTATION – ARTICLE 8(5) EUTMR

The opponent claims that earlier Swedish trade mark registrations No 339 504 ‘KENO’ and No 342 278 ‘KENO’ have a reputation in Sweden.

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark shall not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds of refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

• The signs must be either identical or similar.

• The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

• Risk of injury: the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T-345/08, & T-357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

1. Reputation of the earlier trade marks

According to the opponent, the earlier trade marks have a reputation in Sweden.

Reputation implies a knowledge threshold which is reached only when the earlier mark is known by a significant part of the relevant public for the goods or services it covers. The relevant public is, depending on the goods or services marketed, either the public at large or a more specialised public.

In the present case the contested trade mark was filed on 16/06/2015. Therefore, the opponent was required to prove that the trade marks on which the opposition is based had acquired a reputation in Sweden prior to that date. The evidence must also show that the reputation was acquired for the goods and services for which the opponent has claimed reputation, namely:

Swedish trade mark registration No 339 504

Class 16:        Printed matter.

Class 28:        Games and toys.

Class 41:        Betting and gambling services.

Swedish trade mark registration No 342 278

Class 9:        Slot machines; gaming machines; registered computer programs; terminals.

In order to determine the mark’s level of reputation, all the relevant facts of the case must be taken into consideration, including, in particular, the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it.

On 18/02/2016, the opponent submitted the following evidence:

• Documents, claimed by the opponent to be excerpts originating from the Swedish Trademark Database, and two copies of ‘Office Action’ (as named by the opponent) for refused registrations of two trade marks containing the element ‘KENO’. However, none of the documents contains an indication of its source. The documents are in Swedish with some entries translated into English. For instance, one document contains the following translation: ‘[y]our mark is confusingly similar to the Swedish trademark registrations 320 420 KENO and 339 504 KENO’. No indication and/or translation, however, is submitted about any motives for the eventual decision taken by the authority in question.
• Excerpts from annual reports of Svenska Spel, containing:

• Graphs and charts (between 2008 and 2013) on the ‘Swedish gaming market’. The excerpts rank a number of games among the ‘ten largest games in Sweden’ based on ‘net gaming revenue’, among which is ‘Keno’, which, for instance, was ranked eighth in 2013 (with a revenue of SEK 552 million) and in 2012 (SEK 568 million). The net revenue of ‘Keno and KenoXpress’ combined is listed as SEK 1 392 million in 2009. There are other games listed, such as ‘Lotto’, ‘Joker’ and ‘Triss’, which appear to be the types of games on the gaming market. Information is also provided on the gaming revenue of the companies on this market. For instance, in 2013, the company Svenska Spel had a revenue of SEK 9 729 million and, in 2012, it had a revenue of SEK 9 815 million. In the reports, the source of the information is given as the Swedish Gambling Authority. However, no endorsement or information is provided independently by this authority. There is no information about the specific goods and services from which the revenue comes or about the signs that have been used to generate this revenue, as ‘Keno’ appears to be used as an indication of the type of the game.
• Auditor’s reports (between 2009 and 2014) for the ‘Annual General Meeting of AB Svenska Spel’, which state that audits are done on the annual accounts, on the consolidated financial statements and accounting records and on the administration of the Board and the CEO of the company. They contain statements on the legal compliance of the audited materials. They contain no reference to the earlier signs or any of the relevant goods and/or services, and no indication of whether or not the information audited is in any way related to the earlier signs or goods/services.

• A document, originating from the opponent, containing information on the brand ‘Keno’; it is explained to be the brand for two products: ‘Keno’ and ‘KenoXpress’. It is stated that ‘[t]he product Keno is a lottery with a daily draw broadcasted in national TV since 1992’. It elaborates on the way the game is played in draws, when ‘[a]t every draw, 20 numbers are drawn from 70 possible numbers’. A prize is given depending on the level and the draws of the game.
• Net sales figures, between 2004 and 2014 in Swedish krona, submitted by the opponent; for ‘KENO’, net sales amounted to SEK 536 million in 2014. It is explained that ‘net sales is the amount of sales generated after the deduction of the winner’s share, which is the amount that goes back to the winning players in form of prize money’.
• A document entitled ‘Keno players 2007-2014’, originating from the opponent, containing a chart of the ‘Total number of Keno players’ between 2007 and 2014 (amounting to 650 000 in 2014).
• A one-page document entitled ‘Brand awareness Keno’ originating from the opponent and subtitled ‘brand awareness amongst the Swedish population between 18-75 years (16-75 years 2005-2006)’. The document contains a chart for 2005 to 2014. The chart provides the population figure (of Sweden) for each year and the percentage of the population that has replied positively to the following question ‘knows/has heard of’, ‘can consider playing’ and ‘knows how to play’. For instance, the results in 2014 are respectively 90%, 37% and 21%. The document specifies that the figures are ‘an excerpt from a yearly survey that is distributed by mail by an independent research company called MIND Research’. It is further explained that the survey is distributed to 20 000 randomly selected people. The response frequency is stated to be about 50%. However, no document originating from the company that is claimed to be the source of the survey is provided. Furthermore, the kinds of questions asked and in what order they were asked are not clear from the table provided. The table also does not provide information on whether the awareness claimed concerns ‘Keno’ as a trade mark or as a kind of game.
• Three photographs showing draws of a game on the television, in which apparently numbered balls are drawn from a sphere. The photographs show the name of the game, ‘KENO’, and the following dates: 27/10/2012 and 26/07/2013 (written on the screen) and 26/11/2010 (submitted by the opponent).
• Examples from three ‘campaigns’ (as named by the opponent) – in weeks 43-44 of 2013, weeks 4-5 of 2014 and weeks 11-12 of 2014 – containing brief entries on distribution figures (drafted by the opponent), for example for retail (for which it is claimed that ‘total edition of 25 473 units [was] distributed to our resellers nationwide’ for the campaign in 2013), direct marketing (70 000 emails were sent and 31 273 postal units were distributed directly to customers in the database for the 2013 campaign) and TV (‘two different commercials distributed 461 times via nationwide TV – channels’ for the 2013 campaign).
• Photographs from advertisement cuttings, in Swedish (not translated), in which the word ‘KENO’ is seen; however, the goods and/or services to which these relate is not indicated. The photographs are explained by the opponent to show banners, ‘retail units’ and ‘postal units’, ‘communications with campaign material’ and brochures.

The Opposition Division finds that the evidence submitted by the opponent does not demonstrate that the earlier trade marks acquired a reputation.

As a preliminary note, the meaning of the word ‘KENO’ will be addressed. ‘Keno’ is a word used to address a lottery-like gambling game, resembling bingo. It is, furthermore, perceived as such in a number of European Union countries.  In this regard, the Opposition Division refers to the reasoning of the Fourth Board of Appeal in its decision of 25/02/2016 in case R 1262/2015-4 ‘ORTIZ LOTTERY KENO/KENO’, § 21-22, which examined the meaning of the term ‘KENO’. According to the Board of Appeal, ‘KENO’, being a lottery-like gambling game, can be played on-line, in modern casinos and is also offered as a game in some lotteries. Furthermore, it is considered that it will commonly be understood as a generic term, bearing the specified meaning all over Europe. This would also include the relevant Swedish public which is aware of the generic use of the term ‘KENO’.

With regard to the documents submitted in a language different from the language of the proceedings (the advertisement cuttings and the documents claimed to be from the Swedish Trademark Database), pursuant to Rule 19(2)(c) and 19(3) EUTMIR and Rule 98 EUTMIR, the evidence that the earlier right has a reputation must be filed in the language of the proceedings or accompanied by a translation within the time limit for substantiation of the earlier right on which the opposition is based. In the present case, the opponent was given until 25/02/2016 to substantiate its earlier rights (following the letter of the Office sent to the opponent on 20/10/2015). The opponent did not submit a translation of the material in question. According to Rule 19(4) EUTMIR, the Office shall not take into account written submissions or documents, or parts thereof, that have not been submitted, or that have not been translated into the language of the proceedings, within the time limit set by the Office.

Even though, in general, it would suffice to translate only significant parts of long documents or publications, this has not been done by the opponent. The advertising material submitted is entirely in Swedish. The documents that are claimed to be from the Swedish Trademark Database contain some partial entries in English, which are not in any way significant parts, as their relevance in the context of the other documents submitted could not be determined and the motives of the issuing authority in question could not be derived from them. From the excerpts translated by the opponent, the general message of each document (or part of it) could not be determined to allow the significance of the text to be evaluated for the purposes of the present assessment.

Since the documents specified above, which are not in the language of the proceedings, form part of the evidence submitted to substantiate the fact that the earlier marks have a reputation, it follows that, as a translation was not submitted (neither of any document as a whole nor of a significant part of one) within the substantiation deadline, these cannot be taken into account in the present proceedings. For the sake of completeness, it is also noted that the documents claimed to be from the Swedish Trademark Database do not contain an indication of their claimed origin, that is, their authenticity could not be verified.

The rest of the evidence derives directly from the opponent. The reports submitted, even though they originate from the opponent, cannot be disregarded; however, they need to be supported by additional evidence from an independent party, such as statements from the chamber of trade or the body (authority) in the area of business that the opponent operates in, statements from customers and/or independent press articles published in specialised literature. Even though an endorsement by the auditors is provided within the reports for some of the years concerned, the subject of the audits is, as explained by the auditors, the annual accounts, the consolidated financial statements and accounting records, and the administration of the company. These, however, neither provide nor confirm any information regarding the turnover figures in regard to the opponent’s goods and services.

The information given in the reports about the opponent’s revenues on the gaming market does not refer to the sign(s) that these revenues relate to. A list is given regarding the ‘ten major games in Sweden’ and ‘KENO’ is listed, inter alia, as one of the kinds/types of games played; however, this acknowledgement is not related to the sign(s) that distinguish the goods/services of one provider from those of another. Even if the word ‘KENO’ was seen as a reference to the earlier signs, the information provided by the opponent in its reports is not confirmed or in any way endorsed by an independent party, as there is no indication of (or any documents provided by) the entity claimed to be the source of this information.

The same conclusion applies to the document entitled ‘Brand awareness Keno’, submitted by the opponent, which is not confirmed or supported by documents originating from independent parties, namely from the company that is claimed to be the source of the information. Furthermore, there is no information on the kinds of questions that were included in the questionnaire, or on how and in what order the questions were formulated. Therefore, it could not be determined if the respondents were confronted with leading questions, and the credibility of the percentages provided by the opponent could not be evaluated. It is also unclear whether the results submitted concerned the awareness about ‘Keno’ as a kind of game or as a trade mark. It follows that the information provided in this document does not allow the Opposition Division to infer whether or not the results claimed show the awareness of the relevant public about the earlier signs in regard to the relevant goods and services.

The rest of the documents drafted by the opponent are not confirmed by independent parties either and, therefore, their validity could not be verified. The photographs of draws, even though they show certain draw games bearing the name ‘KENO’, do not show the frequency or duration of the game, and they do not contain any information about the number of people who are exposed to, viewing and/or participating in the game.

All of the evidence originates from the opponent and there is no independent evaluation or confirmation of the market presence and recognition by the relevant public of the relevant goods and services that is claimed by the opponent. The claimed figures of public awareness are not supported by any documents originating from independent sources, and neither are the claimed net sales figures for the ‘KENO’ game. The reports submitted refer to the opponent’s revenue; however, the information provided does not contain details explaining to which goods and/or services the amounts relate. The data provided in some of the reports about the opponent’s ranking in the ‘Swedish gaming market’ are not further supported by any other documents, such as from the independent sources that they are claimed to originate from.

The evidence does not indicate the market share of the trade marks or the extent to which the trade marks have been promoted. The financial and operational performance indicators have not been put into the context of the market and the competitors in question. It appears that the opponent’s activities target the gaming business. However, in the absence of any evidence from independent sources, the opponent’s submissions, notwithstanding the fact that they contain excerpts of audited and publicly available annual reports, are insufficient for establishing that there is at least a certain degree of knowledge of the opponent’s marks in the relevant territory for the goods and services at issue.

As a result, the evidence is insufficient to show the degree of recognition of the trade marks by the relevant public. Under these circumstances, the Opposition Division concludes that the opponent failed to prove that its trade marks have a reputation. For the sake of completeness, the Opposition Division concludes that the evidence submitted by the opponent does not demonstrate that the earlier trade marks acquired a high degree of distinctiveness through their use either.

As seen above, it is a requirement for the opposition to be successful under Article 8(5) EUTMR that the earlier trade mark has a reputation. Since it has not been established that the earlier trade marks have a reputation, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, and the opposition must be rejected.

Since the opposition was rejected on the ground of Article 8(5) EUTMR, the Opposition Division will further proceed with the examination on the other ground invoked by the opponent, namely Article 8(1)(b) EUTMR.

LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s Swedish trade mark registration No 339 504.

1. The goods and services

The goods and services on which the opposition is based are the following:

Class 16:                Printed matter.

Class 28:                Games and toys.

Class 41:                Betting and gambling services.

The contested goods are the following:

Class 28:        Toys; gambling machines; coin-operated amusement gaming machines; amusement and gaming machines; amusement and gaming electric and/or electronic machines, apparatus and installations; video game machines and apparatus; parts and fittings for the said goods not included in other classes.

Toys are identically contained in both lists of goods.

The contested gambling machines; coin-operated amusement gaming machines; amusement and gaming machines; amusement and gaming electric and/or electronic machines, apparatus and installations; video game machines and apparatus are included in the broad category of, or at least overlap with, the opponent’s games. Therefore, they are identical.

The contested parts and fittings for the said goods (toys) not included in other classes are connected to the opponent’s toys. The contested good are often produced and sold by the same manufacturer that produces the final product and are directed at the same public and usually distributed through the same channels. Furthermore, they are complementary. The goods are considered to be similar to a high degree.

The same reasoning applies for the contested parts and fittings for the said goods (gambling machines; coin-operated amusement gaming machines; amusement and gaming machines; amusement and gaming electric and/or electronic machines, apparatus and installations; video game machines and apparatus) not included in other classes and the opponent’s games. The goods in comparison coincide in their producer, end user and distribution channels and could also be complementary. These are, therefore, considered to be similar to a high degree.

2. 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 and similar to a high degree are directed at the public at large, but also at some business customers with specific professional knowledge or expertise (e.g. those searching for gaming machines to equip a casino). The degree of attention will vary between average and higher than average depending on the price and the specific purpose of the goods at issue.

3. The signs

KENO
Earlier trade mark	Contested sign

The relevant territory is Sweden.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23).

The earlier mark, being a word mark consisting of a single element ‘KENO’, has no elements that could be considered more or less distinctive or dominant than others.

However, ‘Keno’ is a lottery-like gambling game, resembling bingo (see http://www.merriam-webster.com/dictionary/keno). The noun ‘kenolotteri’ in Swedish, meaning ‘Keno-Lottery’, appears, for example, in the following online dictionary: http://tyda.se/search/kenolotteri?lang%5B0%5D=en&lang%5B1%5D=sv. In this regard, the Opposition Division sees no reason to depart from the reasoning of the Fourth Board of Appeal in its decision of 25/02/2016 in case R 1262/2015-4 ‘ORTIZ LOTTERY KENO/KENO, § 21-22, which examined the meaning of the term ‘KENO’ and was already referred to above.

Therefore, the only element of the earlier sign will be understood by the public in the relevant territory as referring to the lottery-like gambling game. The relevant goods are games and toys, therefore this element refers directly to the subject matter or nature of the relevant goods.

The contested sign is a figurative mark consisting of the word ‘LOTTERY’, written in yellow-golden slightly stylised and slanted upper case letters, below which is the element ‘KENO’, written in a much smaller typeface in white upper case letters, with each letter placed in its own red circle; the elements described above are placed against a large purple and white circular device, resembling a stylised letter ‘O’ or the numerical ‘zero’. All these elements are further depicted against a semi-circular background containing yellow-golden circular shapes in different sizes and abstract lines in different shades of green, blue, yellow, purple and black.

The element ‘KENO’ in the contested sign will be perceived with the meaning specified above. Bearing in mind that the relevant goods are toys and gaming/amusement machines and parts, this element is considered non-distinctive for these goods, as it describes the subject matter, nature and/or purpose of the relevant goods.

The element ‘LOTTERY’ in the contested sign will be understood as the ‘game of chance/gambling game’, due to its similarity to the equivalent Swedish word (‘lotteri’). This element is non-distinctive for the relevant goods, as it describes the subject matter, nature and/or purpose of the relevant goods.

The large purple and white circular device of the contested sign could be perceived as a stylised letter ‘O’ (or the numerical ‘zero’) and the semi-circular background containing different shapes and colours would be perceived as an abstract device. However, the entire graphic depiction of the contested sign – namely its combination of colours, its typeface and forms, including the purple and white circular device resembling a stylised letter ‘O’ (or the numerical ‘zero’) and the background shape, containing different colours and forms – is distinctive to a certain degree.

The contested sign has no elements that could be considered clearly more dominant than other elements.

Visually, the signs coincide in the element ‘KENO’, present identically in both signs. However, they differ in the element ‘LOTTERY’ (which is non-distinctive) and the entire graphic depiction of the contested sign, namely the circular device, resembling a stylised letter ‘O’ (or the numerical ‘zero’), the positioning of the elements within the sign, the typeface, the background shape and the colour and shapes combination.

Bearing in mind what has been said above about the element ‘KENO’ and taking into account that the signs visually coincide only in this element, the signs are considered visually similar to a very low degree.

Aurally, the pronunciation of the signs coincides in the word ‛KENO’, present identically in both signs. The pronunciation differs in the element ‘LOTTERY’ of the contested mark, which has no counterpart in the earlier sign. The pronunciation will also differ in the sound of the letter ‘O’ or the numerical ‘zero’ (if perceived as such and pronounced) of the contested sign.

Bearing in mind what has been said above about the element ‘KENO’ and taking into account the significant length of the verbal element ‘LOTTERY’ (even though it is non-distinctive), it is concluded that the signs are aurally similar to a very low degree.

Conceptually, the signs coincide in the meaning of the element ‘KENO’, outlined above. The element ‘LOTTERY’ of the contested sign, as defined above, resembles the Swedish word with the same meaning, and it complements the meaning of the element ‘KENO’. The signs differ in the concept of the letter ‘O’ (or the numerical ‘zero’) if the purple and white circular device of the contested sign is perceived as such.

As the signs are conceptually linked, based on descriptive terms, it is considered that they are conceptually similar to a low degree.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. 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.

According to the opponent, the earlier trade mark has a reputation and enjoys a high degree of distinctiveness as result of its long-standing and intensive use in Sweden in connection with all the goods and services for which it is registered. This claim must be properly considered given that the distinctiveness of the earlier trade mark must be taken into account in the assessment of likelihood of confusion. Indeed, the more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 18).

The evidence submitted by the opponent to prove the reputation and highly distinctive character of the earlier trade mark has already been examined above under the grounds of Article 8(5) EUTMR, where it has been established that the evidence does not demonstrate that the earlier trade mark acquired a high degree of distinctiveness (or reputation) through its use.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as low for all the relevant goods in question, as the evidence submitted by the opponent and already assessed above does not even show that the earlier mark has acquired a normal degree of distinctiveness through its use.

5. Global assessment, other arguments and conclusion

The contested goods are found to be identical and similar to a high degree to the opponent’s goods. The level of attention will vary from average to higher than average.

The signs coincide as far as they both have the element ‘KENO’, which refers to the specified gambling game. The applicant, by inserting the element ‘KENO’ (being also much smaller in size than the verbal element ´LOTTERY´) in the contested sign, is indicating the kind of the game concerned by the goods in question. The contested sign, furthermore, contains additional elements, such as the circular device, resembling a stylised letter ‘O’ and the element ‘LOTTERY’ (although it is non-distinctive), the background device with different shapes and colours, and thus differs from the earlier mark in its entire graphic depiction. Even though the element ‘KENO’ is fully included in the contested sign, in the context of this sign it does not play an independent and distinctive role, as it directly refers to the relevant goods.

The additional elements and the entire graphic depiction of the contested sign are clearly perceptible and sufficient to exclude any likelihood of confusion between the marks, bearing also in mind that the common element is perceived in the contested sign in completely descriptive way and it is not a dominant element in this sign.

Considering all the above, even for the goods found to be identical, there is no likelihood of confusion on the part of the public. Therefore, 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.

The opponent has also based its opposition on the following earlier trade marks: Swedish trade mark registrations No 339 504 ‘KENO’, No 342 278 ‘KENO’, No 353 427 ‘KUNG KENO’, No 320 402  and No 405 492 , and Swedish well-known trade mark ‘KENO’.

The other earlier rights invoked by the opponent are equally similar to the contested mark as the mark already compared or less similar (as they contain additional verbal or figurative elements). Therefore, the outcome cannot be different with respect to goods for which the opposition has already been rejected; no likelihood of confusion with the remaining earlier trade marks exists.

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

Elisa ZAERA CUADRADO

Irina SOTIROVA

Julie GOUTARD

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.