OCEAN CAMPUS | Decision 2749680

Date Published: Sep 25, 2017

OPPOSITION No B 2 749 680

Encampus Residencias de Estudiantes, S.A., C/ Serrano, nº 30 - Planta 2ª, Madrid 28001, Spain (opponent), represented by Clarke, Modet y Cía. S.L., Rambla de Méndez Núñez, 12 - 1º Puerta 2 bis, 03002 Alicante, Spain (professional representative)

a g a i n s t

Oceanic Holding AB, Manufakturgatan 4, 41707 Gothenburg, Sweden (applicant).

On 13/07/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 554 478 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 and services of European Union trade mark application No 15 195 704, namely against all the services in Classes 36, 37, 42 and 43. The opposition is based on European Union trade mark registration No 12 632 212. 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.

1. The services

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

Class 36: Real estate affairs; Actuarial services; Customs brokerage; Debt collection agencies; Financial analysis; Credit leasing; Leasing of farms; Home banking; Clearing-houses, financial; Mutual funds; Brokerage; Brokerage of carbon credits; Insurance brokerage; Stockbroking; Securities brokerage; Stock exchange quotations; Deposit of valuables; Factoring; Issuance of tokens of value; Fiduciary; Financial information; Fund investments; Retirement payment services; Business liquidation services, financial; Currency trading and exchange services; Marine insurance underwriting; Antique appraisal; Jewellery appraisal; Art appraisal; Stamp appraisal; Numismatic appraisal; Real-estate valuations; Valuation of standing timber (Financial -); Financial evaluation of wool.

Class 37: Rental of bulldozers; Rental of excavators; Rental of cranes [construction equipment]; Rental of road sweeping machines; Hire of building machinery; Rental of cleaning machines; Airplane maintenance and repair; Strong-room maintenance and repair; Building of fair stalls and shops; Shipbuilding; Building consultancy; Quarrying services; Mining extraction; Factory construction; Diaper cleaning; Artificial snow-making services; Pipeline construction and maintenance; Drilling of deep oil or gas-wells; Harbour construction; Underwater repair; Re-tinning; Underwater construction.

The contested services are the following:

Class 36: Rental of apartments; Rental of offices; Estate management.

Class 37: Production of buildings; Assembly of houses.

Class 42: Structural engineering services; Architectural services.

Class 43: Rental of temporary accommodation.

Contested services in Class 36

The opponent’s broad category of real estate affairs includes the contested rental of apartments; rental of offices; estate management. Consequently, these services are identical.

Contested services in Class 37

The opponent’s rental of bulldozers; rental of excavators and rental of cranes [construction equipment] are related to the contested production of buildings; assembly of houses in that they have the same final purpose of building construction, they are complementary and they target the same public. Consequently, these services are considered similar.

Contested services in Class 42

The contested structural engineering services and architectural services concern mainly the provision of technical advice on construction calculations, feasibility, safety and installations for technical projects in the fields of, for example, architecture, infrastructure, water management and urban engineering. Therefore, there is a link with the opponent’s building consultancy; factory construction; pipeline construction and underwater construction in that these services are complementary. They also have the same final purpose of building construction and target the same public. Consequently, these services are considered similar.

Contested services in Class 43

As stated above, the opponent’s real estate affairs services include services such as rental of apartments. Therefore, they have the same purpose as the contested rental of temporary accommodation, even though the renting is not permanent. These services can target the same public. Consequently, they are similar to a low 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 services found to be identical, similar or similar to a low degree are directed at the public at large (e.g. in the case of rental of temporary accommodation) and at business customers with specific professional knowledge or expertise in the fields of real estate affairs, construction and architecture.

It should be noted that the relevant services involve business transactions that involve both risk and the transfer of large sums of money. For these reasons, the relevant consumer is deemed to have a higher than average degree of attention, since the consequences of making a poor choice through lack of attention might be highly damaging.

Therefore, the degree of attention of the public may vary from average to high.

3. The signs

EnCampus	OCEAN CAMPUS
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).

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

Both marks are word marks and, by definition, they have no dominant elements.

The earlier mark, ‘EnCampus’, has no meaning as a single word. However, part of the public might split it into parts because the element ‘Campus’ or ‘En’, or both, may be perceived as meaningful, as explained below. The Opposition Division notes that the earlier mark is depicted in a combination of upper case and lower case, which could be perceived as separating the word ‘En’ from ‘Campus’.

The element ‘CAMPUS’ is understood in a large part of the EU as referring to the grounds and buildings of a university or college, because the consumers either understand English or have similar equivalent words in their language, for example ‘kampus’ in Polish. As such, in relation to the relevant services, this part of the public may perceive this element as a reference to the subject of the services and therefore it is weak.

However, for another part of the public, namely the Latvian-, Lithuanian- and Estonian-speaking parts of the public, the element ‘CAMPUS’ has no meaning and is distinctive.

The Opposition Division will therefore first examine the opposition in relation to the part of the public for which ‘CAMPUS’ has no meaning and has a normal degree of distinctiveness.

For this part of the public, the differing element ‘En’ of the earlier mark has no meaning. The contested sign’s first word, ‘OCEAN’, will be perceived by the relevant public as referring to ‘a body of saline water that composes much of a planet’s hydrosphere’ and therefore has no meaning in relation to the relevant services.

Therefore, both signs are inherently distinctive.

Visually, the signs coincide in the element ‘CAMPUS’. However, they differ in their structures, one word versus two words, and in their beginnings, ‘En’ in the earlier mark and ‘OCEAN’ in the contested sign.

The first parts of the conflicting marks are different. Consumers generally tend to focus on the first element of a sign when being confronted with a trade mark. This is justified by the fact that the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. Given that the similarities between the signs lie in the latter parts of the marks, their impact is reduced.

It should also be mentioned that, given the lengths of the signs and the differences at their beginnings, consumers will not undertake an artificial dissection of the signs that would lead them to identify a string of letters that is not featured in an independent or clearly identifiable manner. The differences in the signs’ beginnings and structures are decisive.

Therefore, the signs are visually similar to a low degree.

Aurally, the pronunciation of the signs coincides in the syllables ‘CAM-PUS’, present identically in both signs. The signs have different lengths and are composed of one word (the earlier mark) and two words (the contested sign). They differ in the pronunciation of their beginnings, ‘En’ in the earlier mark and ‘O-CE-AN’ in the contested sign. As stated above, consumers tend to focus on the first elements of signs, which are different in the present case.

Therefore, the signs are aurally similar to a low degree.

Conceptually, although the public in the relevant territory will perceive the meaning of the element ‘OCEAN’ of the contested sign, as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

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.

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 relevant public on which the present examination is focused. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

When determining the existence of likelihood of confusion, trade marks have to be compared by making an overall assessment of the visual, aural and conceptual similarities between the marks. The comparison 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)

In the present case, the conflicting goods are partly identical, partly similar and partly similar to a low degree. The degree of attention paid by the relevant public varies from average to high. The marks are visually and aurally similar to a low degree. Conceptually, the signs have no meaning.

When considering the principle of interdependence as established in the judgment of 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17, it is true that the goods are similar (to various degrees) or identical, which may sometimes be sufficient to counterbalance a low degree of similarity between signs. However, this principle also takes into account other relevant factors, such as the relevant consumers and their degree of attention. In the present case, consumers may display a high degree of attention, given that some of the relevant services involve large amounts of money and/or are not services required on a daily basis. In this context, the different beginnings and lengths of the signs enable the marks to be clearly distinguished. Furthermore, the coinciding element is the second element in both marks, which have different structures (one word versus two words). The relevant public is not particularly likely to dissect the earlier mark and perceive the coinciding element, and indeed might be prompted to do so only by a side-by-side examination of the marks, which does not reflect the market reality.

Taking into account also the lack of conceptual similarity, the Opposition Division considers that the differences between the signs are sufficient to exclude the possibility that the public might believe that the goods in question came from the same undertaking or economically linked undertakings.

Considering all the above, there is no likelihood of confusion on the part of the Latvian-, Lithuanian- and Estonian-speaking parts of the public.

The part of the public for which the element ‘CAMPUS’ is weak is even less likely to be confused. This is because, as a result of the weak character of the coinciding element, that part of the public will perceive the commonality as even less relevant.

Therefore, the opposition must be rejected.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, the costs to be paid to the applicant are the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Ioana MOISESCU

Cynthia DEN DEKKER

Jessica LEWIS

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.