Quadricar | Decision 2746025
Date Published: Sep 24, 2017
OPPOSITION No B 2 746 025
Quadriga Car Retail, Naamloze Vennootschap, Bist 12, 2630 Aartselaar, Belgium (opponent), represented by Bureau de Rycker, Arenbergstraat, 13, 2000 Antwerpen, Belgium (professional representative)
a g a i n s t
C.C.N. Companhia Comercial Nacional de Automóveis Lda, Rua Rodrigues Sampaio nº15, 22795-175 Linda a Velha, Portugal (applicant).
On 25/08/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 746 025 is upheld for all the contested goods.
2. European Union trade mark application No 15 659 295 is rejected in its entirety.
3. The applicant bears the costs, fixed at EUR 620.
REASONS:
The opponent filed an opposition against all the goods of European Union trade mark application No 15 659 295 for ‘Quadricar’. The opposition is based on, inter alia, European Union trade mark registration No 8 942 691 for . 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 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 European Union trade mark registration No 8 942 691.
- The goods
The goods on which the opposition is based are the following:
Class 12: Vehicles; apparatus for locomotion by land, air or water.
The contested goods are the following:
Class 12: Automotive vehicles; vehicles for use on land; vehicles and conveyances; land vehicles and conveyances; vehicles; freight carrying vehicles; electric vehicles; passenger carrying vehicles; passenger motor vehicles; wheeled vehicles; hybrid cars; cars; electric cars; automobiles and structural parts therefor; motor cars for racing; driverless cars [autonomous cars]; tramcars; hearses; golf cars [vehicles]; sports cars.
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 12
The contested vehicles (mentioned twice), conveyances (mentioned twice) are identically contained in both lists of goods (including synonyms).
The contested automotive vehicles; vehicles for use on land; land vehicles; freight carrying vehicles; electric vehicles; passenger carrying vehicles; passenger motor vehicles; wheeled vehicles; hybrid cars; cars; electric cars; automobiles; motor cars for racing; driverless cars [autonomous cars]; tramcars; hearses; golf cars [vehicles]; sports cars are included in the broad category of the opponent’s vehicles in Class 12. Therefore, they are identical.
The contested structural parts therefor (automobiles) and the opponent’s vehicles in Class 12 are likely to have the same producers and they may target the same relevant public. Moreover, they are complementary and may be distributed through the same channels. Therefore, these goods are similar.
- 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, such as car manufacturers and automobile mechanics. Some goods are also meant for the average consumer, such as vehicles or their parts for repair or maintenance purposes. The public’s degree of attention is considered to be above average, as their price could also be high, they are in general infrequent purchases and the goods are quite specialised.
- The signs
Quadricar | |
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). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application. The element ‘car’ is understood in certain territories, for example, in those countries where English is spoken. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.
The earlier mark is a figurative mark consisting of the word ‘Quadriga’, written in a slightly fancy grey typeface in title case with the first letter larger in size than the remaining letters and with some red on the bottom right side.
The contested sign is a word mark consisting of the word ‘Quadricar’. In case of word marks, the words themselves are protected, not their written form. Therefore, it is irrelevant whether a word mark is represented in lower or upper case or a combination of those letters.
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 they know (13/02/2007, T-256/04, Respicur, EU:T:2007:46, § 57). With respect to the contested sign, even though the letters ‘car’ are not visually separated from the remaining letters, consumers naturally look for a meaning when reading a word. Indeed, the element ‘car’ will be understood by the whole relevant public on which the present comparison is focussed as referring to ‘a motor vehicle with room for a small number of passengers’ (see Collins English Dictionary online). This element is descriptive with respect to the relevant goods, as it only indicates their kind and is, therefore, non-distinctive. Furthermore, for a part of the public, the element ‘Quadri-‘, in the contested sign has no clear meaning in relation to the relevant goods and is, therefore, distinctive. Although that for another part of the relevant public ‘Quadri-‘ might be allusive to some extent, as it might indicate that the vehicle has four wheels, is for four persons or is 4x4, it is not directly descriptive and, therefore, it is considered to have at least a minimum degree of distinctiveness in relation to the relevant goods and is, in any case, the most distinctive element of the contested sign, as the element car is non-distinctive.
With respect to the earlier mark, the word ‘Quadriga’, which will be perceived as a whole, has no clear meaning for the public in relation to the relevant goods and as such it is distinctive.
Visually, the signs coincide in the sequence of letters ‘Q-U-A-D-R-I-*-A-(*)’, with the only difference the slightly fancy typeface in which these letters of the earlier mark are written. In the contested sign, it forms also the most distinctive verbal element. The marks differ in the seventh letter ‘G’ versus the seventh letter ‘c’ and last letter ‘r’ in the contested sign, of which the latter letters pertain to a non-distinctive element.
Regarding the slightly fancy typeface in which the earlier mark is written, this stylisation must be considered not that elaborate or sophisticated and it will not lead the consumer’s attention away from the element it seems to embellish.
Furthermore, the first parts of the conflicting marks, ‘QUADRI-‘, coincide, i.e. the part which forms the entirety of the most distinctive element of the contested sign. 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.
Therefore, the signs are visually similar to an average degree.
Aurally, the pronunciation of the signs coincides in the sound of the letters /Q-U-A-D-R-I-*-A-(*)/, present identically in both signs. The marks are both pronounced in three syllables, as /QUA-DRI-GA/ versus /QUA-DRI-CAR/. Furthermore, even though the earlier mark contains the letter ‘G’, a voiced velar stop, versus the letter ‘C’, a voiceless velar stop, in the contested sign, these letters are pronounced in a quite similar way and are followed by the same vowel ‘A’. The marks are aurally similar to a high degree.
Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks and their individual elements. As the relevant public will grasp the meaning of the word ‘car, and may be ‘quadri’ in the contested sign, while the earlier mark will be perceived as a fanciful meaningless term, the marks are conceptually not similar.
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 English-speaking part 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
A likelihood of confusion (including a likelihood of association) 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.
The goods at issue have been found to be partly identical and partly similar, while the level of attention is above average. The earlier mark as a whole has a normal degree of distinctiveness.
The marks have been found visually similar to an average degree, aurally to a high degree and the marks are, from a conceptual level, not similar.
In addition, account should also be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks and must place his trust in the imperfect picture of them that he has kept in his mind (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Even consumers with a high degree of attention need to rely on the their imperfect recollection of trade marks (21/11/2013, T-443/12, ancotel, EU:T:2013:605, § 54).
Considering all the above, there is a likelihood of confusion on the part of the English-speaking part of the public, this even taking into account a higher degree of attention. 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.
Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 8 942 691. It follows that the contested trade mark must be rejected for all the contested goods.
As the earlier right, European Union trade mark registration No 8 942 691, leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier right invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).
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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.
According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.
The Opposition Division
Martin MITURA | Chantal VAN RIEL | Saida CRABBE |
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.