RCR | Decision 2744616
Date Published: Sep 28, 2017
OPPOSITION No B 2 744 616
RCA Trademark Management, 1-5 rue Jeanne d'Arc, 92130 Issy-les-Moulineaux, France (opponent), represented by Despacho González-Bueno, S.L.P., Calle Velázquez 19, 2º dcha., 28001 Madrid, Spain (professional representative)
a g a i n s t
Zhongshan JunGuo Electrical Appliances Co., Ltd., No.3, Huacheng Rd., Xiaolan, town, Zhongshan City, Guangdong Province, Peoples Republic of China (applicant), represented by Zhaoffice SPRL, rue de Bedauwe 13, 5030 Gembloux, Belgium (professional representative).
On 24/05/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 744 616 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 15 366 883. The opposition is based on European Union trade mark registration No 15 029 374. 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 goods
The goods on which the opposition is based are the following:
Class 7: Clothes washing machines; spin dryers; washing machines for crockery; vacuum cleaners; bags, pipes, filters and brushes for vacuum cleaners; ironing machines; high-pressure steam units; electric cleaning apparatus; ultrasonic cleaners; parquet wax-polishers, electric; shoe polishers, electric; waste shredding machines; trash compacting machines; electrical machines for household purposes; electric beaters, whips, food processors, centrifuges, mixers, electric blenders for household purposes; electric fruit presses, electric can openers, coffee grinders, other than hand-operated, electric knives, electric peeling machines, slicing machines, meat mincing machines (meat grinders), grating machines for vegetables, bread cutter machines, pasta machines; kitchen grinders, electric pepper and salt mill; aerated beverage-making machines; bottle washing machines; sewing machines; electric devices for opening and closing doors and gates; gate and door motorisations; curtain drawing devices, electrically operated; wind turbines; wind pumps; current-generators, generators of electricity; pumps for heating installations.
The contested goods are the following:
Class 7: Meat mincers [machines]; meat choppers [machines]; kneading machines; pressing machines; oil centrifuges; mixers [machines]; crushers for kitchen use, electric; beaters, electric; blenders, electric, for household purposes; kitchen machines, electric; whisks, electric, for household purposes; fruit presses, electric, for household purposes; food processors, electric; kitchen grinders, electric; mills for household purposes, other than hand-operated; vegetable shredders [machines]; electric meat slicers for kitchen use.
Some of the contested goods are identical to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark.
- 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 assumed to be identical are directed at the public at large.
The degree of attention is average.
- The signs
RCA | |
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 earlier mark is the word mark ‘RCA’.
The contested sign consists of the verbal element ‘RCR’ written in slightly stylized bold upper case letters.
For the majority of the relevant public, the letter combinations ‘RCA’ and ‘RCR’ have no particular meaning in relation to the relevant goods and both signs are distinctive.
The length of the signs may influence the effect of the differences between them. The shorter a sign, the more easily the public is able to perceive all of its single elements. Therefore, in short words small differences may frequently lead to a different overall impression. In contrast, the public is less aware of differences between long signs.
Visually, the signs coincide in the letters ‘RC’. However, they differ in the final letters, ‘A’ in the earlier mark and ‘R’ in the contested sign, which visually are very different. The signs also differ in the stylisation of the contested sign. Furthermore, it has an effect on the overall visual impression of the signs that the earlier mark contains a vowel while the contested sign is made up only of consonants.
Due to the short length of the signs the differentiating final letter is striking and has a big impact on the overall visual impression of the signs.
Therefore, the signs are visually similar to a low degree.
Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‛RC*’. However, the pronunciation differs in the sound of the letter ‛**A’ in the earlier mark and the letter ‘**R’ in the contested sign. Aurally it also has a big effect on the overall impression of the signs that the earlier mark contains a vowel while the contested sign only contains consonants.
For those reasons, and as the sound of the differentiating letter is not similar throughout a substantial part of the territory, and taking into consideration the short length of the signs, the signs are aurally similar to a low degree.
Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.
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 has no meaning for any of the goods in question from the perspective 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
According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 29).
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).
The contested goods are assumed to be identical to the opponent’s goods and the level of attention is average. The earlier trade mark has a normal degree of distinctiveness.
The signs in dispute both have three letters; both are, consequently, short marks and it is considered that the fact that they differ in one letter is a relevant factor to consider when evaluating the likelihood of confusion between the conflicting signs.
As explained in detail in section c) of this decision, the coincidences in the letters ‘RC*’ are of such a nature as to lead to a finding of only a low degree of visual and aural similarity. Moreover, a conceptual comparison is not possible.
The different letters ‘A’/’R’ are not a phonetically or visually similar letters. Consequently, even though the signs coincide in two letters, this leads to a finding of no likelihood of confusion, because the difference in the one letter is striking and has such an impact on the overall impression of the signs that consumers easily can differentiate between them.
As regards the General Court’s decision of 23/10/ 2002, T-388/00, ELS, EU:T:2002:260, referred to by the applicant, the outcome was, inter alia, based on the phonetically similarity between the letter ‘i’ and the letter ‘E’ for the German part of the public, and this case is therefore not comparable with the decision in question.
The opponent refers to the principle of interdependence, which implies that a lesser degree of similarity between the goods and services may be offset by a greater degree of similarity between the signs and vice versa. The Opposition Division has taken this principle into account when assessing the likelihood of confusion; the fact that the designated goods are assumed to be identical cannot, in the present case, compensate for the difference identified between the signs.
Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public. 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
José Antonio GARRIDO OTAOLA | Cecilie Leth BOCKHOFF | 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.
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.