REVER PARIS | Decision 2742560 - CASINO GUICHARD PERRACHON Société Anonyme v. Angelo Arienzo

Date Published: Sep 28, 2017

OPPOSITION No B 2 742 560

Casino Guichard Perrachon Société Anonyme, 1, esplanade de France, 42000 Saint Etienne, France (opponent), represented by Cabinet Germain & Maureau, 31-33 Rue de la Baume, 75008 Paris, France (professional representative)

a g a i n s t

Angelo Arienzo, Piazzetta Arenella 7H, 80128 Napoli, Italy (applicant).

On 26/05/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 742 560 is rejected in its entirety.

2.        The opponent bears the costs.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 358 501. The opposition was originally based on French trade mark registrations No 3 988 470, No 3 988 475 and No 93 469 169. 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 was originally based on three earlier French trade marks. However, on 05/12/2016, the opponent withdrew the earlier trade mark No 93 469 169 as a basis of the opposition. Consequently, the opposition is based only on the two remaining earlier trade marks No 3 988 470 and No 3 988 475.

1. The goods

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

FR No 3 988 470

Class 25:        Clothing, footwear, headgear; Shirts; Clothing of leather or imitations of leather; Belts (clothing); Furs (clothing); Gloves [clothing]; Scarves; Neckties; Hosiery; Socks; Layettes (clothing); Slippers; Beach shoes, skiing or sports shoes; Underwear; hooded towels; cloth bibs; robes; diaper pants of textile.

FR No 3 988 475

Class 25:        Clothing, footwear, headgear; Shirts; Clothing of leather or imitations of leather; Belts (clothing); Furs (clothing); Gloves [clothing]; Scarves; Neckties; Hosiery; Socks; Layettes (clothing); Slippers; Beach shoes, skiing or sports shoes; Underwear; hooded towels; cloth bibs; robes; diaper pants of textile.

The contested goods are the following:

Class 25:        Clothing; Headgear; Hats; Roll necks [clothing]; Casualwear; Thermally insulated clothing; Christening robes; Loungewear; Ladies' clothing; Weather resistant outer clothing; Clothing for wear in judo practices; Clothing for wear in wrestling games; Work clothes; Girls' clothing; Tennis wear; Menswear; Clothing made of fur; Formalwear; Formal evening wear; Rainproof clothing; Cashmere clothing; Clothing of imitations of leather; Woolen clothing; Leather clothing; Plush clothing; Silk clothing; Knitted underwear; Baby bottoms; Japanese traditional clothing; Dresses; Suits; Ball gowns; Women's ceremonial dresses; Nurse dresses; Sports clothing [other than golf gloves]; Sportswear; Triathlon clothing; Baby tops; Motorists' clothing; Cyclists' clothing; Bridesmaids wear; Maternity clothing; Clothing for gymnastics; Leisurewear; Clothing for horse-riding [other than riding hats]; Dance clothing; Clothing for martial arts; Clothing for skiing; Skating outfits; Figure skating clothing; Clothing for fishermen; Boys' clothing; Surfwear; Children's wear; Articles of clothing for theatrical use; Woven clothing; Bandanas [neckerchiefs]; Plastic baby bibs; Cloth bibs for adult diners; Linen clothing; Gym suits; Waterproof outerclothing; Sailing wet weather clothing; Rainwear; Neckwear; Beach robes; Bathrobes; Robes; Jumper dresses; Leisure suits; Bridesmaid dresses; Dresses made from skins; Zoot suits; Dry suits; Folk costumes; Wedding dresses; Dinner suits; Evening wear; Teddies [undergarments]; Baby bodysuits; Snap crotch shirts for infants and toddlers; Boleros; Bomber jackets; Hunting boot bags; Bodies [clothing]; Leotards; Boas [necklets]; Boas; Maternity smocks; Blazers; Bikinis; Sweat-absorbent underwear; Underwear; Thermal underwear; Babies' undergarments; Disposable underwear; Long johns; Ladies' underwear; Maternity sleepwear; Nightwear; Bermuda shorts; Bibs, not of paper; Cloth bibs; Water socks; Bed socks; Tennis socks; Woollen socks; Socks and stockings; Japanese style socks (tabi); Sweat-absorbent socks; Anti-perspirant socks; Ankle socks; Slipper socks; Socks; Men's socks; Sweat-absorbent stockings; Stockings; Ballroom dancing shoes; Caftans; Waist cinchers; Bustles for obi-knots (obiage-shin); Corsets; Burnouses; Suspender belts for men; Braces for clothing [suspenders]; Bralettes; Boy shorts [underwear]; Boxer shorts; Combinations [clothing]; Jumper suits; Rompers; Pram suits; Unitards; Ballet suits; Shift dresses; Nighties; Lounging robes; Veils [clothing]; Athletic uniforms; Ladies' dresses; Tennis dresses; Cap peaks; Tee-shirts; Bathwraps; Tops [clothing]; Mock turtlenecks; Tube tops; Crop tops; Costumes for use in children's dress up play; Trench coats; Tunics; Playsuits [clothing]; Running Suits; Women's suits; Skirt suits; Printed t-shirts; Short-sleeved or long-sleeved t-shirts; Petticoats; Dress shields; Basic upper garment of Korean traditional clothes [Jeogori]; Outerclothing; Outerclothing for men; Outerclothing for girls; Cashmere scarves; Collar protectors; Shawls and stoles; Mufflers [clothing]; Overcoats; Korean topcoats [Durumagi]; Shawls and headscarves; Shawls [from tricot only]; Anglers' shoes; Shawls; Footmuffs, not electrically heated; Boot cuffs; Arm warmers [clothing]; Leg warmers; Handwarmers [clothing]; Neck tubes; Neck scarfs [mufflers]; Bib overalls for hunting; Saris; Sarongs; Shortalls; Bib tights; Salopettes; Heelpieces for stockings; Brassieres; Moisture-wicking sports bras; Strapless bras; Sports bras; Adhesive bras; Bandeaux [clothing]; Pajamas (Am.); Pyjamas [from tricot only]; Baby doll pyjamas; Union suits; Polo shirts; Polo knit tops; Cuffs; Ponchos; Rain ponchos; Sunsuits; Pullovers; Crew neck sweaters; Long sleeve pullovers; Hooded pullovers; Tennis pullovers; Slipovers; Frock coats; Stocking suspenders; Sock suspenders; Furs [clothing]; Thongs; Shirt yokes; Petti-pants; Soccer bibs; American football bibs; Pelisses; Ski balaclavas; Bottoms [clothing]; Parkas; Bathing suit cover-ups; Coverups; Ear muffs [clothing]; Bowties; Moisture-wicking sports pants; Warm-up pants; Sports pants; Trousers for children; Lounge pants; Camouflage pants; Cargo pants; Khakis; Baselayer bottoms; Trousers of leather; Corduroy trousers; Golf pants, shirts and skirts; Waterproof trousers; Padded pants for athletic use; Dress pants; Stretch pants; Tracksuit bottoms; Sweatpants; Pajama bottoms; Yoga pants; Snowboard trousers; Ski trousers; Pirate pants; Gauchos; Snow pants; Nurse pants; Hunting pants; Short trousers; Casual trousers; Pedal pushers; Bloomers; Wind pants; Trews; Pantaloons; Trousers; Cycling shorts; Padded shorts for athletic use; Fleece shorts; Sweat shorts; Tennis shorts; Boardshorts; Rugby shorts; Golf shorts; Gym shorts; Boxing shorts; Swimming trunks; Bib shorts; Sliding shorts; Trunks; Shorts; Trousers shorts; Footless tights; Nappy pants [clothing]; Vests; Camiknickers; Negligees; Muumuus; Rash guards; Wet suits for surfing; Wetsuits for surface watersports; Wet suits for water-skiing; Wet suits for water-skiing and sub-aqua; Wet suits for windsurfing; Wet suits; Babies' pants [clothing]; Underpants; Pants; Snowboard mittens; Duffel coats; Puttees and gaiters; Skorts; Miniskirts; Baby bunting [clothing]; Eye masks; Sleep masks; Costumes; Morning coats; Shampoo capes; Pelerines; Cloaks; Fur cloaks; Cagoules; Mantles; Mittens; Maniples; Fur muffs; Muffs [clothing]; Polo sweaters; Turtleneck sweaters; Mock turtleneck sweaters; Guernseys; Sweaters; Warm-up tops; Sports jerseys and breeches for sports; Yoga shirts; Jogging tops; Cycling tops; Hooded tops; Short-sleeved T-shirts; Long-sleeved shirts; Undershirts; Hosiery; Sports jerseys; Sleeveless jerseys; Tracksuit tops; Running vests; Athletics vests; Baselayer tops; Padded shirts for athletic use; Maillots [hosiery]; Maternity lingerie; Liveries; V-neck sweaters; Football jerseys; Volleyball jerseys; Rugby tops; Lingerie; Leggings [trousers]; Replica football kits; Full-length kimonos (nagagi); Karate suits; Judo suits; Kimonos; Kilts; Jodhpurs; Jerseys [clothing]; Denim jeans; Foundation garments; Men's underwear; Garments for protecting clothing; Infant wear; Womens' outerclothing; Knitwear [clothing]; Fleeces; Motorcyclists' clothing of leather; Denims [clothing]; Weatherproof clothing; Paper clothing; Slipovers [clothing]; Ready-made clothing; Chefs' whites; Oilskins [clothing]; Raincoats; Gloves including those made of skin, hide or fur; Snowboard gloves; Wetsuit gloves; Gloves for cyclists; Camouflage gloves; Winter gloves; Knitted gloves; Ski gloves; Driving gloves; Motorcycle gloves; Riding gloves; Gloves with conductive fingertips that may be worn while using handheld electronic touch screen devices; Gloves [clothing]; Pantie-girdles; Girdles; Pinafores; Aprons [clothing]; Pleated skirts for formal kimonos (hakama); Culotte skirts; Nurse overalls; Overalls; Paper aprons; Plastic aprons; Tennis skirts; Golf skirts; Skirts; Blousons; Stuff jackets [clothing]; Shell jackets; Fishing vests; Down vests; Body warmers; Quilted vests; Leather waistcoats; Fleece vests; Hunting vests; Korean traditional women's waistcoats [Baeja]; Wind vests; Gilets; Snowboard jackets; Ski jackets; Car coats; Jackets being sports clothing; Quilted jackets [clothing]; Warm-up jackets; Sleeveless jackets; Suede jackets; Bushjackets; Reversible jackets; Camouflage jackets; Long jackets; Knit jackets; Denim jackets; Rainproof jackets; Down jackets; Polar fleece jackets; Fur jackets; Sheepskin jackets; Sweatjackets; Donkey jackets; Smoking jackets; Dinner jackets; Safari jackets; Fishermen's jackets; Motorcycle jackets; Riding jackets; Shirt-jacs; Men's and women's jackets, coats, trousers, vests; Bed jackets; Hunting jackets; Lumberjackets; Suit coats; Sleeved jackets; Light-reflecting jackets; Jackets [clothing]; Gaiters; Gussets for bathing suits [parts of clothing]; Gussets for tights [parts of clothing]; Gussets for footlets [parts of clothing]; Gussets for stockings [parts of clothing]; Gussets for leotards [parts of clothing]; Gussets for underwear [parts of clothing]; Underarm gussets [parts of clothing]; Gussets [parts of clothing]; Pop socks; Trouser socks; Knee-high stockings; Gabardines [clothing]; Gabardines; Scarfs; Headdresses [veils]; Head scarves; Neckerchiefs; Foulards [clothing articles]; Jacket liners; Ready-made linings [parts of clothing]; Waist strings for kimonos (koshihimo); Hooded sweatshirts; Sweat shirts; Silk scarves; Pocket squares; Kerchiefs [clothing]; Tennis sweatbands; Sweat bands for the wrist; Cummerbunds; Swaddling clothes; Sash bands for kimono (obi); Sweatbands; Wrist warmers; Bustle holder bands for obi (obiage); Maternity bands; Turtlenecks; Combative sports uniforms; Baseball uniforms; Desert boots; Panties; Tap pants; Crinolines; Ascots; Silk ties; Bolo ties; Cravats; Theatrical costumes; Costumes for use in role-playing games; Beach clothes; Masquerade costumes; Swim wear for gentlemen and ladies; Dance costumes; Bathing suits for men; Bathing costumes for women; Fitted swimming costumes with bra cups; Bathing suits; Halloween costumes; Bustiers; Corselets; Layettes [clothing]; Halter tops; Chemise tops; Bolo ties with precious metal tips; Shoulder wraps [clothing]; Sundresses; Camisoles; Motorcycle riding suits; Pantsuits; Shirts and slips; One-piece suits; Three piece suits [clothing]; Tutus; Evening suits; Sailor suits; Short sets [clothing]; Wind suits; Aikido suits; Chemises; Detachable collars; Neckbands; Detachable neckpieces for kimonos (haneri); Collars for dresses; Shoulder wraps; Collars; Woollen tights; Tights; Trouser straps; Money belts [clothing]; Wrap belts for kimonos (datemaki); Fabric belts [clothing]; Belts made out of cloth; Leather belts [clothing]; Belts made from imitation leather; Belts [clothing]; Waist belts; String fasteners for haori (haori-himo); Cheongsams (Chinese gowns); Chaps (clothing); Chasubles; Sports jackets; Cardigans; Hoods [clothing]; Cowls [clothing]; Heavy coats; Coats for women; Winter coats; Coats of denim; Fur coats and jackets; Leather jackets; Cotton coats; Coats for men; Evening coats; Pea coats; Coats; Party hats [clothing]; Paper hats for use as clothing items; Sports caps and hats; Paper hats [clothing]; Waterproof capes; Capes; Windproof clothing; Undershirts for kimonos (juban); Sports singlets; Undershirts for kimonos (koshimaki); Long sleeved vests; Vest tops; Camouflage vests; Tank tops; Bodices [lingerie]; Moisture-wicking sports shirts; Woven shirts; Sports shirts with short sleeves; Casual shirts; Shirts for suits; Dress shirts; Camouflage shirts; Knit shirts; Ramie shirts; Button-front aloha shirts; Aloha shirts; Tennis shirts; Fishing shirts; Japanese sleeping robes (nemaki); Hunting shirts; Collared shirts; Button down shirts; Windshirts; Mock turtleneck shirts; Turtleneck shirts; Open-necked shirts; Shirts; Gowns for doctors; Laboratory coats; Barber smocks; White coats for hospital use; Short-sleeve shirts; Blouses; Slacks; Golf trousers; Walking breeches; Bathing trunks; Breeches; Thermal socks; Footless socks; Sports socks; Caps [headwear]; Berets; Bobble hats; Caps with visors; Golf caps; Ski hats; Knitted caps; Sports caps; Fedoras; Garrison caps; Skull caps; Top hats; Fashion hats; Knot caps; Baseball caps; Chefs' hats; Rain hats; Sun hats; Beach hats; Paper hats for wear by chefs; Paper hats for wear by nurses; Woolly hats; Bonnets; Bonnets [headwear]; Bathing caps; Waterpolo caps; Shower caps; Headbands [clothing]; Earbands; Sports headgear [other than helmets]; Thermal headgear; Millinery; Flat caps; Hat frames [skeletons]; Peaked headwear; Fascinator hats; Bucket caps; Tams; Children's headwear; Leather headwear; Nightcaps; Sedge hats (suge-gasa); Small hats; Fur hats; Yashmaks; Yashmaghs; Sun visors [headwear]; Sun visors; Visors; Turbans; Toques [hats]; Tam o'shanters; Rubber soles; Wimples; Boaters; Snoods [scarves]; Miters [hats]; Mantillas; Fezzes; Head sweatbands; Shoes; Dress shoes; Aqua shoes; Flat shoes; Gymnastic shoes; Bowling shoes; Football shoes; Mountaineering shoes; Canvas shoes; Rugby boots; Running shoes; Slip-on shoes; Volleyball shoes; Shoe soles; Heels; Rainshoes; Dance shoes; Deck shoes; Walking shoes; Handball shoes; Stiffeners for shoes; Golf footwear; Boxing shoes; Basketball sneakers; Baseball shoes; Training shoes; Tennis shoes; Athletic shoes; Hockey shoes; Casual footwear; Shoes for foot volleyball; High-heeled shoes; Ballet slippers; Infants' footwear; Bath shoes; Beach shoes; Galoshes; Footwear for women; Leather shoes; Sandals and beach shoes; Esparto shoes or sandals; Insoles [for shoes and boots]; Cycling shoes; Leisure shoes; Tongues for shoes and boots; Studs for football boots; Tap shoes; Cleats for attachment to sports shoes; Shoes with hook and pile fastening tapes; Bootees (woollen baby shoes); Ski and snowboard shoes and parts thereof; Protective metal members for shoes and boots; Pullstraps for shoes and boots; Shoes soles for repair.

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.

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 assumed to be identical are directed either at the public at large or at business customers. The degree of attention will be average for common clothing, footwear or headgear (e.g. printed t-shirts) and high for specialised goods (such as various types of sports articles or formal wear, e.g. formal evening wear) that can be expensive and are bought quite rarely.

3. The signs

FR No 3 988 470 BEBEREVE FR No 3 988 475
Earlier trade marks	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 elements ‘BEBE’ and ‘Bébé’ of the earlier signs will be associated with ‘baby’. Bearing in mind that the relevant goods are articles of clothing, footwear and headgear, these elements are either non-distinctive or weak for all the opponent’s goods.

‘BEBEREVE’ in the first earlier trade mark and ‘Bébé rêve’ in the second earlier trade mark will be understood as ‘baby is dreaming’. As the elements ‘REVE’ and ‘rêve’ are not descriptive, allusive or otherwise weak for the relevant goods, they are distinctive.

The Opposition Division considers that all the elements of the earlier marks have a more or less equal visual impact in terms of size and position. Consequently, the earlier marks have no elements that could be considered clearly more dominant (visually eye-catching) than other elements. Therefore, the Opposition Division cannot agree with the opponent’s assertion that the elements ‘REVE’ and ‘rêve’ are dominant in the earlier trade marks.

The unfinished circle around the second earlier trade mark and the little star have a rather decorative character and their distinctiveness is lower than average.

As far as the contested sign in concerned, the stylised element composed of two letter ‘R’s forming a downward pointing arrow is not descriptive, allusive or otherwise weak for the relevant goods and is, therefore, distinctive. The element ‘RÊVER’ of the contested sign will be understood as ‘to dream’ by the relevant public. As it is not descriptive, allusive or otherwise weak for the relevant goods, it is distinctive.

The element ‘PARIS’ of the contested sign is the name of the capital of France that is known to the relevant public as one of the world centres of fashion industry. Bearing in mind that the relevant goods in Class 25 are all in essence fashion articles, this element is non-distinctive for all the contested goods.

The stylised element composed of two letters ‘R’ and the element ‘RÊVER’ in the contested sign are the dominant elements as they are the most eye-catching. The Opposition Division does not agree with the opponent’s assertion that the element ‘RÊVER’ alone is the dominant element of the contested sign. This is because the stylised element composed of two letter ‘R’s is quite big and has a more or less equal visual impact as the word ‘RÊVER’.

Visually, the signs coincide in the sequence of letters ‘REVE(*)’. However, they differ in the additional reversed letter ‘R’ at the end of the element ‘RÊVER’ of the contested sign, the stylisation of the script (in the case of the contested sign and the second earlier trade mark) and the small accent above the letter ‘Ê’ (in the case of the contested sign and the first earlier trade mark). The marks also differ in all the  other elements that have no counterpart in the trade mark of the other party, namely the elements ‘BEBE’ and ‘Bébé’ and the unfinished circle and the star in the second earlier trade mark and, in the case of the contested sign, the stylised element composed of two letters ‘R’ and the small non-distinctive word ‘PARIS’. Furthermore, the marks also differ in their structure.

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

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛REV’, present identically in both signs, nevertheless in different syllables /rev/ (in the earlier marks) and /re-ve/ (in the contested sign). The pronunciation differs in the sound of the letters ‛BEBE’/’Bébé’ of the earlier sign, which have no counterparts in the contested mark. The double letter ‘R’ and the small and non-distinctive element ‘PARIS’ in the contested sign are not likely to be pronounced where referring aurally to the sign. The overall rhythm and intonation of the marks will be rather different, /be-be-rev/ vs. /re-ve/.

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

Conceptually, reference is made to the previous description of the marks and of the semantic content or their elements. Although the marks conceptually revolve about the notion of ‘dream’, there is at the same time a difference in that the earlier marks will be understood as a phrase, namely, ‘baby is dreaming’ whereas the element ‘RÊVER’ of the contested sign will be understood as the infinitive of the verb ‘to dream’. On the whole, the marks 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.

The opponent did not explicitly claim that its marks were particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. In the present case, the earlier trade marks as a whole have 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 marks must be seen as normal, despite the presence of some non-distinctive or weak elements in the marks as stated above in section c) of this decision.

The Opposition Division cannot agree with the opponent’s claim that since the elements ‘REVE’/rêve’ have no descriptive link to the goods, the earlier marks’ degree of distinctiveness is above the average. There is no ground for such a conclusion in the present case. The elements ‘REVE’ and ‘rêve’ are meaningful French words and the fact that they are not descriptive in relation to the goods does not automatically mean that their distinctiveness is above the average. The opponent did not claim or prove any enhanced distinctiveness of the earlier marks acquired by use or reputation of the marks.

5. Global assessment, other arguments and conclusion

The goods have been assumed to be identical. The degree of distinctiveness of the earlier trade marks is average. The degree of attention of the public will vary from average to high, depending on the characteristics of the goods being purchased (see section b) above).

The marks have visual, aural and conceptual similarities and dissimilarities, as described in detail above (see section c) ).

Generally in clothes shops customers can themselves either choose the clothes they wish to buy or be assisted by the sales staff. Whilst oral communication in respect of the product and the trade mark is not excluded, the choice of the item of clothing is generally made visually. Therefore, the visual perception of the marks in question will generally take place prior to purchase. Accordingly the visual aspect plays a greater role in the global assessment of the likelihood of confusion (06/10/2004, T-117/03 - T-119/03 & T-171/03, NL, EU:T:2004:293, § 50). This applies to all the goods in question that are all in essence fashion articles. Therefore, the considerable visual differences between the signs are particularly relevant when assessing the likelihood of confusion between them.

It is considered that, on the whole, the similarities between the marks are not sufficient to cause likelihood of confusion on the part of the public. The existing differences between the marks, and especially the visual ones, are enough for the public not to confuse the commercial origin of the relevant goods.

The opponent argues that the contested sign will be perceived as a sub-brand of the earlier marks. The Opposition Division finds that such a perception is unlikely because there is no identical (or nearly identical) element in the marks that would link them together as a common core element. The elements ‘REVE’/’rêve’ and ‘RÊVER’ display sufficient visual, aural and conceptual differences. Consequently, the opponent’s argument must be dismissed. The public is not likely to associate the marks and confuse the commercial origin of the goods.

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. In the present case the applicant did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.

The Opposition Division

María del Carmen SUCH SÁNCHEZ

Vít MAHELKA

Lucinda CARNEY

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.