(Trade mark without text) | Decision 2682030 - The Procter & Gamble Company v. Mantz airmotions GmbH & Co. KG
Date Published: Oct 1, 2017
OPPOSITION No B 2 682 030
The Procter & Gamble Company, One Procter & Gamble Plaza, Cincinnati, Ohio 45202, United States (opponent), represented by Danièle Le Carval, Procter & Gamble France S.A.S., 163/165 quai Aulagnier, 92600 Asnières-sur-Seine, France (employee representative)
a g a i n s t
Mantz airmotions GmbH & Co. KG, Hacketäuerstr. 4, 42651 Solingen, Germany (applicant), represented by Lippert Stachow Patentanwälte Rechtsanwälte Partnerschaft mbB, Frankenforster Str. 135-137, 51427 Bergisch Gladbach, Germany (professional representative).
On 01/06/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 682 030 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 of European Union trade mark application No 15 098 262, namely against all goods in Class 3 and some of the goods in Class 5. The opposition is based on European Union trade mark registration No 12 249 975. 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 3: Washing preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; preparations for the care, treatment and beautification of fabrics; fabric softeners, fabric enhancers.
The contested goods are the following:
Class 3: Room fragrancing preparations; essential oils, potpourris (fragrances); scented oils; room scenting sprays; preparations for perfuming or fragrancing the air; fragrance sticks; scented beads; scented sachets; deodorants for pets; fragrant rinses, in particular fragrant rinses for toilets.
Class 5: Deodorising preparations, other than for personal use, in particular for use with laundry dryers, furniture, textile goods, footwear.
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.
An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods.
The term ‘in particular’, used in the opponent’s list of goods, indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (see the judgment of 09/04/2003, T-224/01, Nu-Tride, EU:T:2003:107).
Contested goods in Classes 3 and 5
The contested room fragrancing preparations; essential oils, potpourris (fragrances); scented oils; room scenting sprays; preparations for perfuming or fragrancing the air; fragrance sticks; scented beads; scented sachets; deodorants for pets; fragrant rinses, in particular fragrant rinses for toilets in Class 3 and deodorising preparations, other than for personal use, in particular for use with laundry dryers furniture, textile goods, footwear in Class 5 are used to give a pleasant scent or to remove odours. All of these contested goods and the opponent’s cleaning preparations in Class 3 have similar purposes, since the opponent’s goods also remove unpleasant odours. To that extent, these goods have similar natures and purposes. Furthermore, they target the same consumers and are sold in the same retail outlets and in the same section in supermarkets. Therefore, these goods are considered 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 similar are directed at the public at large. The degree of attention is considered average.
- The signs
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 signs are purely figurative signs with no verbal elements. Both trade marks consist exclusively of a depiction of a flower. The earlier trade mark is black and white, while the contested sign is grey and white.
The figurative element depicting a flower in both signs will be associated with ‘a good smell of flower’. Bearing in mind that the conflicting goods have the same purpose, which is to create a pleasant scent or to remove odours, an element consisting of a flower has a weak distinctive character for these goods.
Figurative elements depicting a flower are often used as a symbol for a particular type of fragrance. In connection with goods in Class 3, therefore, the depiction of a flower has weak distinctive character because it gives a clear indication of one of their characteristics, that is, their natural origin, their components or their smell. Therefore, the earlier trade mark has weak distinctive character in relation to the goods in Class 3.
Visually, the signs coincide in their roughly circular shape and in that they both consist of a flower. However, the visual impressions created by the signs are quite different, even without a closer look, since they differ in their graphical depictions; the earlier sign seems to be drawn in a single line, while the contested sign is a much more sophisticated drawing resulting in a quite realistic image of a rose seen from above. Moreover, the earlier mark is in black and white, while the contested sign is in grey and white.
Taking all the above into account, the signs are visually similar to a very low degree.
Purely figurative signs are not subject to a phonetic assessment. As both signs are purely figurative, it is not possible to compare them aurally.
Conceptually, reference is made to the previous assertions concerning the meaning conveyed by the marks.
Therefore, as the signs will be associated with the meaning of a flower, which is, however, weak in the context of the goods, the signs are conceptually similar to a low degree.
- 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. 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 of the goods in question.
- Global assessment, other arguments and conclusion
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).
Account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).
In the present case, the goods are similar and the degree of attention is considered average.
The signs are visually similar to a very low degree and conceptually similar to a low degree only to the extent that they both consist of a depiction of a flower, which has a weak distinctive character. In addition, as described above in section c), the signs are depicted differently.
In the absence of any aural similarity, it can be safely excluded that the very low degree of visual similarity between the signs would lead the relevant consumer to make a connection between them. Furthermore, it can also be safely excluded that the relevant consumer would assume that the goods in question were from the same undertaking or economically linked undertakings. Nor would the relevant consumer perceive the contested mark as a sub-brand or variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T-104/01, Fifties, EU:T:2002:262, § 49).
Considering all the above, even for similar goods, 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
Dorothee SCHLIEPHAKE | Patricia LOPEZ FERNANDEZ DE CORRES | Marianna KONDAS |
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.