(Trade mark without text) | Decision 2702382
Date Published: Sep 24, 2017
OPPOSITION No B 2 702 382
Famidan SL, Carretera De Tariquejos, Km 0,6, 21450 Cartaya, Spain (opponent), represented by Newpatent, Puerto 34, 21001 Huelva, Spain (professional representative)
a g a i n s t
Fjords Processing AS, Snarøyveien 36, 1364 Fornebu, 1327 Lysaker, Norway (holder), represented by Novagraaf Nederland B.V., Hoogoorddreef 5, 1101 BA Amsterdam, The Netherlands (professional representative).
On 22/09/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 702 382 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 international registration designating the European Union No 1 260 430 , namely against all the goods and services in Classes 11, 37 and 42. The opposition is based on European Union trade mark registration No 10 908 151 , and European Union trade mark registration No 10 908 192 . 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 and services
The goods and services on which the opposition is based are the following:
EUTM No 10 908 151
Class 11: Automatic watering installations for use in agriculture, automatic watering installations for flowers and plants, automatic watering devices other than machines, automatic watering installations for use on golf courses, automatic watering installations for use in gardening, automatic watering installations for horticultural purposes, spraying installations for the automatic watering of fields, sprayers for automatic watering installations, automatic installations for watering plants, drip irrigation emitters (irrigation fittings), watering machines for agricultural use, automatic watering devices.
Class 37: Installation of automatic watering installations for use in agriculture, automatic watering installations for flowers and plants, automatic watering devices other than machines, automatic watering installations for use on golf courses, automatic watering installations for use in gardening, automatic watering installations for horticultural purposes, spraying installations for the automatic watering of fields, sprayers for automatic watering installations, automatic installations for watering plants, drip irrigation emitters (irrigation fittings), watering machines for agricultural use, automatic watering devices.
Class 42: Architecture, Construction drafting, Architectural consultation, Consultancy in relation to environmental protection, Industrial design, Technical project studies, Engineering, Surveying, Technical research, Surveying, land surveying, Services of construction engineers, Development of construction projects.
EUTM No 10 908 192
Class 11: Automatic watering installations for use in agriculture, automatic watering installations automatic watering devices other than machines, automatic watering installations for use in gardening, spraying installations for the automatic watering of fields, sprayers for automatic watering installations, automatic installations for watering plants, drip irrigation emitters (irrigation fittings), watering machines for agricultural use, automatic watering devices.
Class 35: Advertising; Business management; Business administration; Office functions; Retailing and wholesaling in shops and via global computer networks of automatic watering installations for use in agriculture, automatic watering devices other than machines, automatic watering installations for horticultural purposes, spraying installations for the automatic watering of fields, sprayers for automatic watering installations, automatic installations for watering plants, drip irrigation emitters (irrigation fittings), watering machines for agricultural use, automatic watering devices.
Class 37: Installation of automatic watering installations for use in agriculture, automatic watering devices other than machines, spraying installations for the automatic watering of fields, sprayers for automatic watering installations, automatic installations for watering plants, drip irrigation emitters (irrigation fittings), watering machines for agricultural use, automatic watering devices.
The contested goods and services are the following:
Class 11: Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes; apparatus and installations for the separation and treatment of liquids, gases and solids; parts, fittings and accessories for all the aforesaid goods; all for use in the field of oil and gas production.
Class 37: Building construction; repair (services) of oil and gas processing installations, machines and apparatus for separation and treatment of liquids, gases and solids, cyclones, and their parts, fittings and accessories; installation services in relation to of oil and gas processing installations, machines and apparatus for separation and treatment of liquids, gases and solids, cyclones, and their parts, fittings and accessories; maintenance services in relation to apparatus for separation and treatment of liquids, gases and solids, cyclones, and their parts, fittings and accessories; all for use in the field of oil and gas production.
Class 42: Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software; scientific and technological services and research and design relating thereto; engineering services; software maintenance, installation and development services in relation to the separation and treatment of liquids, gases and solids; all the aforementioned services for use in the field of oil and gas production.
It is clear that some of the contested goods and services are similar to the goods and services on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above. The examination of the opposition will proceed as if all the contested goods and services were similar 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 and services assumed to be similar are directed at customers with specific professional knowledge or expertise.
The degree of attention ranges from average to higher than average due to the specific and technological nature of the goods and services.
- The signs
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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 signs are figurative marks.
The earlier signs both contain a word element with no meaning and a device element resembling a stylised image of and outline of two drops of liquid. In the mark a) the drops are made up of thick lines. A small green outline of a drop is on the left and a larger blue outlined drop is on the right, partially on top of the smaller drop. The outline of the smaller drop is not complete. Both tips are at the same line. The same applies to mark b), where the drops are of the same size.
The device elements resembling drops of liquid sign will be associated with that concept. Bearing in mind that the goods include goods related to handling of liquids and the services include services related to handling of liquids these elements are weak for all of the goods and services of the earlier marks.
The verbal elements in both earlier marks have no relation to any of the goods and services and are considered to be distinctive.
The earlier marks have no elements that are more dominant than other elements.
The contested sign contains only a device element of a stylised image of two drops of liquid. The large drop of liquid is in blue. On its right, a smaller drop, partially white, partially green is placed on top of the larger blue drop. The outline of both drops is visible.
The drop like images in this sign will be associated with such a meaning. Bearing in mind that the relevant goods and services are all for use in the field of oil and gas production, it is considered that the mark is weak for all these mentioned goods and services.
The mark has no element that is more dominant than other elements.
When signs consist of both verbal and figurative components, such as the earlier marks, then in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37).
Visually, the signs coincide only in that they all contain a drop like images, pointing upwards. However, they differ in that the earlier marks contain both a word element. The drop-like images are different. In the earlier marks, they are formed only of a partial outline, having a white centre contrary to those of the contested mark. The colours are different. The placement of drops is different in all marks. The size of drops is different. Furthermore, it has to be taken into account, that the coinciding drops have been found weak for the goods and services in question.
Therefore, the signs are visually dissimilar.
Aurally, it is not possible to compare the signs as the contested mark is purely figurative. Purely figurative signs are not subject to a phonetic assessment.
Conceptually, the signs are conceptually similar to a low degree due to the fact that they coincide in the concept of drops of liquid (considering what has been said above about the distinctiveness of the marks).
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 marks
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 are 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 and services 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 weak elements in the marks as stated above in section c) of this decision.
- Global assessment, other arguments and conclusion
The contested goods and services have been assumed similar, and the level of attention ranges from average to higher. The visual, aural and conceptual aspects of the marks have been discussed above.
Despite the mentioned degree of conceptual similarity between the two signs, confined in part to the weak elements, the impact of the marks is substantially different. In fact, the shapes of all the individual elements, their orientation, colours, size and placement, as well as their overall configuration give a very different visual impression. Furthermore, both of the earlier marks contain a distinctive and memorable word element, which is used when referring to each sign, creating further differences. As mentioned, when signs consist of both verbal and figurative components, such as the earlier marks, then in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component, as is the case here.
The marks create different impressions as a result of the clear differences listed above. The differences between the marks are sufficiently strong to allow the relevant public, irrespective of their level of attention, to distinguish between them bearing also in mind that the common elements are of limited distinctiveness and are also not the dominant elements of the signs.
Considering all the above, even assuming that the goods and services are similar, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.
The Opposition Division notes that the opponent also claims that the contested trade mark application should be rejected based on absolute grounds of refusal (Article 7 EUTMR). However, this cannot be a basis for the opposition. Article 41 EUTMR states that an opposition can only be filed on the grounds set forth in Article 8 EUTMR. Since this Article does not include absolute grounds as a ground for opposition, this claim of the opponent is 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 holder 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 holder are the costs of representation which are to be fixed on the basis of the maximum rate set therein.
The Opposition Division
Zuzanna STOJKOWICZ | Erkki MÜNTER | Irina SOTIROVA |
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.