The opponent Productos Kol, S.L., Spain filed an opposition at the Office for Harmonization in the Internal Market against some of the goods of Community trade mark application No 12 136 057, namely against all goods in Classes 20 and 24. The applicant Gloube Industries EOOD, Bulgaria is represented by IP Consulting Ltd.
The opposition is based on, inter alia, Spanish trade mark registrations No 2 363 242 and No 1 686 806 and on international trade mark registration No 613 438. The opponent invoked Article 8(1)(b) CTMR. On its observations, the opponent expressly withdrew its international trade mark registration No 613 438 as a basis of the opposition.
Proof of use
The evidence filed by the opponent does not show genuine use of the earlier trade marks for all the goods covered by them. In the present case, the evidence shows genuine use of the trade marks for the following goods: Class 24: Pillowcases (pillow slips); Class 20: Pillows.
Likelihood of confusion
Contested goods in Class 20
The contested pillows are identically contained in both lists of goods in relation to the earlier trade mark No 1 686 806.
Bolster, air pillows, not for medical purposes, bedding, except linen are considered identical to the opponent’s goods.
Cushion; air cushions, not for medical purposes; pet cushions are similar to a high degree to the opponent’s pillows.
Hospital beds; water beds, not for medical purposes; mattresses; beds; beds for household pets; air mattresses, not for medical purposes; spring mattresses; straw mattress; furniture; furniture of metal; bedsteads of wood are similar to the opponent’s pillows.
The remaining contested goods are different to pillows (Class 20) and pillowcases (Class 24) protected by the earlier marks. Therefore, these goods are dissimilar.
Contested goods in Class 24
The contested pillowcases (listed twice) are identically contained in both lists of goods of earlier Spanish mark No 2 363 242.
Textile goods, not included in other classes; bed linen (listed twice); household linen are considered identical to the opponent’s goods.
Covers for cushions are similar to a high degree to the opponent’s pillowcases.
Bed covers; mattress covers; bed blankets; ticks [mattress covers]; bed covers of paper; eiderdowns [down coverlets]\ travelling rugs [lap robes]; sleeping bags [sheeting]; sheets [textile]; furniture coverings of textile; loose covers for furniture; quilts consists of a variety of bedclothes or textile coverings and therefore similar to the opponent’s pillowcases.
The remaining contested goods are considered dissimilar.
The signs
Visually, the signs are similar to the extent that they coincide in the elements ‘body care’. However, they differ in the term ‘BUTTERFLY’ included in the earlier marks, in the colours of the contested sign and in the figurative elements contained in both signs, respectively. The pronunciation differs in the sound of the letters ‘BUTTERFLY’ of the earlier sign which has no counterpart in the contested mark. Conceptually, for those consumers that will perceive the element ‘BODY’ in both signs, the marks are conceptually similar. For the remaining of the Spanish consumers who will perceive the feature of the butterfly of the earlier signs but will not attribute any meaning to the contested mark, the signs are not conceptually similar.
The marks under comparison have no elements which could be considered clearly more distinctive or more dominant than other elements.
Distinctiveness of the earlier marks
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.
Relevant public – degree of attention
In the present case, the goods found to be identical or similar to various degrees are directed at the public at large whose level of attention will be average.
Considering all the above, the Opposition Division took the following
DECISION:
- Opposition No B 2 327 032 is partially upheld, namely for the following contested goods: Class 20: Class 24:
- Community trade mark application No 12 136 057 may proceed for the remaining goods.
- Each party bears its own costs.
