OFFICE FOR HARMONIZATION IN THE INTERNAL

MARKET
(TRADE MARKS AND DESIGNS)
The Boards of Appeal

DECISION
of the Fourth Board of Appeal
of 15 July 2010

In Case R 994/2009-4

Ventus - Česko s.r.o.

17. listopadu 237
CZ-530 02 Pardubice
Czech Republic Applicant / Appellant

represented by Daněk & Partners, Vinohradská 45, CZ 120 00 Praha 2, Czech

Republic

Vendus Sales & Communications Group GmbH

Mörsenbroicher Weg 200
D-40470 Düsseldorf
Germany Opponent / Respondent

represented by Gobbers & Denk, Niederkasseler Lohweg 18, D-40547 Düsseldorf,

Germany

APPEAL relating to Opposition Proceedings No B 1 278 391 (Community trade mark

application No 5 785 688)

THE FOURTH BOARD OF APPEAL

composed of D. Schennen (Chairperson), F. López de Rego (Rapporteur) and A.

Szanyi Felkl (Member)

Registrar: C. Bartos

gives the following

Language of the case: English

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Decision

Summary of the facts

1 By an application filed on 26 March 2007, Ventus- Česko s.r.o. (‘the appellant’)

sought to register the figurative mark

for several services in classes 35, 36, 37, 39 and 43. In the course of the
proceedings the appellant divided its application and the resulting CTM
application is only for the following services in Class 35:
Class 35 - Business management, business and industrial management assistance, business
management and business consultancy, economic forecasting, relocation services for
businesses, marketing studies, analysis of purchase and wholesale prices, opinion
polling, statistical information, public relations, accounting, auditing, cost price
analysis, business appraisals, drawing up of statements of accounts, auctioneering,
human resources consultancy, efficiency experts, personnel recruitment,
psychological testing for the selection of personnel, tax preparation, payroll
preparation, employment agencies, advertising agencies and advertising, including
online advertising on the Internet, radio advertising, television commercials, rental of
advertising time on communications media, organisation of exhibitions or trade fairs
for commercial or advertising purposes, updating and rental of advertising material
and advertising space, advertising by mail order, demonstration of goods, modelling
for advertising or sales promotion, direct mail advertising, outdoor advertising,
dissemination of recruitment or advertising texts, bill-posting, shop window dressing,
business management of performing artists, business management of hotels, import-
export agencies, secretarial services, forwarding of telephone messages and
enquiries, shorthand, transcription, word processing, compilation and systematisation
of information in computer databases, computerised file mangement, data searches in
computer files, document reproduction, photocopying, arranging newspaper and
magazine subscriptions, rental of vending machines, procurement services for others,
purchase orders (administration).

2 On 28 January 2008, the respondent, Vendus Sales & Communications Group

GmbH, filed a notice of opposition against said application on the basis of the
following earlier rights:

- German figurative trade mark No 30 658 285.6

filed on 19 September 2006 and registered on 15 August 2007 for the

following goods and services in classes 16, 35, 38, 41, 42 and 44:

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Class 16 – Stationery; office requisites (except furniture); photographs; paper, cardboard and
goods made from these materials, if included in class 16; printed matter; book
binding material; adhesives for stationery or household purposes; instructional and
teaching material (except apparatus); plastic material for packaging, if included in
class 16; printers’ type; printing blocks.

Class 35 - Advertising; marketing; market research, management; personnel management

consultancy; business administration and consultancy; professional business
consultancy services and organisational consultancy services; office work, compiling
statistics; organising auctions and public sales; investigation in business matters;
personnel consultancy, i.e. placement of personnel; supply of temporary workers;
supply of temporary executives; search and selection of executives and other
personnel; organisational consultancy in questions of selecting locations for medical
service centres; distribution of goods for advertising purposes; reproduction of
documents; mediation of advertising; advertising on the radio, on television and in
films; leasing of office machines, organisation of trade fairs for commercial purposes
and advertising purposes; invoicing of services in the field of health care;
procurement of contracts for third parties to obtain and sell goods: procurement of
commercial transactions for others; electronic mediation of electronic trading for
third parties; rental of advertising space in radio, television, video film and film
programmes; collection of market research data and subject-related articles in the
press as well as collection of data in computer data bases.

Class 38 - Telecommunication in particular supply and provision and operation of

telecommunication networks and technical supply of an on-line shop i.e. platforms
and portals on the internet; provision of services connected with online services i.e.
electronic transmission of all kinds of messages and information as well as services
of an online provider i.e. provision of access to information, texts, drawings, images,
news and data on the internet; leasing of telecommunication facilities; collection and
delivery of news and information in the form of images and texts and sound within
the context of the services of a media and press agency.

Class 41 - Leasing of radio, television and video equipment, and printed matter and magazines;
EDP training; organisation of seminars; further training; training, education,
teaching; radio, television, video and film productions; rental of radio, television,
video and films; radio, television, video and film presentations; publication and
editing of books, magazines, newspapers and other publications (except for
advertising purposes), also in radio, television, video and film programmes and also
in electronic form via data bases and online services; mediation of artists and
sportspersons; events of sporting and cultural activities; reporter services thereof
using radio, television, video or film; provision of electronic publications (not for
downloading), except for advertising purposes; personnel consultancy with a view to
training and further training; rental of equipment for electronic media, i.e. beamers,
audio systems, projectors, DVD and video technology.

Class 42 - Technical advice, coordination and provision of internet and intranet services, i.e.
creating homepages, i.e. electronic storage of data for third parties; services of an
architect, engineer and designer as well as designing rooms taking into account
medical and psychological aspects; quality control in the field of health care;
administration of trademark rights and licenses; rental of equipment for electronic
media i.e. laptops.

Class 44 - Medical and veterinary services; health and beauty care for humans and animals;
services in agriculture, forestry and gardening; services of a sports psychologist;
services of a landscape architect, taking into account medical and psychological
aspects; services of a release therapist; services of a psychologist, psychotherapist
and physiotherapist; services of a speech therapist.

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- Earlier company name used in the course of trade in Germany

for the following services:

Advertising; marketing; market research; management; personnel management consultancy;

business administration and consultancy; purchase and administration of business
participations; professional business consultancy services and organizational consultancy
services; office work; compiling statistics; organizing auctions and pubic sales; investigation
In business matters; personnel consultancy i.e. placement of personnel; supply of temporary
workers; supply of temporary executives; search and selection of executives and other
personnel; organizational consultancy in questions of selecting locations for medical service
centres; distribution of goods for advertising purposes; reproduction of documents; mediation
of advertising; advertising on the radio, on television and in films; leasing of office machines;
organization of trade fairs for commercial purposes and advertising purposes; invoicing of
services in the field of health care; procurement of contracts for third parties to obtain and sell
goods; procurement of commercial transactions for others; electronic mediation of electronic
trading for third parties; rental of advertising space in radio, television, video film and film
programmes; collection of market research data and subject related articles in the press as well
as collection of data in computer data bases.

- Earlier company name used in the course of trade in Germany VENDUS

SALES & COMMUNICATION GROUP for the same services just listed.

3 The opposition was based on all the services for which the earlier mark is
registered and is directed against all the services of the Community trade mark
application in class 35.

4 The grounds of the opposition are those laid down in Article 8(1)(b) and 8(4) of
Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community
trade mark, OJ L 78, 24 March 2009, p. 1, codified version of Council Regulation
(EC) No 40/94 of 20 December 1993 on the Community trade mark (‘CTMR’).

5 By decision of 25 June 2009 (‘the contested decision’), the Opposition Division

upheld the opposition partially, as there was a likelihood of confusion in the
relevant territory in respect of all the contested services, except for rental of
vending machines, and ordered each party to bear their own costs. The
Opposition Division based its decision on the following grounds:

- The Office considers it adequate to start the examination with the earlier trade
mark DE No 30 658 285.6.

- The contested services in class 35 are partially identical and partially highly
similar to those for which the earlier mark is registered. As to rental of
vending machines there exists only a small degree of similarity with the
services of the earlier mark leasing of office machines in Class 35 as well as
rental of equipment for electronic media, i.e. beamers, audio systems,
projectors, DVD and video technology leasing of radio, television and video
equipment in class 41, rental of equipment for electronic media i.e. laptops in
class 42.

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- There exists some visual similarity between the signs to the extent that both of
the visually prominent verbal elements “VENDUS” and “VENTUS” are
shaped of six letters, five of which are identical and in the same order.

- Aurally, the signs have nearly an identical pronunciation with regard to the
elements “VENDUS” and “VENTUS”, since the difference among them
appears in the middle and is not very audible. The elements of the earlier mark
“sales & communication group” have no counterpart in the contested
application. However, it is possible that the earlier mark would be only
referred by its most outstanding element “VENDUS”. As a consequence, the
marks are found to be highly similar from the phonetic side.

- Conceptually, neither of the confronted signs has a meaning in German. The

element of the earlier mark “sales & communication group” is composed of
basic English terms and will be understood by a substantial part of the German
public, because a considerable proportion of the German public has a
command of the English language.

- The services have been found to be partially identical and highly similar and
partially lowly similar. Phonetically, the words “vendus” and “VENTUS” are
highly similar in German and there is no concept. The argument of the
applicant that the verbal element “vendus” will be linked to “SELL” because the
earlier mark’s stem “vend” refers to the verb “to sell” in Spanish, Italian and
French, and also, that the later trade mark application refers to the Latin word
“ventus” meaning “wind” is not quite realistic as the conceptual impression
created by the words “vendus” and “ventus” is assessed in totality, without
dissecting the words into their Latin stems, roots and endings. Moreover, the
German words for “sell” and “wind” (“verkaufen” and “Wind”) are quite
different from the Latin counterparts. Thus, it is considered that the majority of
the respective German public will perceive “vendus” and “ventus” as
meaningless fancy words.

- The additional elements in the contested application “sales & communication

group” are written in a much smaller script and, moreover, generally, consumers
usually remember the predominant word element of the sign that enables them to
make a subsequent purchase. These additional elements, because of its
descriptive nature, do not introduce a relevant conceptual difference between the
marks.

- In view of all the circumstances, there would be likelihood of confusion as to the

services which were found either identical or highly similar to those of the earlier
mark. To the contrary, the slight degree of similarity between rental of vending
machines and the opposing services is insufficient to create in the consumer’s
mind a likelihood of confusion.

- As to the earlier signs used in the course of trade the opponent has not shown
actual use of them. Consequently, this ground is to be rejected as
unsubstantiated.

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Submissions and arguments of the parties

6 On 25 August 2009, the appellant filed a notice of appeal against the contested
decision and also submitted the statement of grounds of appeal.

7 The appellant’s arguments can be summarized as follows:

- The Opposition Division only briefly and superficially assessed the question
concerning the conceptual difference between both marks by merely indicating
that neither of the words “VENDUS” or “VENTUS” have any meaning in
German language.

It is argued that the concept of both words is well predictable. The respondent’s
mark targets as consumers major companies in the field of healthcare whose
experience in this business is considerable. This public speaks English quite
well and is also very familiar with the significance of the word “vend”. Use of
Latin in the field of medicine is undeniable. The selection of this word at the
beginning of the respondent’s mark is not incidental but is carefully chosen and
is aimed to give the public a sensation of the relation with its field of business.

- Contrary to the statements in the contested decision, office work, collection of

market research data as well as collection of data in computer data bases of
the earlier mark are not highly similar to compilation and systematization of
information in computer database of the application. Compilation and
systematization requires skills which cannot be expected from the entity which
commonly executes the office works.

Therefore, it is considered that the Opposition Division did not investigate the
similarity closely enough to see the differences between the various items on
the list. Management of the earlier mark does not reflect which area of business
is covered, thus, even though the respondent is operating in a different scope of
business and has completely different customers, it cannot use the specified
term because the contested decision considers business management of hotels
identical to management.

8 The respondent requests to uphold the contested decision because there is a

likelihood of confusion in the relevant territory. The grounds adduced are the
following:

- The alleged differences cited by the appellant in relation to the services in

dispute are to be disregarded: ‘collection of data in computer data bases’ is
similar to ‘compilation and systematisation of information in computer
databases’.

- The Opposition Division had to compare the services ‘management’ and

‘management of hotels’ and ‘business management of performing artists’ with
respect to similarity and had to neglect the actual signs in dispute.
‘Management of hotels’ and ‘business management of performing artists’ are
merely kind of management. These services are encompassed by the broader

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term ‘management’. Thus, similarity of the services is obviously given.

- On the conceptual side, German is not derived from Latin, which is not in
general use in Germany. The elements “VENDUS” and “VENTUS” are
perceived as fancy terms by the average German consumer. The target
consumers (consumers of advertising, management and marketing services)
have no great command of Latin but mostly use English in addition to
German.

Reasons

9 The appeal is not well-founded because there is likelihood of confusion on the

part of the public (Article 8(1)(b) CTMR) with the earlier mark, in respect of the
identical or highly similar services for which the opposition was upheld.

10 As the Opposition Division, the Board will start with the comparison of the
contested application with the German trade mark registration No 30 658 285.6
(judgment of the Court of First Instance of 16 September 2004 in Case T-342/02
Metro-Goldwyn-Mayer Lion Corp. v Office for Harmonization in the Internal
Market (Trade Marks and Designs) (OHIM) (‘MGM’), [2004] ECR II-3191, at
paragraphs 34 to 36 and 48).

11 Under Article 8(1)(b) CTMR, the trade mark applied for is not to be registered ‘if
because of its identity with or similarity to the earlier trade mark and the identity
or similarity of the goods or services covered by the trade marks there exists a
likelihood of confusion on the part of the public in the territory in which the
earlier trade mark is protected; the likelihood of confusion includes the likelihood
of association with the earlier trade mark’.

12 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. According to the same line of case-law, the likelihood of confusion
must be assessed globally, according to the perception which the relevant public
has of the goods or services in question, taking into account all factors relevant to
the circumstances of the case, in particular the interdependence between the
similarity of the signs and that of the goods or services designated.

Comparison of the conflicting services

13 According to settled case-law, in order to assess the similarity of goods or

services, all the relevant features of the relationship which could exist between
them should be taken into account. Those factors include, in particular, their
nature, their intended purpose, their method of use and whether they are in
competition with each other or are complementary (see judgment of the Court of
First Instance of 18 October 2007 in Case T-425/03 AMS Advanced Medical
Services GmbH v OHIM (‘AMS Advanced Medical Services’), at paragraph 53).

14 The Board notes that the appellant challenges the comparison of services made in
the contested decision only in relation to some of the services for which high

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similarity or identity was established, namely on the one hand, compilation and
systematization of information in computer data bases and data searches in
computer files, and on the other hand, business management of hotels and
business management of performing artists.

15 The earlier German mark is registered, among other services, for management in
general, consequently, the comparison with the services of the contested
application is to be carried out with the wording of the mark as registered. Thus,
the Board coincides with the position of the Opposition Division that the
contested services business management, business management of performing
artists, business management of hotels are covered by the opposing broad terms
management; business administration and consultancy. “Management” of the
earlier mark is listed alone, therefore referring to management in any field. There
is not a single mention that this managerial activity is to be focused in the
healthcare sector. Consequently, since the appellant did not have a legal
possibility of requesting the respondent to show evidence of genuine use of the
earlier mark in this case, the wording of the earlier mark is to be compared with
the one of the contested application as it appears in the registry. As a
consequence of this, the documents aimed at proving that the scope of business of
the respondent lies within the healthcare sector are irrelevant.

16 Business management of the contested application comprises the act of getting

people together to accomplish a desired goal and objectives. This term is
synonymous with “business administration” of the earlier mark. As a
consequence of this, this latter broad term would also comprise any
‘administrative’ or ‘managerial’ activity directed to the achievement of certain
objectives in a particular ‘business’, in any sector, or in relation to the activities
of a ‘performing artist” or of hotels.

17 As to the contested services compilation and systematization of information in the

computer databases and data searches in computer files, the Board considers
that, contrary to the statement of the appellant, they are indeed similar (if not
identical) to the services of the earlier mark office work and collection of data in
computer data bases. “Compiling” is putting together (documents or other
materials) in one book or work while “collecting” is to gather together or
assemble. Therefore, it is concluded that to compile information is synonymous
of collecting information (or data). As to the contested services systematization of
information in the computer databases, these services are very similar to those of
the earlier mark collection of data in a computer database because this activity is
the same although in the first one, data is stored following a certain system or
rationale.

18 The remaining applicant’s services are all identically covered by the respective
broad terms of the earlier mark such as ‘advertising’ and ‘business
administration’ and ‘consultancy’ as correctly laid out by the contested decision
in detail and not contested by the applicant. As a consequence of this, and
considering the remission made to the contested decision in paragraph 15 of the
current appeal, it is concluded that all the services of the application under appeal
are identical or highly similar to those of the earlier mark on which the opposition
was based.

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Comparison of the signs

19 The global appreciation of the likelihood of confusion must, as regards the visual,
aural or conceptual similarity of the marks in question, be based on the overall
impression created by them, bearing in mind, in particular, their distinctive and
dominant components (see judgment of the Court of Justice of
11 November 1997 in Case C-251/95 Sabèl BV v Puma AG, Rudolf Dassler
Sport (‘Sabèl’), [1997] ECR I-6191, at paragraph 23, and of 22 June 1999 in
Case C-342/97 Lloyd Schuhfabrik Meyer & Co. GmbH v Klijsen Handel BV
(‘Lloyd Schuhfabrik’), [1999] ECR I-3819, at paragraph 25).

20 In the present case, the conflicting signs to be compared are the following:

Earlier German trade mark Contested CTMA

21 “VENDUS” and “VENTUS” have a very similar rhythm and intonation, are of
equal length in letters and syllables and give a very similar overall impression.

22 The expression “sales & communication group” will be understood by most

German consumers since it is composed of basic English terms and German
speakers have at least a basic command of English. In any event, the appearance
of this legend at the bottom of the earlier mark, in a quite small letter size, will be
seen as describing the kind of activities offered by the owner of the earlier mark.

23 The Board also coincides with the conceptual comparison made by the
Opposition Division. “VENDUS” and “VENTUS” will be perceived by the
relevant German consumer (irrespectively o whether the public is average or
specialized) as fancy terms without any particular semantic content. “VENDUS”
has no meaning whatsoever in German and, moreover, the root “VEND-” is not
commonly used in German, or even in English, to designate or refer to ‘sales’.

24 The appellant’s claim that the relevant German consumer will perceive the Latin
root ‘vend-” in the earlier mark as referring to “sales” because the target public of
the respondent are companies active in the healthcare sector, is mistaken, as we
have to take into consideration the services of the earlier mark as registered and it
is clear that they are not specifically addressed to companies in the field of
healthcare.

25 Latin is not commonly used in Germany. The German term for identifying the
concept of ‘sales’ or any other word relating to this is the word “Verkauf(-en)”. It
is therefore confirmed that the term “VENDUS” would not be perceived by the

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German relevant consumer as denoting any particular concept but as a purely

meaningless word.

26 The same considerations can be applied to the element “VENTUS” of the

contested application. German consumers will not identify this term with any
particular concept. The Latin term referring to ‘wind’ would not be immediately
and directly perceived by the relevant consumer in the context of the services
applied for.

27 As a consequence of all the above, the Board coincides with the findings of the
Opposition Division that the most outstanding elements of the signs at issue,
VENTUS and VENDUS, will be perceived as completely invented terms.

28 It follows that the marks are highly similar visually and phonetically and that a
conceptual comparison cannot be made.

Assessment of the likelihood of confusion

29 The likelihood of confusion on the part of the public must be appreciated

globally, taking into account all factors relevant to the circumstances of the case
and the global assessment of the likelihood of confusion implies some
interdependence between the relevant factors, and in particular a similarity
between the trade marks and between these goods or services (‘Canon’, loc. cit.,
at paragraph 17 et seq.). Accordingly, a lesser degree of similarity between these
goods or services may be offset by a greater degree of similarity between the
marks, and vice versa. Furthermore, the more distinctive the earlier mark, the
greater the risk of confusion. Trade marks with a highly distinctive character,
either per se or because of the reputation they possess on the market, enjoy
broader protection than marks with a less distinctive character (see judgment of
29 September 1998 in Case C-39/97 Canon Kabushiki Kaisha v Metro-Goldwyn-
Mayer, Inc., formerly Pathe Communications Corporation (‘Canon’) [1998]
ECR I-5507, at paragraphs 17 et seq.).

30 Thus, the average consumer normally perceives a mark as a whole and does not
proceed to analyse its various details (‘Sabèl’, loc. cit., at paragraph 23), and it is
in general the dominant and distinctive characteristics of a sign that are more
easily remembered. There is a significant visual and aural similarity between the
most dominant and distinctive components of the marks at issue, which means
that these are globally very similar trade marks.

31 Taking account of the fact that the most eye-catching and distinctive component
of the earlier trade mark (VENDUS) has no connection whatsoever with the
services in respect of which said trade mark is registered, the distinctive character
of the earlier trade mark is, at least, average.

32 In the context of the global assessment of the likelihood of confusion it should be

pointed out that, because the average consumer retains only an imperfect image
of the marks, the predominant component of the marks in question is of major
importance. Thus, the dominant component of both marks, “VENDUS” and
“VENTUS” respectively, is of major importance when analyzing the signs as a

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whole because the average consumer looking at the services takes in and
remembers the predominant word element of the sign, which enables him or her
to make the same choice on the occasion of a subsequent purchase (see, by
analogy, judgment of the General Court of 23 October 2002 in Case T-104/01
Claudia Oberhauser v OHIM (‘Fifties’) [2002] ECR II-4359, at paragraph 47).

33 It has been considered that the marks in dispute are visually and phonetically
similar to a high degree, as they contain the very similar elements ‘VENDUS”
and “VENTUS” in the initial position. The additional elements of the confronted
signs do not dominate the overall impression. Conceptually, the result of the
comparison is neutral since none of the dominant VENTUS / VENDUS elements
have a particular meaning in the relevant territory. As to the comparison of the
services for which the appeal was filed, it was found that most of them are
identical to those of the earlier mark and others are highly similar.

34 In an overall assessment of all the relevant factors, it is concluded that a

likelihood of confusion will arise on the part of the German public in relation to
the contested services in class 35 for which the opposition was upheld.

35 As regards the other earlier rights on which the opposition was based, as the
appeal filed has been fully dismissed on the basis of the evaluation of likelihood
of confusion in relation to the earlier German trade mark, there is no need to
examine such other earlier rights (see ‘MGM’, at paragraphs 34 to 36 and 48).

36 In view of the above, the contested decision is to be confirmed.

Costs

37 Since the appellant is the losing party, it must bear the fees and representation
costs of the appeal proceedings pursuant to Articles 85(1) and (6) CTMR. The
contested decision rightly ordered that each party bear its own costs of the
opposition procedure.

Fixing of costs

38 Pursuant to Article 85(6) CTMR in conjunction with Rule 94 (3) IR as amended

with effect of 25 July 2005, the decision of the Board of Appeal shall, where
applicable, include the fixing of the amount of the costs to be paid by the losing
party. Pursuant to Rule 94 (7) (d) (vi) IR, the amount of the representation costs
for the appeal proceedings to be paid by the losing appellant to the respondent
shall be fixed at the standard rate of 550 EUR.

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Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Orders the appellant to bear the costs of the respondent in the appeal
proceedings;
3. Fixes the total amount of costs to be paid by the appellant to the
respondent at EUR 550.

D. Schennen F. López de Rego A. Szanyi Felkl

Registrar:

C. Bartos

DECISION OF 15 JULY 2010 – R 994/2009-4 VENTUS (FIG.) / VENDUS Sales & Communication Group
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