Rapha Racing LTD v. Shenzhen Agehome Technology Co., Ltd.

The applicant did not specify to which goods or services its provision of an online marketplace relates. This would make these services, in principle, similar to any possible product or service that can be subject of the online marketplace services. However, by analogy, t retail services as such will not be considered similar to any goods which may be sold at retail. It is the applicant's final responsibility to comply with the clarity requisites. The act that the applicant did not comply with this requirement for its online marketplace services that have or can have the same objective as retail, cannot result in an assumption in its favour that the contested provision of an online marketplace for buyers and sellers of goods and services does in fact not relate to goods in Classes 3 or 9, or any of the retailed goods in Class 35, such as, for example, clothing, footwear and sporting goods. It follows that it must be found that the contested services may relate to any type of goods or services, and that they may thus comprise goods in Classes 3 and 9, sold under the trade mark of the provider (the applicant) as well as third party brands for these goods, and any of the goods which are the object of the earlier retail services in Class 35. As regards the claimed reputation in the United Kingdom, evidence of reputation or enhanced distinctiveness relating to the United Kingdom can no longer sustain or contribute to the protection of an EUTM as from 1 January 2021, even if that evidence predated 1 January 2021. The contested goods and services in Classes 3, 9, 11, 18, 21, 25 and 35 are identical and similar to various degrees to the earlier goods and services. The signs are visually and aurally highly similar while a conceptual comparison cannot be made, or such comparison remains neutral. There is a likelihood of confusion in the sense of Article 8(1)(b) EUTMR for those goods and services. As to the goods and services found dissimilar, the opposition based on Article 8(5) EUTMR fails since no reputation has been shown.