タグ: Famous mark

HERMES Victory in trademark dispute against HAIRMES

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On July 26, 2023, the Japan Patent Office (JPO) sided with Hermes International in an invalidation trial against TM Reg no. 6275593 for the wordmark “HAIRMES” by finding the owner’s unjustified intention to free-ride and dilute the famous fashion brand “HERMES” and cause confusion.

[Invalidation case no. 2022-890082]

Disputed mark

Dog Diggin Designs, LLC applied a wordmark “HAIRMES” in standard character for use on beds for household pets; pillows for pets; pet cushions in class 20, and toys for pets in class 28 with the JPO on October 16, 2019. Apparently, the company promotes parody dog toys & dog beds, and other pet supplies.

https://www.dogdiggindesigns.com/

Hermes International filed a post-grant opposition against the disputed mark with the JPO on October 15, 2020, and argued the disputed mark shall be canceled in contravention of Article 4(1)(x), (xi), (xv), and (xix) of the Trademark Law because of the remarkable reputation and popularity of the HERMES brand in the fashion industry and a high degree of similarity between “HAIRMES” and “HERMES” likely to cause confusion among relevant consumers in Japan.

The JPO Opposition Board decided to dismiss the opposition by finding unlikelihood of confusion due to a low degree of similarity between the marks. Click here.

Invalidation action by Hermes

Hermes International filed an invalidation action with the JPO based on the same grounds on October 18, 2022, and repeatedly argued the owner must have had an intention to imitate and free-ride on reputation and goodwill of the famous fashion brand “HERMES” by making use of similar trade dress with Hermes packaging color and design in addition to similar HAIRMES mark.

JPO decision

The JPO Invalidation Board admitted that “HERMES” has been widely recognized as a luxury fashion brand and source indicator of Hermes International.

In the assessment of similarity of mark, the Board found both marks are dissimilar in sound and concept. However, these marks give a similar visual impression by sharing the first letter “H” and the four letter “RMES” in the latter half of respective word, which catches the attention of consumers. If so, the Board has a reason to believe there is a certain degree of similarity between the marks.

The Board paid attention to a fact that the owner promotes pet beds and pet toys bearing similar color and decoration to the iconic Hermes packaging. Based on the circumstances, the Board had a view that presumably the owner, knowing that the HERMES mark has been widely recognized among consumers in Japan, must have had an intention to free-ride or dilute reputation on HERMES.

Based on the foregoing, the Board found relevant consumers are likely to confuse the source of pet beds and toys bearing the disputed mark with Hermes International in view of close association with fashion items as well, and decided to invalidate the disputed mark entirely.

Chrysler Wins Japan Trademark Invalidation Trial over “Jeeper”

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In a recent invalidation decision by the Japan Patent Office (JPO), Chrysler could finally achieve victory in a trademark dispute against “Jeeper”, regardless of their failed opposition in 2022.

[Invalidation case no. 2022-890064, decided on July 5, 2023]

Disputed mark

The wordmark “Jeeper” was filed by a Japanese individual for use on various hand tools in class 8 with the JPO on January 27, 2020 (TM App no. 2020-8907).

Since the JPO admitted registration of the mark on November 17, 2020, and published it for a post-grant opposition on December 8, 2020, Fiat Chrysler Automobiles (FCA US) LLC filed an opposition on Jan 26, 2021.

In the opposition, FCA argued the mark shall be canceled in contravention of Article 4(1)(xi) and (xv) of the Trademark Law due to the remarkable reputation and popularity of “JEEP” as a source indicator of Chrysler vehicles and a high degree of similarity between the mark “Jeeper” and Chrysler “JEEP.”

Article 4(1)(xi) is a provision to refrain from registering a junior mark that is deemed identical with, or similar to, an earlier registered mark.

Article 4(1)(xv) provides that a mark shall not be registered where it is likely to cause confusion with other business entities’ well-known goods or services.

However, on April 6, 2022, the JPO Opposition Board dismissed the opposition by questioning the famousness of the “JEEP” mark among relevant consumers of hand tools and finding a low degree of similarity between the two marks (Opposition case no. 2021-900035).

Invalidation action by FCA US LLC

To contest the Opposition Board decision, FCA US LLC filed an invalidation action with the JPO on July 28, 2022, and repeatedly argued the mark “Jeeper” shall be invalid due to its similarity to and the likelihood of confusion with “JEEP” when used on the hand tools in class 8.

The applicant did neither file an answer nor respond to the invalidation claims at all.

JPO Decision

The JPO Trial Board admitted a high degree of reputation and recognition of the claimant’s trademark “JEEP” in connection with small 4WD cars. Besides, based on the facts that the JEEP mark has been used on T-shirts, backpacks, bags, mugs, lunch boxes, carabiners, key chains, spray bottles, containers, and cooler boxes, the Board found the JEEP mark has even become famous among consumers of goods other than automobiles.

Based on the above findings, the Board held that, by taking account of the famousness of the JEEP mark as a source indicator of the claimant’s small 4WD cars, the literal portion of “Jeep” shall play a prominent role in indicating the source of the disputed mark. If so, the disputed mark gives rise to the sound of “Jeep” and the meaning of “the claimant’s famous small 4WD cars” accordingly.

Bearing this in mind, the Board compared the prominent portion “Jeep” of the disputed mark with the claimant’s mark “JEEP” and found a close resemblance of both marks as a whole.

In assessing the likelihood of confusion, the Board held small 4WD cars are remotely associated with hand tools in class 8, however, the Board paid attention to the fact that camp items bearing the JEEP mark e.g., backpacks, mugs, carabiners, cooler boxes, etc., are closely associated with the goods in question.

Based on the foregoing, the Board found relevant consumers are likely to confuse a source of the goods in question bearing the disputed mark with the claimant and decided to invalidate the disputed mark based on Article 4(1)(xi) and (xv).

CASIO Successful in Registering 3D Shape of “G-SHOCK” Watch

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The Japan Patent Office (JPO) disaffirmed the examiner’s rejection and granted protection to the 3D shape of the Casio “G-Shock” watch by finding acquired distinctiveness as a result of substantial use over the past four decades.

[Appeal case no. 20212-11052, Gazette issued date: June 30, 2023]

CASIO “G-SHOCK” Watch

On April 28, 2021, Casio Computer Co., Ltd. filed a trademark application for the 3D shape of the first-released G-Shock, the DW-5000 (see below) to be used on ‘watches’ in class 14 with the JPO (TM application no. 2021-52961).

Rejection by JPO Examiner

On April 11, 2022, the JPO examiner rejected the 3D mark based on Article 3(1)(iii) of the Japan Trademark Law.

In the rejection, taking into consideration various decorations or patterns on the belt and case of wristwatches by other watchmakers (see below), the examiner considered the 3D shape of the applied mark lacks distinctiveness as a source indicator of wristwatch because relevant consumers and traders would recognize it simply represents a common shape of wristwatch adopted to enhance aesthetic function and psychological effect on the goods in question.

The examiner negated the acquired distinctiveness of the 3D shape of “G-Shock”, the DW-5000 regardless of continuous use on Casio’s wristwatches for 40 years on the grounds that:

  1. On the goods, catalogs, and advertisements, wordmarks “CASIO” and “G-SHOCK” have been constantly used as well.
  2. The “G-Shock” wristwatch collection has a lot of models that have a different appearance from the applied 3D shape.
  3. The market research that targeted a total of 1,100 men and women aged over 16 resulted in 55.52% of the interviewees answering “Casio” or “G-Shock” to an open-ended question when shown the 3D shape of the DW-5000. The percentage is insufficient to admit the 3D shape per se has acquired distinctiveness as a source indicator.
A screen shot from casio.com

On July 15, 2022, Casio filed an appeal against the rejection and disputed the acquired distinctiveness.

JPO Appeal Board decision

The Appeal Board affirmed the examiner’s finding in applying Article 3(1)(iii) of the Trademark Law.

In the meantime, the Board paid attention to the fact 66.27% of the interviewees selected “Casio” or “G-Shock” to a closed-ended question, where it mentions G-Shock along with other close competitors.

Provided that more than 60% of consumers associate the 3D shape with Casio or G-Shock, and the shape has the reputation as a representative model of the G-Shock with its unique shock-resistance form, the Board has a reason to believe the 3D shape per se has acquired a substantial degree of recognition among relevant consumers and played a role in source indicator of Casio’s wristwatches. If so, the examiner errored in applying Article 3(2) of the Trademark Law.

Based on the foregoing, the Board decided to cancel the examiner’s rejection and admitted registration of the applied mark exceptionally based on Article 3(2).

VOLVO Fails Trademark Opposition against VOLVOX

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The Japan Patent Office (JPO) dismissed a trademark opposition filed by Volvo Trademark Holding AB against TM Reg no. 6602236 for the mark “VOLVOX” due to the dissimilarity of the mark and unlikelihood of confusion with “VOLVO”.

[Opposition case no. 2022-900449, Gazette issued date: June 30, 2023]

Opposed mark

The opposed mark (see below) was filed in the name of VOLVOX Co., Ltd. for use on advertising and publicity services in class 35 with JPO on March 4, 2022.

The JPO granted protection of the opposed mark on August 8, 2022, and published it for post-grant opposition on August 25, 2022.

Opposition by VOLVO

Volvo Trademark Holding AB filed an opposition against the opposed mark on October 25, 2022, before the lapse of a two-month statutory period counting from the publication date and claimed the opposed mark shall be canceled in contravention of Article 4(1)(x), (xi) and (xv) of the Japan Trademark Law by citing earlier TM Reg no. 4729933 for wordmark “VOLVO” in standard character covering advertising and publicity services in class 35 and others.

VOLVO argued the literal element of the opposed mark “VOLVOX” is confusingly similar to “VOLVO” from visual, aural, and conceptual points of view by taking account of the remarkable reputation of “VOLVO” as a source indicator of VOLVO cars. If so, it is likely that relevant consumers confuse a source of the service in question bearing the opposed mark with the opponent.

JPO decision

The Board admitted that the “VOLVO” mark has acquired a substantial degree of reputation and popularity as a source indicator of VOLVO cars among relevant consumers.

However, the Board negated the similarity between “VOLVO” and “VOLVOX” by stating:

“The opposed mark gives rise to a sound of ‘vol-voks’ and a meaning of ‘freshwater green algae of the genus’. In the meantime, the cited mark has the sound of ‘Volvo’ and the meaning of ‘brand name of automobiles manufactured and sold by VOLVO’. The difference arising from the presence of the letter “X” and figurative elements would be anything but visually negligible. Likewise, both marks are aurally distinguishable due to the difference in the number of sounds and sound structure. Conceptually, there is no doubt to cause confusion because of clear distinction in respective meaning.”

By taking into consideration a lower degree of similarity between the marks, the Board found that relevant consumers are unlikely to associate and confuse the opposed mark with VOLVO even when used on services in question.

Based on the foregoing, the Board dismissed the opposition entirely and decided that the opposed mark “VOLVOX” shall remain valid as the status quo.

Audemars Piguet Unsuccessful Challenge of TM Registration for Iconic Shape of “ROYAL OAK” Timepiece

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On June 8, 2023, the Japan Patent Office (JPO) dismissed an appeal filed by Audemars Piguet Holding SA, a Swiss luxury watchmaker, and affirmed the examiner’s rejection of TM App no. 2020-20319 for a device mark representing AP’s iconic “ROYAL OAK” watch collection by finding a lack of inherent and acquired distinctiveness. [Appeal case no. 2021-013234]

Audemars Piguet “ROYAL OAK” Watch Collection

On February 26, 2020, Audemars Piguet Holding SA (AP) filed a trademark application for the shape of the flagship watch collection “ROYAL OAK” (see below) to be used on ‘watches’ in class 14 with the Japan Patent Office (JPO) [TM application no. 2020-20319].

The mark consists of a dial with tapisserie pattern and hour markers, minute track, date window, an octagonal bezel with 8 hexagonal screws, case, crown, and a lug of the famed “ROYAL OAK” watch collections.

On July 1, 2021, the JPO examiner rejected the applied mark due to a lack of inherent distinctiveness based on Articles 3(1)(iii) of the Japan Trademark Law by stating that relevant consumers would simply recognize it as a generic shape of a wristwatch, not a specific source indication. Besides, from the produced evidence, the examiner did not find the shape per se has acquired nationwide recognition as a source indicator of AP’s watches.

Appeal against the examiner’s rejection by AP

AP filed an appeal against the rejection on October 1, 2021, and alleged inherent distinctiveness as well as acquired distinctiveness of the shape in relation to watches.

AP argued the shape shall be considered inherently distinctive by virtue of a combination of three unique features, namely, (i) an octagonal bezel, (ii) 8 hexagonal screws, and (iii) tapisserie pattern on the surface of a dial. It is inappropriate for the examiner to negate the distinctiveness of the applied mark based on similar watches by third parties that imitate “ROYAL OAK” collections.

Allegedly, “ROYAL OAK” luxury watches have been promoted for sale in Japan since 1972. Annual sales exceed JPY 8 billion on average in the past six years. Each year, AP spent more than JPY400 million on advertisement and promotion in Japan. As a result of the substantial use of the shape on famous AP watches over four decades, even if the shape inherently lacks distinctiveness, it has acquired a significant role as a source indication.

JPO Appeal Board decision

In the decision, the Board held “There are plenty of wristwatches placed in the marketplace by many watchmakers that have a similar shape to the dial, bezel, case, crown, and lug of the applied mark (see below examples). Therefore, the shape, even if it does not contain hands and strap, is unlikely to indicate the origin of goods and distinguish them from competitors”. If so, the examiner’s findings are adequate and the Board did not find any error in applying Article 3(1)(iii) of the Trademark Law on the case.

Besides, the Board questioned if the shape per se has played a role in the source indication of AP’s watches regardless of admitting the presence of “ROYAL OAK” watches in the market for long years on the following grounds.

  1. Number of official stores, 11 is by no means numerous.
  2. The evidence did not suggest any transaction of wristwatches using the applied mark (namely, a watch without strip and hands)
  3. AP did not submit objective evidence to support the sales of “ROYAL OAK” watches
  4. Since AP did not make clear the market share of “ROYAL OAK” watches, it is impossible to compare them with competitors’ watches.
  5. Publications and internet articles pertinent to the “ROYAL OAK” watches always features literal elements “ROYAL OAK”, “AP” or “AUDEMARS PIGUET”.
  6. AP did not produce a market survey to demonstrate how many consumers can identify a source of the wristwatch from the applied mark.

Based on the foregoing, the Board found the applied mark has not acquired a certain degree of recognition as a source indicator of a specific entity among relevant consumers in relation to watches under Article 3(2), and decided to refuse the shape of AP’s “ROYAL OAK” watches.

HERMES Unsuccessful in Trademark Opposition against HERDES

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The Japan Patent Office (JPO) did not side with Hermes International in opposition against TM Reg no. 6552637 for the wordmark “HARDES” in classes 14 and 18 by finding dissimilarity to the famous fashion brand “HERMES”.

[Opposition case no. 2022-900287, decided on May 25, 2023]

Opposed mark

RARELEAK Co, Ltd. applied the wordmark “HARDES” in a plain letter (see below) for use on personal ornaments, earrings, bracelets, ankle bracelets, necklaces, rings, watchbands, cuffs, necktie pins, pendants, pins, brooches, watches, key chains in class 18 and leather, bags and pouches, handbags, shoulder bags, suitcases, trunks, wallets, card cases, key cases, and others in class 18 with the JPO on November 5, 2021 (TM App no. 2021-144521).

The JPO examiner granted protection of the mark on April 1, 2022, and published it for post-grant opposition on May 17, 2022.

Opposition by HERMES

Before the lapse of a two-month statutory period counting from the publication date, Hermes International filed an opposition against the opposed mark on July 13, 2022.

Hermes argued the opposed mark shall be canceled in contravention of Article 4(1)(xi) of the Japan Trademark Law in relation to all goods designated by the opposed mark due to a high degree of similarity between “HERDES” and earlier trademark registration nos. 6179160 and 4467434 for the wordmark “HERMES”.

To bolster the argument for similarity, Hermes cited precedent JPO decisions that affirmed similarity between “NEBROS” and “NEGUROSU” (Appeal case no. 2002-22788), “RELARIS” and “ILARIS” (Opposition case no. 2008-900309).

JPO decision

The JPO Opposition Board found both marks are dissimilar by stating:

Visually, there is a difference in the fourth letter, “D” and “M”, between the opposed mark and cited mark “HERMES”. The difference in the fourth letter of marks both consisting of six letters gives the impression that two marks, as a whole, indicate different words. In this respect, both marks are distinguishable in appearance.

Aurally, a difference of the first three sounds would be anything but negligible and cause a substantial impact on the overall pronunciation given a short sound structure (four sounds). Therefore, the Board has a reason to believe relevant consumers can easily distinguish these sounds without confusion.

Conceptually, the opposed mark does not have a specific conception. Meanwhile, the cited mark gives rise to the meaning of “Hermes, and the god of trade, thieves, travelers, and sport”. It is obvious that both marks are unlikely to be confused in terms of conception.

Based on the foregoing, the Board dismissed the entire allegations and decided the opposed mark shall remain valid as the status quo.

Champion loses trademark opposition over “C” logo

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The Japan Patent Office (JPO) dismissed an opposition filed by HBI Branded Apparel Enterprises, LLC against TM Reg no. 6560200 for the C device mark due to dissimilarity to and the unlikelihood of confusion with the iconic “C” emblem of Champion.

[Opposition case no. 2022-900315, decided on May 22, 2023]

Opposed mark

DAIEI TRADING CO., LTD. a Japanese company, applied a device mark consisting of the “C” curved line and a heart & circle placed vertically inside of the line (see below) for use on apparel, footwear, sports shoes, and sportswear in class 25 with the JPO on December 8, 2021.

The JPO examiner did not raise any objection to the mark at all in the course of the substantive examination.

Accordingly, the mark was registered on May 23, 2022, and published for post-grant opposition on May 31, 2022.

Opposition by Champion

HBI Branded Apparel Enterprises, LLC filed an opposition against the opposed mark on August 2, 2022.

HBI argued the opposed mark shall be canceled in contravention of Article 4(1)(vii), (x), (xi), (xv), and (xix) of the Japan Trademark Law on the grounds that a high degree of similarity between the opposed mark and the iconic “C” emblem (see below) becoming famous as a source indicator of the Champion brand in connection with casual wear, sportswear, and other related goods would inevitably cause confusion among relevant consumers when the opposed mark is used on goods in question.

JPO decision

The JPO Opposition Board admitted that the “C” emblem has acquired a high degree of reputation as a result of substantial use in Japan for more than four decades and become famous as a source indicator of the opponent.

In the meantime, the Board negated the similarity between the marks by stating that:

From the appearance, both marks contain a curved line that looks like a “C” letter; however, the respective line looks totally different by means of a wide difference in line thickness. Besides, there is a clear difference between figurative elements depicted inside of the line (a heart & circle device placed vertically in the opposed mark, a thick vertical line in the cited mark). Therefore, the two marks are visually distinguishable.

Conceptually, the opposed mark does not give rise to any specific meaning. Meanwhile, the cited mark has the meaning of ‘famous brand of the opponent.’ If so, both marks are dissimilar in concept.

Based on the foregoing, the Board has a reason to believe that the opposed mark is dissimilar to the cited mark, even if they cannot be compared in terms of pronunciation.

In a global assessment of the likelihood of confusion, the Board found:

Even if the cited mark is widely recognized among consumers in Japan as a source indicator of the Champion’s business, given the low degree of similarity to the opposed mark, it would be unlikely that relevant traders and consumers at the sight of the opposed mark used on goods in question immediately associate or recall the cited mark or the opponent business.

If so, it is reasonable to consider that relevant consumers are unlikely to confuse the source of the goods bearing the opposed mark with Champion or another entity systematically or economically connected with the opponent.

Based on the foregoing, the JPO dismissed the entire allegations and decided the opposed mark shall remain valid as the status quo.

Unsuccessful Trademark Opposition over MONCLER Logo Outline

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On May 5, 2023, the Japan Patent Office (JPO) dismissed an opposition against the composite mark (TM Registration no. 6561093) filed by Moncler SpA, the Italian luxury fashion label, due to the dissimilarity to a device mark for the Moncler logo outline (Opposition no. 2022-900312).

Opposed mark

On December 4, 2021, COCOMi Corporation sought registration with the JPO of the composite mark consisting of the word “CONOMi” beneath the C logo and encircling outline (see below) for use on bags and pouches in Class 18 and apparel in Class 25.

The mark was registered on May 25, 2022, without receiving any refusal in the course of the substantive examination by the JPO. Thereafter, the mark was published for post-grant opposition on June 2, 2022.

Opposition by MONCLER

Italian luxury fashion brand MONCLER filed an opposition on July 28, 2022, contending that the opposed mark should be canceled for being in contravention with Article 4(1)(xi) and (xv) of the Japan Trademark Law.

MONCLER argued the opposed mark was similar to the earlier IR no. 991913 for the bell-shaped device mark representing the Moncler logo outline (see below) and was likely to cause confusion with MONCLER due to the resemblance between the opposed mark and Moncler’s famous mark, and the close relatedness of the goods in question with MONCLER’s business.

JPO decision

The JPO Opposition Board considered the relevant consumers would not see the encircling outline as a prominent portion of the opposed mark by taking account of the coined word “COCOMi” and the entire visual configuration of the mark.

In so far as the encircling outline of the opposed mark perse would not play a role in identifying the source of goods in question, regardless of the resemblance between the encircling outline and the cited mark, the Board has a reason to believe both marks are dissimilar from visual, aural and conceptual points of view in its entirety.

Given the low level of similarity with the cited mark or the Moncler emblem, the Board had no reason to find that there would be a likelihood of confusion where the opposed mark is used on the goods in question, even though the Moncler emblem has acquired a certain degree of reputation and popularity among relevant consumers in Japan.

Moncler emblem

Consequently, the JPO did not side with MONCLER and decided to dismiss the opposition entirely.

Trademark dispute: iTunes vs HiTune

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On May 1, 2023, the Japan Patent Office (JPO) dismissed an opposition filed by Apple Inc. against TM Reg no. 6536066 for the wordmark “HiTune” by finding dissimilarity to and an unlikelihood of confusion with “iTunes”.

[Opposition case no. 2022-900242]

Opposed mark

UGREEN GROUP LIMITED, a Chinese company, filed the wordmark “HiTune” (see below) for use on computer peripheral devices, data processors, earphones, headphones, microphones, sound transmitting apparatus, and other goods in class 9 with the JPO on November 10, 2021.

The mark was registered on March 29, 2022, without receiving any refusal in the course of the substantive examination taken place by the JPO.

UGREEN has promoted wireless stereo earphones/earbuds bearing the mark.

Opposition by Apple Inc.

On June 6, 2022, Apple Inc. filed an opposition to “HiTune” and contended that the opposed mark shall be canceled in contravention of Article 4(1)(xi) and (xv) of the Japan Trademark Law by citing earlier trademark registration nos. 4570713 “iTUNE”, 4610312 “ITUNES”, 5155781 “iTunes”, IR943547 “ITUNES” in class 9.

Article 4(1)(xi) is a provision to prohibit the registration of a junior mark that is identical with, or similar to, any senior registered mark.

Article 4(1)(xv) provides that a mark shall not be registered where it is likely to cause confusion with other business entities’ well-known goods or services.

Apple Inc. argued that the mark “iTunes” has been famous as a source indicator of the opponent in relation to application software and multi-content distribution service. In view of the remarkable similarity between “HiTune” and “iTunes” by representing the second letter “i” in lower case and the third letter “T” in upper case, relevant consumers would associate the opposed mark with the opponent when used on goods of class 9 in question.

JPO decision

To my surprise, the JPO Opposition Board admitted a certain level of recognition of the mark “iTunes” as a source indicator of Apple Inc. in connection with application software enabling to download music or movies and to manage the contents among consumers of music distribution service, however, denied a substantial level of reputation and popularity of the opponent mark due to a lack of objective evidence produced to the Board.

In assessing the similarity of marks, the Board stated:

Differences such as the presence or absence of “H” at the beginning of the word, the difference between upper- and lower-case letters, and the presence or absence of “s” at the end of the word have a significant impact on the overall visual impression of both marks, which consist of relatively short letters. Therefore, the marks are clearly distinguishable from appearance.

There are distinctions between the sound “ha” and “a” at the beginning of a word, and the presence or absence of the sound “z” at the end of a word. These differences have a material effect on overall sounds given the relatively short sound structure. Therefore, there is less risk of mishearing each other when pronounced.

Since both marks do not give rise to any specific meanings, there is no room to cause confusion in concept.

If so, the Board has a reason to believe both marks are distinctively dissimilar.

Bearing in mind the Board finds that the opponent mark “iTunes” has not become famous among relevant consumers in Japan and has a low degree of similarity to the opposed mark “HiTune”, it is unlikely that the consumers confuse or misunderstand a source of goods in question bearing the opposed mark with Apple Inc. from the totality of the circumstances.

Based on the foregoing, the JPO decided the opposed mark shall not be canceled and dismissed the opposition entirely.