O/266/21

TRADE MARKS ACT 1994

IN THE MATTER OF APPLICATION NO. UK00003421115 BY DIRECTORY LTD TO REGISTER THE FOLLOWING MARKS:

Epic Gamer Epic Gamers

(SERIES OF 2)

IN CLASSES 18 AND 25

AND IN THE MATTER OF OPPOSITION THERETO UNDER NO. 418168 BY EPIC GAMES, INC.

BACKGROUND AND PLEADINGS

1. On 13 August 2019, Shoe Directory Ltd (“the applicant”) applied to register the trade marks shown on the cover page of this decision in the UK. The application was published for opposition purposes on 23 August 2019 and registration is sought for the goods set out in Annex 1 to this decision.

2. On 22 October 2019, Epic Games, Inc. (“the opponent”) opposed the application based upon sections 5(2)(b), 5(3) and 5(4)(a) of the Trade Marks Act 1994 (“the Act”). For its claims under sections 5(2)(b) and 5(3), the opponent relies upon the following trade marks:

EPIC GAMES UK trade mark no. 3339406 Filing date 18 September 2018; registration date 7 December 2018 Priority date 20 March 2018 (United States of America) (“the First Earlier Mark”)

EPIC GAMES EU trade mark no. 133726281 Filing date 16 October 2014; registration date 6 December 2017 (“the Second Earlier Mark”)

3. For both grounds, the opponent relies upon all the goods and services for which the earlier marks are registered, as set out in Annex 2 to this decision.

4. Under section 5(2)(b), the opponent claims that the parties’ respective marks are similar and the goods are “related”, meaning there will be a likelihood of confusion.

1 Although the UK has left the EU and the transition period has now expired, EUTMs, and International Marks which have designated the EU for protection, are still relevant in these proceedings given the impact of the transitional provisions of The Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 – please see Tribunal Practice Notice 2/2020 for further information.

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5. Under section 5(3), the opponent claims that use of the applicant’s mark would, without due cause, take unfair advantage of, or be detrimental to, the distinctive character and/or repute of the earlier marks.

6. For its claim under section 5(4)(a), the opponent relies upon the sign EPIC GAMES, which it claims to have used worldwide, including the UK, since 2014 in relation to: “, headgear, , retail services relating to clothing, footwear and headgear, bags, backpacks, wallets”.

7. The applicant filed a counterstatement denying the claims made.

8. The opponent is represented by Fieldfisher LLP and the applicant is unrepresented. Both parties filed evidence in chief. The opponent did not file evidence in reply. Neither party requested a hearing, but the opponent filed written submissions in lieu. This decision is taken following a careful perusal of the papers.

EVIDENCE AND SUBMISSIONS

9. The opponent filed evidence in chief in the form of the witness statement of John Farnsworth dated 15 May 2020. Mr Farnsworth is Vice President of Operations for the opponent. Mr Farnsworth’s statement was not accompanied by any exhibits.

10. The applicant filed evidence in chief in the form of the witness statement of Michael Garforth dated 2 September 2020, which is accompanied by 2 exhibits. Mr Garforth is the Managing Director of the applicant and is one of the founders of the business.

11. As noted above, the opponent filed written submission in lieu of a hearing.

12. Whilst I do not propose to summarise the evidence and submissions here, I have taken them into consideration and will refer to them below where necessary.

PRELIMINARY ISSUES

13. In its evidence, the applicant states:

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“4. […] There are over 500 trademarks in the UK with the exact mark of (Epic) and currently over 67 in classes 18 and 25. There is no argument or evidence to prevent anyone from using the word Epic as part of a trade mark. There are over 1000 marks with the word (Gamer or Gamers). There is no argument or evidence to prevent anyone from using the word Gamer or Gamers as part of a trade mark.”

14. In this regard, I note the General Court (“GC”) decision in Zero Industry Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Case T- 400/06, when it was stated that:

“73. As regards the results of the research submitted by the applicant, according to which 93 Community trade marks are made up of or include the word ‘zero’, it should be pointed out that the Opposition Division found, in that regard, that ‘… there are no indications as to how many of such trade marks are effectively used in the market’. The applicant did not dispute that finding before the Board of Appeal but none the less reverted to the issue of that evidence in its application lodged at the Court. It must be found that the mere fact that a number of trade marks relating to the goods at issue contain the word ‘zero’ is not enough to establish that the distinctive character of that element has been weakened because of its frequent use in the field concerned (see, by analogy, Case T 135/04 GfK v OHIM – BUS(Online Bus) [2005] ECR II 4865, paragraph 68, and Case T 29/04 Castellblanch v OHIM – Champagne Roederer (CRISTAL CASTELLBLANCH) [2005] ECR II 5309, paragraph 71).”

15. It is clear from the case law that when assessing the likelihood of confusion under section 5(2)(b), it is necessary to consider the potential for conflict between the applied-for mark and the earlier marks in light of all the relevant circumstances. The existence of other trade marks on the Register is not relevant to my assessment, particularly as I have no evidence as to what these marks actually were or whether they have actually been used in practice.

16. In its evidence, the applicant also states:

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“[…] We would like to also point out the IPO office did not see any similarity and did not believe the Opponent needed to be contacted about the application and publication of the Applicant. This is again more facts to support our argument that the two trade marks are clearly regarded as different and without any proven confusion between them.”

17. Upon examination of the trade mark, this office wrote to the applicant on 21 August 2019 as follows:

“The details of your application will now be published in our online Trade Marks Journal for opposition purposes. As soon as your trade mark is published, we will send you confirmation of the publication details.

After the mark has been published, there is a 2 month opposition period in which anybody may oppose its registration. If someone gives notice that they are considering an opposition, this period will be extended to 3 months. If we receive any opposition, or the opposition period is extended, we will write to you.” (my emphasis)

18. Firstly, the initial search undertaken by this office is not an exhaustive search of the Register for potentially similar marks. Secondly, as outlined in the office’s letter set out above, opposition proceedings can be commenced by anyone, not just those who are notified by the examiner. This is explained in this office’s guidance, as follows:

“Any third party can object to your trade mark, including those not notified. Please note, if you receive a notice of threatened opposition the onus is on you to contact the earlier right holder to try and negotiate or reach an agreement before the end of the opposition period.”2

2 https://www.gov.uk/government/publications/trade-marks-earlier-rights/earlier-rights-fact-sheet--2

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19. It is not detrimental to the opponent’s case that they were not notified by the examiner upon receipt of the application in issue. This line of argument does not, therefore, assist the applicant.

DECISION

Section 5(2)(b)

20. Section 5(2)(b) of the Act reads as follows:

“5(2) A trade mark shall not be registered if because –

(a)…

(b) it is similar to an earlier trade mark and is to be registered for goods or services identical with or similar to those for which the earlier trade mark is protected

there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.”

21. Section 5A of the Act states:

“Where grounds for refusal of an application for registration of a trade mark exist in respect of only some of the goods or services of which the trade mark is applied for, the application is to be refused in relation to those goods and services only.”

22. By virtue of their earlier filing dates, the trade marks upon which the opponent relies qualify as earlier trade marks pursuant to section 6 of the Act. As the earlier marks had not completed their registration process more than five years before the application date of the marks in issue, they are not subject to proof of use pursuant to section 6A of the Act.

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23. Although the UK has left the EU, section 6(3)(a) of the European (Withdrawal) Act 2018 requires tribunals to apply EU-derived national law in accordance with EU law as it stood at the end of the transition period. The provisions of the Act relied upon in these proceedings are derived from an EU Directive. This is why this decision continues to make reference to the trade mark case-law of EU courts.

24. The following principles are gleaned from the decisions of the EU courts in Sabel BV v Puma AG, Case C-251/95, Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc, Case C-39/97, Lloyd Schuhfabrik Meyer & Co GmbH v Klijsen Handel B.V. Case C-342/97, Marca Mode CV v Adidas AG & Adidas Benelux BV, Case C-425/98, Matratzen Concord GmbH v OHIM, Case C-3/03, Medion AG v. Thomson Multimedia Sales Germany & Austria GmbH, Case C-120/04, Shaker di L. Laudato & C. Sas v OHIM, Case C-334/05P and Bimbo SA v OHIM, Case C-591/12P:

(a) The likelihood of confusion must be appreciated globally, taking account of all relevant factors;

(b) the matter must be judged through the eyes of the average consumer of the goods or services in question, who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind, and whose attention varies according to the category of goods or services in question;

(c) the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details;

(d) the visual, aural and conceptual similarities of the marks must normally be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components, but it is only when all other components of a complex mark are negligible that it is permissible to make the comparison solely on the basis of the dominant elements;

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(e) nevertheless, the overall impression conveyed to the public by a composite trade mark may be dominated by one or more of its components;

(f) however, it is also possible that in a particular case an element corresponding to an earlier trade mark may retain an independent distinctive role in a composite mark, without necessarily constituting a dominant element of that mark;

(g) a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa;

(h) there is a greater likelihood of confusion where the earlier mark has a highly distinctive character, either per se or because of the use that has been made of it;

(i) mere association, in the strict sense that the later mark brings to mind the earlier mark, is not sufficient;

(j) the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense;

(k) if the association between the marks creates a risk that the public will wrongly believe that the respective goods or services come from the same or economically-linked undertakings, there is a likelihood of confusion.

Comparison of goods and services

25. In Gérard Meric v Office for Harmonisation in the Internal Market, Case T- 133/05, the GC stated that:

“29. In addition, the goods can be considered as identical when the goods designated by the earlier mark are included in a more general category, designated by trade mark application (Case T-388/00 Institut für Lernsysteme v OHIM – Educational Services (ELS) [2002] ECR II-4301, paragraph 53) or

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where the goods designated by the trade mark application are included in a more general category designated by the earlier mark.”

26. In the Treat case, [1996] R.P.C. 281, Jacob J. (as he then was) identified the following factors for assessing similarity:

(a) The respective uses of the respective goods or services;

(b) The respective users of the respective goods or services;

(c) The physical nature of the goods or acts of service;

(d) The respective trade channels through which the goods or services reach the market;

(e) In the case of self-serve consumer items, where in practice they are respectively found or likely to be found in supermarkets and, in particular, whether they are or are likely to be found on the same or different shelves;

(f) The extent to which the respective goods or services are competitive. This inquiry may take into account how those in trade classify goods, for instance, whether market research companies, who of course act for industry, put the goods or services in the same or different sectors.

27. To my mind, the only clear point of similarity between the specification of the First Earlier Mark and the applicant’s specification are the terms “Providing online retail relating to clothing” and “Providing online retail relating to footwear”. There would be overlap in trade channels between these services and the applicant’s clothing and footwear goods. Further, there would be overlap in user and the goods and services would be complimentary within the meaning of the case law.3 Clearly, the method of

3 Boston Scientific Ltd v Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM), Case T-325/06

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use, purpose and nature of the goods and services will differ. Taking all of this into account, I consider the goods and services to be similar to a medium degree.

28. The specification of the Second Earlier Mark includes the terms “T-shirts; hooded sweatshirts; hats; caps” in class 25. This, in my view, represents the opponent’s best case. For the avoidance of doubt, I note that the applicant’s specification includes a number of duplicates. However, I will refer to the terms only once for the purposes of my comparison.

Class 18

29. The term “bags” in the applicant’s specification will include goods such as handbags, which are often sold through the same trade channels as the opponent’s ”hats” and have a common aesthetic function, although their practical functions differ (one being to cover/protect the body and the other being to carry items).4 Further, these goods will be sold through the same trade channels as the retail services in relation to clothing and footwear in the specification of the First Earlier Mark. The users will overlap. However, the nature and method of use will differ. Taking all of this into account, I consider the goods and services to be similar to a medium degree.

Class 25

30. “Caps”, “hats”, “hooded sweatshirts” and “t-shirts” appear identically in both parties’ specifications.

31. “Caps being headwear” and “Caps [headwear]” in the applicant’s specification are self-evidently identical to “caps” in the opponent’s specification.

32. “Hooded sweat shirts” in the applicant’s specification is self-evidently identical to “hooded sweatshirts” in the opponent’s specification.

4 See El Corte Ingles SA v OHIM, Case T-443/05 and ASOS v ASSOS, Case T-647/11

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33. “Tee-shirts” in the applicant’s specification is self-evidently identical to “t-shirts” in the opponent’s specification.

34. The following goods in the applicant’s specification will be identical on the principle outlined in Meric to “t-shirts” and/or “hooded sweatshirts” in the opponent’s specification:

Articles of clothing; Articles of clothing for theatrical use; Articles of outer clothing; Articles of sports clothing; Athletic clothing; Babies' clothing; Babies' outerclothing; Baby clothes; Baby tops; Baselayer tops; Beach clothes; Beach clothing; Beachwear; Boys' clothing; Cashmere clothing; Casual clothing; Casual wear; Casualwear; Children's clothing; Childrens' clothing; Children's outerclothing; Children's wear; Clothes; Clothes for sport; Clothes for sports; Clothing; Clothing for babies; Clothing for children; Clothing for cycling; Clothing for cyclists; Clothing for horse-riding [other than riding hats]; Clothing for infants; Clothing for leisure wear; Clothing for men, women and children; Clothing for sports; Cycling tops; Cyclists' clothing; Dance clothing; Embroidered clothing; Exercise wear; Fleece tops; Girls' clothing; Gymwear; Hooded tops; Hoodies; Infant clothing; Infant wear; Infants' clothing; Infantwear; Jogging tops; Knit tops; Knitted clothing; Knitted tops; Knitwear; Knitwear [clothing]; Ladies' clothing; Ladies' outerclothing; Ladies wear; Leisure clothing; Leisure wear; Leisurewear; Maternity clothing; Maternity tops; Maternity wear; Men's clothing; Menswear; Outer clothing; Outerclothing; Outerclothing for boys; Outerclothing for girls; Outerclothing for men; Outerwear; Paper clothing; Ready-made clothing; Ready-to-wear clothing; Short-sleeved T-shirts; Silk clothing; Sports clothing; Sports clothing [other than golf gloves]; Sports garments; Sports wear; Sportswear; Sweat shirts; Sweatshirts; Thermal clothing; Thermally insulated clothing; Tops; Tops [clothing]; Women's clothing; Womens' outerclothing; Woolen clothing; Yoga tops.

35. The following goods in the applicant’s specification will be identical on the principle outlined in Meric to “caps” and “hats” in the opponent’s specification:

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Baseball caps; Baseball caps and hats; Baseball hats; Bathing caps; Beach hats; Baseball caps; Baseball caps and hats; Baseball hats; Bathing caps; Beach hats; Beanie hats; Beanies; Berets; Boaters; Bobble hats; Bucket caps; Bucket hats; Caps (Shower -); Caps with visors; Chefs' hats; Children's headwear; Cloche hats; Cycling caps; Fake fur hats; Fascinator hats; Fashion hats; Fedoras; Fezzes; Flat caps; Fur hats; Garrison caps; Golf caps; Hats (Paper -) [clothing]; Head wear; Headgear; Headgear for wear; Knitted caps; Knot caps; Leather headwear; Miters [hats]; Mitres [hats]; Nightcaps; Paper hats [clothing]; Paper hats for use as clothing items; Paper hats for wear by chefs; Paper hats for wear by nurses; Party hats [clothing]; Peaked caps; Peaked headwear; Peaks (Cap -); Rain hats; Sedge hats (suge-gasa); Shower caps; Ski hats; Skull caps; Small hats; Sports caps; Sports caps and hats; Sports headgear [other than helmets]; Sun hats; Swim caps; Swimming caps; Swimming caps [bathing caps]; Thermal headgear; Top hats; Toques [hats]; [fur hats]; Waterpolo caps; Woolly hats.

36. The remaining goods in the applicant’s specification are all types of clothing, headwear or footwear (or parts and fittings for those goods). These goods will all overlap in purpose with the applicant’s goods to the extent that they are intended to provide warmth and/or protect and cover the body. There will be a degree of overlap in nature with the opponent’s goods for the clothing and headgear items. The users will be the same and there may be a degree of overlap in method of use. In my view, all of the goods will overlap in trade channels. It is not uncommon for retail outlets to sell a range of clothing, footwear and headgear and, where these goods appear in more general retailers (such as supermarkets) they will be sold in the same area, if not the same aisle. Taking all of this into account, I consider the remaining goods to be similar to at least a medium degree, although in some cases they will be highly similar.

Average consumer and the nature of the purchasing act

37. As the case law above indicates, it is necessary for me to determine who the average consumer is for the parties’ goods. I must then determine the manner in which the goods are likely to be selected by the average consumer. In Hearst Holdings Inc,

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Fleischer Studios Inc v A.V.E.L.A. Inc, Poeticgem Limited, The Partnership (Trading) Limited, U Wear Limited, J Fox Limited, [2014] EWHC 439 (Ch), Birss J described the average consumer in these terms:

“60. The trade mark questions have to be approached from the point of view of the presumed expectations of the average consumer who is reasonably well informed and reasonably circumspect. The parties were agreed that the relevant person is a legal construct and that the test is to be applied objectively by the court from the point of view of that constructed person. The words “average” denotes that the person is typical. The term “average” does not denote some form of numerical mean, mode or median.”

38. The average consumer for the goods and services will be a member of the general public. The opponent submits:

“26. […] It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the type of goods or services in question. In the case of relatively inexpensive consumer goods such as fast fashion clothing, consumers are likely to make their decisions quickly and pay a relatively low level of attention. […]”

I agree that the cost of purchase is likely to vary (and in some cases will be relatively low) and the goods and services will be purchased reasonably frequently. However, even where the cost of purchase is low, various factors are likely to be taken into consideration. For example, in the case of the goods the average consumer is likely to consider aesthetics, materials and comfort and in the case of the services, the way in which the goods are presented, standard of service and type of goods sold in the particular outlet. Consequently, I consider that a medium degree of attention will be paid during the purchasing process for the goods and services.

39. The goods are likely to be obtained by self-selection from the shelves of a retail outlet or an online equivalent. The services are likely to be selected following perusal of signage on retail premises, through websites or following perusal of advertisements. Visual considerations are, therefore, likely to dominate the selection process.

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However, I do not discount that there will also be an aural component to the purchase, as advice may be sought from a sales assistant or representative and word-of-mouth recommendations may play a part.

Comparison of trade marks

40. It is clear from Sabel BV v. Puma AG (particularly paragraph 23) that the average consumer normally perceives a trade mark as a whole and does not proceed to analyse its various details. The same case also explains that the visual, aural and conceptual similarities of the trade marks must be assessed by reference to the overall impressions created by the trade marks, bearing in mind their distinctive and dominant components. The Court of Justice of the European Union (“CJEU”) stated, at paragraph 34 of its judgment in Case C-591/12P, Bimbo SA v OHIM, that:

“… it is necessary to ascertain, in each individual case, the overall impression made on the target public by the sign for which registration is sought, by means of, inter alia, an analysis of the components of a sign and of their relative weight in the perception of the target public, and then, in the light of that overall impression and all factors relevant to the circumstances of the case, to assess the likelihood of confusion.”

41. It would be wrong, therefore, to artificially dissect the trade marks, although it is necessary to take into account the distinctive and dominant components of the marks and to give due weight to any other features which are not negligible and therefore contribute to the overall impressions created by the marks.

42. The respective trade marks are shown below:

Opponent’s trade marks Applicant’s trade marks

EPIC GAMES Epic Gamer

Epic Gamers (the First and Second Earlier Marks)

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(series of 2)

43. As the First and Second Earlier Marks are identical, the same comparison will apply to both trade marks.

44. The First and Second Earlier Marks both consist of the words EPIC GAMES. There are no other elements to contribute to the overall impression, which lie in the combination of these words. The applicant’s trade marks consist of the words Epic Gamer/Epic Gamers. There are no other elements to contribute to the overall impression, which lie in the combination of these words.

45. Visually, the marks overlap in the first 8 letters i.e. EPIC GAME-. They differ in the endings i.e. -S in the First and Second Earlier Marks and -r/-rs in the applicant’s marks. I bear in mind that, as a general rule, the beginnings of marks tend to make more of an impact than the ends.5 I consider the marks to be visually similar to a high degree.

46. Aurally, the First and Second Earlier Marks will be pronounced EHH-PIK-GAMES. The applicant’s marks will be pronounced EHH-PIK-GAY-MER and EHH-PIK-GAY- MERS respectively. The first two syllables will be pronounced identically and there will be a degree of overlap in the pronunciation of the latter syllables. However, the way in which the endings of each mark are pronounced will be a point of aural difference. I consider the marks to be aurally similar to between a medium and high degree.

47. In relation to the conceptual comparison, the opponent made the following submission in its written submissions in lieu:

“19. […] The Sign EPIC GAMER therefore brings to mind a participant in the Opponent’s games. EPIC GAMES is the Opponent’s Trade Mark so the Sign brings to mind a user of the Opponent’s products. By bringing to mind a participant in games owned by the Opponent under the trade mark EPIC

5 El Corte Ingles, SA v OHIM, Cases T-183/02 and T-184/02

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GAMES, the Sign makes direct reference to the Opponent’s Marks and brings to mind the Opponent and the Opponent’s Marks. […]”

However, this line of argument is based upon a trade mark meaning of the marks; the relevant assessment is based upon their inherent meaning.

48. The word “epic” can be either a noun for something that is long and tells of great events (such as in Homer’s epic, The Odyssey) or an adjective for something that is very large and impressive. In the context of the marks in issue, I consider the latter more likely. This is because, when taken as a whole, the First and Second Earlier Marks are likely to be seen as referring to games that are impressive/large and the applicant’s mark is likely to be seen as referring to a person (or persons) who plays games who is/are themselves very impressive. The conceptual overlap will be the common meaning of the word “epic” and the link with gaming. However, as noted by the applicant, as the First and Second Earlier Marks refer to a game and the applicant’s marks refer to a person(s) this will be a point of conceptual difference. Consequently, I consider the marks to be conceptually similar to between a medium and high degree.

Distinctive character of the earlier trade marks

49. In Lloyd Schuhfabrik Meyer & Co. GmbH v Klijsen Handel BV, Case C-342/97 the CJEU stated that:

“22. In determining the distinctive character of a mark and, accordingly, in assessing whether it is highly distinctive, the national court must make an overall assessment of the greater or lesser capacity of the mark to identify the goods or services for which it has been registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings (see, to that effect, judgment of 4 May 1999 in Joined Cases C- 108/97 and C-109/97 Windsurfing Chiemsee v Huber and Attenberger [1999] ECR 1-2779, paragraph 49).

23. In making that assessment, account should be taken, in particular, of the inherent characteristics of the mark, including the fact that it does or does not

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contain an element descriptive of the goods or services for which it has been registered; the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see Windsurfing Chiemsee, paragraph 51).”

50. Registered trade marks possess varying degrees of inherent distinctive character, ranging from the very low, because they are suggestive or allusive of a characteristic of the goods, to those with high inherent distinctive character, such as invented words which have no allusive qualities. The distinctive character of a mark can be enhanced by virtue of the use that has been made of it.

51. I note that the opponent has not pleaded that its marks have acquired enhanced distinctiveness as part of its section 5(2)(b) claim. In any event, much of the opponent’s evidence relates to the provision of gaming software and, consequently, would not assist the opponent in demonstrating enhanced distinctiveness of the First and Second Earlier Marks in relation to the goods and services that I have found to be similar/identical to the applicant’s goods. In its written submissions in lieu, the opponent refers to Mr Farnsworth’s evidence i.e. that the opponent has been active in the UK for around 20 years. However, I also note that Mr Farnsworth states that the opponent “first used the Trade Marks in the UK at least as early as 30 November 2015”. Whilst the opponent may have been active for a number of years, it appears that the marks relied upon have been used far more recently. Indeed, this would result in just over 3.5 years of trading at the relevant date. I note that the opponent expanded into merchandising in 2018, which included apparel, accessories, clothing, backpacks and bags. Mr Farnsworth names 6 distributors that the opponent has used for its clothing, accessories, headgear and bags. The opponent’s apparel, accessories, bags, backpacks and “other similar and related products” have been sold through a range of UK retailers including Next, Matalan, Tesco, ASDA, Sainsbury’s and M&S. However, it is not clear when the sales through these retailers commenced (and whether it was prior to the relevant date).

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52. Mr Farnsworth states that as of April 2020, the opponent’s sales of apparel in the UK featuring the First and Second Earlier Marks amounted to over $20million. I note that not all of this sum would have related to the period prior to the relevant date, and I have no way of knowing what proportion of these sales fell before that date. In its evidence, the applicant noted:

“7. […] The opposition has provided no evidence that this turnover is for the trade mark EPIC GAMES. We would strongly argue none of this revenue is for any product using only the trade mark EPIC GAMES. From our research we cannot find one product of merchandise for EPIC GAMES, only merchandise for each of the opponent games.”

The opponent’s turnover figures were not supported by exhibits. Despite the applicant’s challenge to the validity of the opponent’s turnover figures, it elected not to file any evidence in reply. It was open to the opponent to do so and, indeed, it should have been straightforward to provide evidence to support its claim regarding the sales made. I have also been provided with no information about advertising and promotional expenditure in relation to the goods in issue. No examples of advertising have been provided. Taking all of this into account, I am not satisfied that the opponent has established that its mark has acquired enhanced distinctiveness through use.

53. Consequently, I have only the inherent position to consider. As noted above, EPIC GAMES is likely to be viewed as a reference to particularly impressive/long games. I bear in mind that it is not descriptive or allusive for the goods in issue. Taking all of this into account, I consider the First and Second Earlier Marks to be inherently distinctive to a medium degree.

Likelihood of confusion

54. Confusion can be direct or indirect. Direct confusion involves the average consumer mistaking one mark for the other, while indirect confusion is where the average consumer realises the marks are not the same but puts the similarity that exists between the marks and the goods down to the responsible undertakings being

18 the same or related. There is no scientific formula to apply in determining whether there is a likelihood of confusion; rather, it is a global assessment where a number of factors need to be borne in mind. The first is the interdependency principle i.e. a lesser degree of similarity between the respective trade marks may be offset by a greater degree of similarity between the respective goods and vice versa. As I mentioned above, it is necessary for me to keep in mind the distinctive character of the earlier marks, the average consumer for the goods and the nature of the purchasing process. In doing so, I must be alive to the fact that the average consumer rarely has the opportunity to make direct comparisons between trade marks and must instead rely upon the imperfect picture of them that he has retained in his mind.

55. I have found the marks to be visually similar to a high degree and aurally and conceptually similar to between a medium and high degree. I have found the earlier marks to be inherently distinctive to a medium degree. I have found the average consumer to be a member of the general public, who will purchase the goods and services predominantly through visual means (although I do not discount an aural component). I have concluded that a medium degree of attention will be paid during the purchasing process. I have found the goods and services to vary from identical to similar to at least a medium degree.

56. In my view, given that the purchasing process is predominantly visual and the visual similarities between the marks are high, I consider that the marks are likely to be misremembered or mistakenly recalled as each other when used on goods and services that are similar to at least a medium degree. The differences in the ending (and the consequent differences in the conceptual meaning conveyed) will, in my view, be overlooked by the average consumer. Consequently, I consider there to be a likelihood of direct confusion for all of the goods.

57. In reaching this conclusion, I have borne in mind the applicant’s following submissions as set out in its evidence:

“8. […] Our evidence is that is the use of the 2 hashtags #EPICGAMER (see appendix 1 and 2 attached) and #EPIC GAMES (see appendix 3 and 4 attached). Hashtags are made by any member of the public; they are not owned

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and are used by the general public. They cannot be confused. These hashtags are mainly used on the social media platform Instagram and upon looking at the two hashtags it is clearly demonstrated that the #EPICGAMES is filled with posts from the public on screen shots taken from all the computer games Epic Games owns. Where as #EPICGAMER is filled with posts from the public on all kinds of activities, memes, people, and nothing referring to Epic Games. This clearly demonstrates the trade marks Application are not similar as to prove this similarity the opponent would need to show evidence that the confusion exists on the part of the public. I have provided evidence that there is no confusion. The public would not confuse the terms games and gamer. […]”

It is difficult to see some of the images provided in full due to their positioning on screen at the time of the screenshot.6 However, this line of argument does not account for the principle of imperfect recollection or the fact that the goods in issue here are clothing/footwear/headgear and related services (as opposed to gaming products and related services). Further, the opponent does not need to prove that confusion has actually occurred in order to establish a likelihood of confusion. Consequently, I do not consider that this assists the applicant.

58. The opposition under section 5(2)(b) succeeds in its entirety.

Section 5(3)

59. Section 5(3) of the Act states:

“5(3) A trade mark which -

(a) is identical with or similar to an earlier trade mark, shall not be registered if, or to the extent that, the earlier trade mark has a reputation in the United Kingdom (or, in the case of a European Union trade mark or international trade mark (EC), in the European Union) and the use of the later mark without due cause would take unfair advantage of, or be

6 Appendix 1 and 2

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detrimental to, the distinctive character or repute of the earlier trade mark.”

60. As noted above, by virtue of their earlier filing dates, the First and Second Earlier Marks qualify as earlier marks pursuant to section 6 of the Act. Given the dates on which they were registered, they are not subject to the proof of use requirements in section 6A of the Act and the opponent can rely upon all of the goods and services identified.

61. I bear in mind the relevant case law set out in the following judgments of the CJEU: Case C-375/97, General Motors, Case 252/07, Intel, Case C-408/01, Adidas- Salomon, Case C-487/07, L’Oreal v Bellure and Case C-323/09, Marks and Spencer v Interflora. The conditions of section 5(3) are cumulative. Firstly, the opponent must show that the earlier marks have achieved a level of knowledge/reputation amongst a significant part of the public. Secondly, it must be established that the level of reputation and the similarities between the marks will cause the public to make a link between them, in the sense of the earlier marks being brought to mind by the later marks. Thirdly, assuming the first and second conditions have been met, section 5(3) requires that one or more of the types of damage will occur. It is unnecessary for the purposes of section 5(3) that the goods be similar, although the relative distance between them is one of the factors which must be assessed in deciding whether the public will make a link between the marks.

62. The relevant date for the assessment under section 5(3) of the Act is the date of the application i.e. 13 August 2019.

Reputation

63. In General Motors, Case C-375/97, the CJEU held that:

“25. It cannot be inferred from either the letter or the spirit of Article 5(2) of the Directive that the trade mark must be known by a given percentage of the public so defined.

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26. The degree of knowledge required must be considered to be reached when the earlier mark is known by a significant part of the public concerned by the products or services covered by that trade mark.

27. In examining whether this condition is fulfilled, the national court must take into consideration all the relevant facts of the case, in particular the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it.

28. Territorially, the condition is fulfilled when, in the terms of Article 5(2) of the Directive, the trade mark has a reputation 'in the Member State‘. In the absence of any definition of the Community provision in this respect, a trade mark cannot be required to have a reputation 'throughout‘ the territory of the Member State. It is sufficient for it to exist in a substantial part of it.”

64. In determining whether the opponent has demonstrated a reputation for the goods and services in issue, it is necessary for me to consider whether its marks will be known by a significant part of the public concerned with the goods and services. In reaching this decision, I must take all of the evidence into account including “the market share held by the trademark, the intensity, geographical extent and duration of use, and the size of the investment made by the undertaking in promoting it.” The relevant public for the First Earlier Mark will be the UK public and for the Second Earlier Mark will be the EU public.

65. The opponent’s evidence suffers from the same deficiencies as identified above in relation to what the opponent describes as merchandise (i.e. clothing, bags, accessories etc.). Consequently, I do not consider that the opponent has demonstrated a reputation for these goods. With regard to the opponent’s broader specification, Mr Farnsworth notes that the opponent is best known for its computer game Fortnite. Mr Farnsworth notes that the game had acquired over 350million player accounts as of May 2020 (an increase of 100million from March 2019). Mr Farnsworth states that each customer would have seen the First and Second Earlier Marks at least once when creating their account and is likely to see it every time they log in to play. Mr Farnsworth states that, in 2019, the opponent commenced a tournament called the

22

Fortnite World Cup in New York. This was attended by over 19,000 people and 2.3 million people viewed the event on YouTube and Twitch. I recognise that, as the opponent’s game is free-to-play, the opponent would not be able to supply turnover figures; I do not consider this to be detrimental to the opponent’s case. However, the opponent’s evidence suffers from two key deficiencies: 1) no breakdown is given as to what proportion of its customers are based in the EU/UK to enable me to assess the scale of the opponent’s use amongst the relevant publics and 2) much of the evidence refers to events after the relevant date or, at least, that may have occurred after the relevant date. For example, Mr Farnsworth states that the Fortnite World Cup took place in 2019, but he does not state when in 2019. Given that the relevant date falls in August of that year, this event may or may not have taken place prior to that date. No evidence is provided about market share or advertising and promotional activities. Taking the evidence as a whole into account, I am not satisfied that the opponent has demonstrated that it had a reputation for the goods and services relied upon at the relevant date.

66. The opposition based upon section 5(3) of the Act is dismissed.

Section 5(4)(a)

67. Section 5(4)(a) of the Act states as follows:

“5(4) A trade mark shall not be registered if, or to the extent that, its use in the United Kingdom is liable to be prevented -

a) by virtue of any rule of law (in particular, the law of passing off) protecting an unregistered trade mark or other sign used in the course of trade, where the condition in subsection (4A) is met,

aa)…

b) …

23

A person thus entitled to prevent the use of a trade mark is referred to in this Act as the proprietor of “an earlier right” in relation to the trade mark”.

68. Subsection (4A) of section 5 of the Act states:

“(4A) The condition mentioned in subsection (4)(a) is that the rights to the unregistered trade mark or other sign were acquired prior to the date of application for registration of the trade mark or date of the priority claimed for that application.”

69. In Discount Outlet v Feel Good UK, [2017] EWHC 1400 IPEC, Her Honour Judge Melissa Clarke, sitting as a deputy Judge of the High Court, conveniently summarised the essential requirements of the law of passing off as follows:

“55. The elements necessary to reach a finding of passing off are the ‘classical trinity' of that tort as described by Lord Oliver in the Jif Lemon case (Reckitt & Colman Product v Borden [1990] 1 WLR 491 HL, [1990] RPC 341, HL), namely goodwill or reputation; misrepresentation leading to deception or a likelihood of deception; and damage resulting from the misrepresentation. The burden is on the Claimants to satisfy me of all three limbs.

56. In relation to deception, the court must assess whether "a substantial number" of the Claimants' customers or potential customers are deceived, but it is not necessary to show that all or even most of them are deceived (per Interflora Inc v Marks and Spencer Plc [2012] EWCA Civ 1501, [2013] FSR 21).”

70. The applicant does not indicate any date prior to the application upon which it may have started trading. Consequently, I have only the prima facie relevant date to consider i.e. 13 August 2019.

Goodwill

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71. In Inland Revenue Commissioners v Muller & Co’s Margarine Ltd [1901] AC 217 (HOL), goodwill was described in the following terms:

“What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start.”

72. In South Cone Incorporated v Jack Bessant, Dominic Greensmith, Kenwyn House and Gary Stringer (a partnership) [2002] RPC 19 (HC), Pumfrey J. stated:

“27. There is one major problem in assessing a passing off claim on paper, as will normally happen in the Registry. This is the cogency of the evidence of reputation and its extent. It seems to me that in any case in which this ground of opposition is raised the registrar is entitled to be presented with evidence which at least raises a prima facie case that the opponent's reputation extends to the goods comprised in the applicant's specification of goods. The requirements of the objection itself are considerably more stringent that the enquiry under s.11 of the 1938 Act (see Smith Hayden & Co. Ltd's Application (OVAX) (1946) 63 R.P.C. 97 as qualified by BALI Trade Mark [1969] R.P.C. 472). Thus the evidence will include evidence from the trade as to reputation; evidence as to the manner in which the goods are traded or the services supplied; and so on.

28. Evidence of reputation comes primarily from the trade and the public, and will be supported by evidence of the extent of use. To be useful, the evidence must be directed to the relevant date. Once raised, the applicant must rebut the prima facie case. Obviously, he does not need to show that passing off will not occur, but he must produce sufficient cogent evidence to satisfy the hearing officer that it is not shown on the balance of probabilities that passing off will occur.”

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73. However, in Minimax GmbH & Co KG v Chubb Fire Limited [2008] EWHC 1960 (Pat) Floyd J. (as he then was) stated that:

“[The above] observations are obviously intended as helpful guidelines as to the way in which a person relying on section 5(4)(a) can raise a case to be answered of passing off. I do not understand Pumfrey J to be laying down any absolute requirements as to the nature of evidence which needs to be filed in every case. The essential is that the evidence should show, at least prima facie, that the opponent's reputation extends to the goods comprised in the application in the applicant's specification of goods. It must also do so as of the relevant date, which is, at least in the first instance, the date of application.”

74. The relevant market for assessing goodwill is the UK market. I note that the opponent has been producing the goods relied upon in the UK since 2018 (although it is not clear when in 2018). At best, this would amount to 20 months of trading at the relevant date; at worst, it would amount to only 8 months. I note that the opponent has sold its goods through national retailers as set out above. However, it is not clear when the sales through these national retailers commenced (and, specifically, whether they were prior to the relevant date). Mr Farnsworth states that as of April 2020, the opponent’s sales of apparel in the UK featuring the First and Second Earlier Marks amounted to over $20million. As noted above, it is not clear what proportion of these sales relate to the period prior to the relevant date. Further, the applicant challenged the validity of this evidence (which was not supported by exhibits) and that challenge has gone unanswered by the opponent. In light of these issues with the opponent’s evidence, I am not satisfied that it had goodwill for the goods relied upon at the relevant date.

75. The opposition based upon section 5(4)(a) is dismissed.

CONCLUSION

76. The opposition based upon section 5(2)(b) is successful and the application is refused.

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COSTS

77. The opponent has been successful and is entitled to a contribution towards its costs based upon the scale published in Tribunal Practice Notice 2/2016. Although the fee paid by the opponent was £200 (as it pleaded section 5(3) and 5(4)(a) grounds), it has only been successful in relation to its section 5(2)(b) ground which would have attracted a fee of only £100. Consequently, I do not consider it appropriate to award the opponent the full official fee. Further, although the opponent filed evidence, it was very limited and for the reasons set out above, it did not assist the opponent. Consequently, I decline to make an award of costs in respect of the preparation and filing of evidence. In the circumstances, I award the opponent the sum of £1,350, calculated as follows:

Preparing a statement and considering the £400 applicant’s statement

Reviewing the other side’s evidence £500

Written submissions in lieu £350

Official fee £100

Total £1,350

78. I therefore order Shoe Directory Ltd to pay Epic Games, Inc. the sum of £1,350. This sum should be paid within 21 days of the expiry of the appeal period or, if there is an appeal, within 21 days of the conclusion of the appeal proceedings.

Dated this 15th day of April 2021

S WILSON For the Registrar

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ANNEX 1

Class 18 Bags.

Class 25 Adhesive bras; After ski ; Aikido suits; Aikido uniforms; Albs; Aloha shirts; American football bibs; American football pants; American football shirts; American football shorts; American football ; Anglers' ; Ankle boots; Ankle socks; Anklets [socks]; Anoraks; Anoraks [parkas]; Anti-perspirant socks; Anti-sweat underclothing; Anti-sweat underwear; Après-ski boots; Apres-ski shoes; Aprons; Aprons [clothing]; Aqua shoes; Arm warmers [clothing]; Army boots; Articles of clothing; Articles of clothing for theatrical use; Articles of clothing made of hides; Articles of clothing made of leather; Articles of outer clothing; Articles of sports clothing; Articles of underclothing; Ascots; Ascots (ties);Athletic clothing; Athletic footwear; Athletic shoes; Athletic ; Athletic uniforms; Athletics footwear; Athletics hose; Athletics shoes; Athletics vests; Babies' clothing; Babies' outerclothing; Babies' pants [clothing]; Babies' pants [underwear]; Babies' undergarments; Babushkas; Baby bibs [not of paper]; Baby bodysuits; Baby boots; Baby bottoms; Baby clothes; Baby doll pyjamas; Baby layettes for clothing; Baby pants; Baby ; Baby tops; Balaclavas; Ball gowns; Ballet shoes; Ballet ; Ballet suits; Ballroom dancing shoes; Bandanas; Bandanas [neckerchiefs]; Bandannas; Bandeaux [clothing]; Barber smocks; Baseball caps; Baseball caps and hats; Baseball hats; Baseball shoes; Baseball uniforms; Baselayer bottoms; Baselayer tops; Basic upper garment of Korean traditional clothes [Jeogori]; Basketball shoes; Basketball ; Bath robes; Bath sandals; Bath slippers; Bathing caps; Bathing costumes; Bathing costumes for women; Bathing drawers; Bathing suit cover-ups; Bathing suits; Bathing suits for men; Bathing trunks; Bathrobes; Beach clothes; Beach clothing; Beach cover- ups; Beach footwear; Beach hats; Beach robes; Adhesive bras; After ski boots; Aikido suits; Aikido uniforms; Albs; Aloha shirts; American football bibs; American football pants; American football shirts; American football shorts; American football socks; Anglers' shoes; Ankle boots; Ankle socks; Anklets [socks]; Anoraks; Anoraks [parkas]; Anti-perspirant socks; Anti-sweat underclothing; Anti-sweat underwear; Après-ski boots; Apres-ski shoes; Aprons; Aprons [clothing]; Aqua shoes; Arm warmers

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[clothing]; Army boots; Articles of clothing; Articles of clothing for theatrical use; Articles of clothing made of hides; Articles of clothing made of leather; Articles of outer clothing; Articles of sports clothing; Articles of underclothing; Ascots; Ascots (ties); Athletic clothing; Athletic footwear; Athletic shoes; Athletic tights; Athletic uniforms; Athletics footwear; Athletics hose; Athletics shoes; Athletics vests; Babies' clothing; Babies' outerclothing; Babies' pants [clothing]; Babies' pants [underwear]; Babies' undergarments; Babushkas; Baby bibs [not of paper]; Baby bodysuits; Baby boots; Baby bottoms; Baby clothes; Baby doll pyjamas; Baby layettes for clothing; Baby pants; Baby sandals; Baby tops; Balaclavas; Ball gowns; Ballet shoes; Ballet slippers; Ballet suits; Ballroom dancing shoes; Bandanas; Bandanas [neckerchiefs]; Bandannas; Bandeaux [clothing]; Barber smocks; Baseball caps; Baseball caps and hats; Baseball hats; Baseball shoes; Baseball uniforms; Baselayer bottoms; Baselayer tops; Basic upper garment of Korean traditional clothes [Jeogori]; Basketball shoes; Basketball sneakers; Bath robes; Bath sandals; Bath slippers; Bathing caps; Bathing costumes; Bathing costumes for women; Bathing drawers; Bathing suit cover-ups; Bathing suits; Bathing suits for men; Bathing trunks; Bathrobes; Beach clothes; Beach clothing; Beach cover-ups; Beach footwear; Beach hats; Beach robes; Beach shoes; Beach wraps; Beachwear; Beanie hats; Beanies; Bed jackets; Bed socks; Belts [clothing]; Belts for clothing; Belts made from imitation leather; Belts made of leather; Belts made out of cloth; Belts (Money -) [clothing]; Belts of textile; Berets; Bermuda shorts; Bib overalls for hunting; Bib shorts; Bib tights; Bibs, not of paper; Bibs, sleeved, not of paper; Bikinis; Blazers; Bloomers; Blouses; Blouson jackets; Blousons; Blue jeans; Board shorts; Boardshorts; Boas; Boas [clothing]; Boas [necklets]; Boaters; Bobble hats; Bodices; Bodices [lingerie];Bodies [clothing]; Bodies [underclothing]; Body linen [garments]; Body ; Body suits; Body warmers; Bodysuits; Boiler suits; Boleros; Bolo ties; Bolo ties with precious metal tips; Bomber jackets; Bonnets; Bonnets [headwear]; cuffs; Boot uppers; Bootees (woollen baby shoes); Booties; Boots; Boots for motorcycling; Boots for sport; Boots for sports; Boots (Ski -); Bottoms [clothing]; Bow ties; Bowling shoes; Bowties; Boxer briefs; Boxer shorts; Boxing shoes; Boxing shorts; Boy shorts [underwear]; Boys' clothing; Bra straps; Bra straps [parts of clothing]; Braces as suspenders; Braces for clothing; Braces for clothing [suspenders]; Braces [suspenders]; Bralettes; Bras; Brassieres; Breeches; Breeches for wear; Bridal garters; Bridal gowns; Bridesmaid dresses; Bridesmaids wear; Briefs; Briefs [underwear]; Bucket caps; Bucket hats; Burkas; Burnouses; Bushjackets; Bustiers;

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Bustle holder bands for obi (obiage); Bustles for obi-knots (obiage-shin); Button down shirts; Button-front aloha shirts; Caftans; Cagoules; Camiknickers; Camisoles; Camouflage gloves; Camouflage jackets; Camouflage pants; Camouflage shirts; Camouflage vests; Canvas shoes; Cap peaks; Cap visors; Capelets; Capes; Capes (clothing); Capri pants; Caps; Caps being headwear; Caps [headwear]; Caps (Shower -); Caps with visors; Car coats; Cardigans; Cargo pants; Cashmere clothing; Cashmere scarves; Cassocks; Casual clothing; Casual footwear; Casual jackets; Casual shirts; Casual trousers; Casual wear; Casualwear; Chadors; Chaps; Chaps (clothing); Chasubles; Chefs' hats; Chefs' whites; Chemise tops; Chemises; Chemisettes; Cheongsams (Chinese gowns); Children's clothing; Childrens' clothing; Children's footwear; Children's headwear; Children's outerclothing; Children's wear; Chino pants; Choir robes; Christening gowns; Christening robes; Cleats for attachment to sports shoes; Climbing boots; Climbing boots [mountaineering boots]; Climbing footwear; Cloaks; Cloche hats; ; Cloth bibs; Cloth bibs for adult diners; Clothes; Clothes for sport; Clothes for sports; Clothing; Clothing containing slimming substances; Clothing for babies; Clothing for children; Clothing for cycling; Clothing for cyclists; Clothing for fishermen; Clothing for gymnastics; Clothing for horse-riding [other than riding hats]; Clothing for infants; Clothing for leisure wear; Clothing for martial arts; Clothing for men, women and children; Clothing for skiing; Clothing for sports; Clothing for wear in judo practices; Clothing for wear in wrestling games; Clothing layettes; Clothing made of fur; Clothing made of imitation leather; Clothing made of leather; Clothing of imitations of leather; Clothing of leather; Coats; Coats for men; Coats for women; Coats made of cotton; Coats of denim; Coats (Top -); Cocktail dresses; Collar guards for protecting clothing collars; Collar liners for protecting clothing collars; Collar protectors; Collared shirts; Collars; Collars [clothing]; Collars for dresses; Combative sports uniforms; Combinations [clothing]; Corduroy pants; Corduroy shirts; Corduroy trousers; Corselets; Corsets; Corsets [clothing, foundation garments]; Corsets [foundation clothing]; Corsets [underclothing]; Costumes; Costumes for use in children's dress up play; Costumes for use in role-playing games; Costumes (Masquerade -); Cotton coats; Coveralls; Coverups; Cover-ups; Cowls [clothing]; Cravates; Cravats; Crew neck sweaters; Crinolines; Crop tops; Cuffs; Culotte skirts; Culottes; Cummerbunds; Cycling caps; Cycling Gloves; Cycling pants; Cycling shoes; Cycling shorts; Cycling tops; Cyclists' clothing; Dance clothing; Dance costumes; Dance shoes; Dance slippers; Deck shoes; Deck-shoes; Denim coats;

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Denim jackets; Denim jeans; Denim pants; Denims [clothing]; Desert boots; Detachable collars; Detachable neckpieces for kimonos (haneri); Dinner jackets; Dinner suits; Disposable slippers; Disposable underwear; Donkey jackets; Down jackets; Down vests; Drawers as clothing; Drawers [clothing]; Dress pants; Dress shields; Dress shirts; Dress shoes; Dress suits; Dresses; Dresses for evening wear; Dresses for infants and toddlers; Dresses made from skins; Dressing gowns; Driving gloves; Driving shoes; Duffel coats; Duffle coats; Dungarees; Dust coats; Ear muffs; Ear muffs [clothing]; Ear warmers; Ear warmers being clothes; Earbands; Earmuffs; Embossed heels of rubber or of plastic materials; Embossed soles of rubber or of plastic materials; Embroidered clothing; ; Esparto shoes or sandals; Esparto shoes or sandles; Evening coats; Evening dresses; Evening gowns; Evening suits; Evening wear; Exercise wear; Eye masks; Fabric belts; Fabric belts [clothing]; Fake fur hats; Fancy dress costumes; Fascinator hats; Fashion hats; Fedoras; Fezzes; Figure skating clothing; Fingerless gloves; Fingerless gloves as clothing; Fishermen's jackets; Fishing boots; Fishing clothing; Fishing footwear; Fishing headwear; Fishing jackets; Fishing shirts; Fishing smocks; Fishing vests; Fishing ; Fitted swimming costumes with bra cups; Fittings of metal for boots and shoes; Fittings of metal for footwear; Flat caps; Flat shoes; Fleece jackets; Fleece pullovers; Fleece shorts; Fleece tops; Fleece vests; Fleeces; Flip-flops; Flip-flops for use as footwear; Flying suits; Foam pedicure slippers; Folk costumes; Foot volleyball shoes; Football boots; Football boots (Studs for -); Football jerseys; Football shirts; Football shoes; Footless socks; Footless tights; Footmuffs, not electrically heated; Footwear; Footwear [excluding orthopedic footwear]; Footwear (Fittings of metal for -); Footwear for men; Footwear for men and women; Footwear for snowboarding; Footwear for sport; Footwear for sports ;Footwear for track and field athletics; Footwear for use in sport; Footwear for women; Footwear made of vinyl; Footwear made of wood; Footwear (Non-slipping devices for -); Footwear not for sports; Footwear soles; Footwear (Tips for -); Footwear uppers; Footwear (Welts for -); Formal evening wear; Formal wear; Formalwear; Foulards [clothing articles]; Foundation garments; Frames (Hat -) [skeletons]; Frock coats; Full-length kimonos (nagagi); Functional underwear; Fur cloaks; Fur coats; Fur coats and jackets; Fur hats; Fur jackets; Fur muffs; Fur stoles; Furs [clothing]; Gabardines; Gabardines [clothing]; Gaiter straps; Gaiters; ; Garments for protecting clothing; Garrison caps; Garter belts; Garters; Gauchos; Gilets; Girdles; Girdles [corsets]; Girls' clothing; Gloves; Gloves as clothing;

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Gloves [clothing]; Gloves for apparel; Gloves for cyclists; Gloves including those made of skin, hide or fur; Gloves with conductive fingertips that may be worn while using handheld electronic touch screen devices; Golf caps; Golf clothing, other than gloves; Golf footwear; Golf shirts; Golf shoes; Golf shorts; Golf skirts; Golf trousers; Goloshes; Gowns; Gowns for doctors; Greatcoats; G-strings; Guernseys; Gussets for bathing suits [parts of clothing]; Gussets for footlets [parts of clothing]; Gussets for leotards [parts of clothing]; Gussets for stockings [parts of clothing]; Gussets for tights [parts of clothing]; Gussets for underwear [parts of clothing]; Gussets [parts of clothing]; Gym boots; Gym shorts; Gym suits; Gymnastic shoes; Gymshoes; Gymwear; Hairdressing capes; Half-boots; Halloween costumes; Halter tops; Handball shoes; Handwarmers [clothing]; Haneri [detachable neckpieces for kimonos]; Hat frames [skeletons]; Hats; Hats (Paper -) [clothing]; Head bands; Head scarves; Head sweatbands; Head wear; Headbands; Headbands against sweating; Headbands [clothing]; Headbands for clothing; Headdresses [veils]; Headgear; Headgear for wear; Headscarfs; Headscarves; Headshawls; Headsquares; Headwear; Heavy coats; Heavy jackets; Heel inserts; Heel pieces for shoes; Heel pieces for stockings; Heel protectors for shoes; Heelpieces for footwear; Heelpieces for stockings; Heels; Hidden heel shoes; High rain clogs (ashida); High-heeled shoes; Hijabs; Hiking boots; Hiking shoes; Hockey shoes; Hooded pullovers; Hooded sweat shirts; Hooded sweatshirts; Hooded tops; Hoodies; Hoods; Hoods [clothing]; Horse-riding boots; Horse-riding pants; ; House coats; Housecoats; Hunting boot bags; Hunting boots; Hunting jackets; Hunting pants; Hunting shirts; Hunting vests; Imitation leather dresses; Infant clothing; Infant wear; Infants' boots; Infants' clothing; Infants' footwear; Infants' shoes; Infants' trousers; Infantwear; Inner socks for footwear; Inner soles; Innersocks; Insoles; Insoles for footwear; Insoles for shoes and boots; Insoles [for shoes and boots]; Intermediate soles; Jacket liners; Jackets; Jackets being sports clothing; Jackets [clothing]; Jackets (Stuff -) [clothing]; Japanese footwear of rice straw (); Japanese kimonos; Japanese sleeping robes (nemaki); Japanese sleeping robes [nemaki]; Japanese split-toed work footwear (jikatabi); Japanese style clogs and sandals; Japanese style sandals of felt; Japanese style sandals of leather; Japanese style sandals (zori); Japanese style socks (); Japanese style socks (tabi covers); Japanese style wooden clogs (); Japanese toe-strap sandals (asaura-zori); Japanese traditional clothing; Jeans; Jerkins; Jerseys; Jerseys [clothing]; Jockstraps [underwear]; Jodhpurs; Jogging bottoms; Jogging bottoms [clothing]; Jogging outfits;

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Jogging pants; Jogging sets [clothing]; Jogging shoes; Jogging suits; Jogging tops; Judo suits; Judo uniforms; Jump Suits; Jumper dresses; Jumper suits; Jumpers; Jumpers [pullovers]; Jumpers [sweaters]; Jumpsuits; Kaftans; Karate suits; Karate uniforms; Kendo outfits; Kerchiefs; Kerchiefs [clothing]; Khakis; Khimars; Kilts; Kimonos; Knee warmers [clothing]; Knee-high stockings; Knickerbockers; Knickers; Knit jackets; Knit shirts; Knit tops; Knitted baby shoes; Knitted caps; Knitted clothing; Knitted gloves; Knitted tops; Knitted underwear; Knitwear; Knitwear [clothing]; Knot caps; Korean outer jackets worn over basic garment [Magoja]; Korean topcoats [Durumagi]; Korean traditional women's waistcoats [Baeja]; Laboratory coats; Lace boots; Ladies' boots; Ladies' clothing; Ladies' dresses; Ladies' footwear; Ladies' outerclothing; Ladies' sandals; Ladies' suits; Ladies' underwear; Ladies wear; Layettes; Layettes [clothing]; Leather belts [clothing]; Leather clothing; Leather (Clothing of -); Leather (Clothing of imitations of -); Leather coats; Leather dresses; Leather garments; Leather headwear; Leather jackets; Leather pants; Leather shoes; Leather slippers; Leather suits; Leather waistcoats; Leg warmers; Leggings [leg warmers]; Leggings [trousers]; Legwarmers; Leg-warmers; Leisure clothing; Leisure footwear; Leisure shoes; Leisure suits; Leisure wear; Leisurewear; Leotards; Light- reflecting coats; Light-reflecting jackets; Linen (Body -) [garments]; Linen clothing; Lingerie; Linings (Ready-made -) [parts of clothing]; Liveries; Long jackets; Long johns; Long sleeve pullovers; Long sleeved vests; Long underwear; Long-sleeved shirts; Lounge pants; Loungewear; Lounging robes; Low wooden clogs (hiyori-geta); Low wooden clogs (koma-geta); Low wooden clogs [koma-geta]; Lumberjackets; Mackintoshes; Maillots; Maillots [hosiery]; Maniples; Mankinis; Mantillas; Mantles; Martial arts uniforms; Masks (Sleep -); Masquerade and halloween costumes; Masquerade costumes; Maternity bands; Maternity clothing; Maternity dresses; Maternity leggings; Maternity lingerie; Maternity pants; Maternity shirts; Maternity shorts; Maternity sleepwear; Maternity smocks; Maternity tops; Maternity underwear; Maternity wear; Men's and women's jackets, coats, trousers, vests; Men's clothing; Men's ; Men's sandals; Men's socks; Men's suits; Men's underwear; Menswear; Metal fittings for Japanese style wooden clogs; Military boots; Millinery; Miniskirts; Miters [hats]; Mitres [hats]; Mittens; Mitts [clothing]; ; Mock turtleneck shirts; Mock turtleneck sweaters; Mock turtlenecks; Moisture-wicking sports bras; Moisture-wicking sports pants; Moisture-wicking sports shirts; Money belts [clothing]; Monokinis; Morning coats; Motorcycle gloves; Motorcycle jackets;

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Motorcycle rain suits; Motorcycle riding suits; Motorcyclist boots; Motorcyclists' clothing; Motorcyclists' clothing of leather; Motorists' clothing; Mountaineering boots; Mountaineering shoes; Mufflers; Mufflers as neck scarves; Mufflers [clothing]; Mufflers [neck scarves]; Muffs; Muffs [clothing]; ; Mules; Muumuus; Nappy pants [clothing]; Neck scarfs [mufflers]; Neck scarves; Neck scarves [mufflers]; Neck tubes; Neck warmers; Neckbands; Neckerchiefs; Neckerchieves; Neckties; Neckwear; Negligees; Night gowns; Night shirts; Nightcaps; Nightdresses; Nightgowns; Nighties; Nightshirts; Nightwear; Nipple pasties; Niqabs; Non-slip socks; Non-slipping devices for boots; Non-slipping devices for footwear; Nurse dresses; Nurse overalls; Nurse pants; Nurses' uniforms; Nursing shoes; Oilskins [clothing]; One-piece clothing for infants and toddlers; One-piece playsuits; One-piece suits; Open-necked shirts; Outer clothing; Outer soles; Outerclothing; Outerclothing for boys; Outerclothing for girls; Outerclothing for men; Outerwear; Overalls; Overalls for infants and toddlers; Overcoats; Overshirts; Overshoes; Overtrousers; Over-trousers; Padded jackets; Padded pants for athletic use; Padded shirts for athletic use; Padded shorts for athletic use; Pajama bottoms; Pajamas; Pajamas (Am.); Pantaloons; Pantie-girdles; Panties; Pants; Pants (Am.); Pantsuits; Panty hose; ; Paper aprons; Paper clothing; Paper hats [clothing]; Paper hats for use as clothing items; Paper hats for wear by chefs; Paper hats for wear by nurses; Pareos; Pareus; Parkas; Party hats [clothing]; Pea coats; Peaked caps; Peaked headwear; Peaks (Cap -); Pedal pushers; Pedicure sandals; Pedicure slippers; Peignoirs; Pelerines; Pelisses; Petticoats; Petti-pants; Pinafore dresses; Pinafores; Pique shirts; Pirate pants; Plastic aprons; Plastic baby bibs; Plastic slippers; Platform shoes; Play suits; Playsuits [clothing]; Pleated skirts; Pleated skirts for formal kimonos (hakama); Plimsolls; Plus fours; Plush clothing; Pocket kerchiefs; Pocket squares; Pocket squares [clothing]; Pockets for clothing; Polar fleece jackets; Polo boots; Polo knit tops; Polo neck jumpers; Polo shirts; Polo sweaters; Ponchos; Pop socks; Pram suits; Printed t-shirts; Protective metal members for shoes and boots; Pullovers; Pullstraps for shoes and boots; Pumps [footwear]; Puttees; Puttees; Pyjamas; Pyjamas [from tricot only]; Quilted jackets [clothing]; Quilted vests; Rain boots; Rain coats; Rain hats; Rain jackets; Rain ponchos; Rain shoes; Rain slickers; Rain suits; Rain trousers; Rain wear; Raincoats; Rainproof clothing; Rainproof jackets; Rainshoes; Rainwear; Ramie shirts; Rash guards; Ready- made clothing; Ready-made linings [parts of clothing]; Ready-to-wear clothing; Referees uniforms; Religious garments; Removable collars; Replica football kits;

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Reversible jackets; Riding boots; Riding gloves; Riding Gloves; Riding jackets; Riding shoes; Riding trousers; Robes; Robes (Bath -); Roll necks [clothing]; Roller shoes; Romper suits; Rompers; Ruanas; Rubber fishing boots; Rubber shoes; Rubber soles for jikatabi; Rubbers [footwear]; Rugby boots; Rugby jerseys; Rugby shirts; Rugby shoes; Rugby shorts; Rugby tops; Running shoes; Running Suits; Running vests; Russian felted boots (Valenki); Sabots; Safari jackets; Sailing wet weather clothing; Sailor suits; Salopettes; -clogs; Sandals; Sandals and beach shoes; Sarees; Saris; Sarongs; Sash bands for kimono (obi);Sashes for wear; Scarfs; Scarves; School uniforms; Scrimmage vests; Sedge hats (suge-gasa); Serapes; Shampoo capes; Shapewear; Shawls; Shawls and headscarves; Shawls and stoles; Shawls [from tricot only]; Sheepskin coats; Sheepskin jackets; Shell jackets; Shell suits; Shields (Dress - ); Shift dresses; Shirt fronts; Shirt yokes; Shirt-jacs; Shirts; Shirts and slips; Shirts for suits; Shoe covers, other than for medical purposes; Shoe inserts for non-orthopedic purposes; Shoe soles; Shoe soles for repair; Shoe straps; Shoe uppers; Shoes; Shoes for casual wear; Shoes for foot volleyball; Shoes for infants; Shoes for leisurewear; Shoes soles for repair; Shoes with hook and pile fastening tapes; Short overcoat for kimono (haori); Short petticoats; Short sets [clothing]; Short trousers; Shortalls; Shorts; Shorts [clothing]; Short-sleeve shirts; Short-sleeved shirts; Short-sleeved T-shirts; Shoulder scarves; Shoulder straps for clothing; Shoulder wraps; Shoulder wraps [clothing]; Shoulder wraps for clothing; Shower caps; Shrugs; Silk clothing; Silk scarves; Silk ties; Singlets; Skating outfits; Ski and snowboard shoes and parts thereof; Ski balaclavas; bags; Ski boots; Ski gloves; Ski hats; Ski jackets; Ski pants; Ski suits; Ski suits for competition; Ski trousers; Ski wear; Skiing shoes; Skirt suits; Skirts; Skorts; Skull caps; Slacks; Sleep masks; Sleep pants; Sleep shirts; Sleeping garments; Sleepsuits; Sleepwear; Sleeved jackets; Sleeveless jackets; Sleeveless jerseys; Sleeveless pullovers; Sliding shorts; Slip-on shoes; Slipovers; Slipovers [clothing]; socks; Slipper soles; Slippers; Slippers made of leather; Slips; Slips [clothing]; Slips [underclothing]; Slips [undergarments]; Small hats; Smocks; Smoking jackets; Snap crotch shirts for infants and toddlers; Sneakers; Sneakers [footwear]; Snoods [scarves]; Snow boarding suits; Snow boots; Snow pants; Snow suits; Snowboard boots; Snowboard gloves; Snowboard jackets; Snowboard mittens; Snowboard shoes; Snowboard trousers; Snowsuits; Soccer bibs; Soccer boots; Soccer shirts; Soccer shoes; suspenders; Socks; Socks and stockings; Socks for infants and toddlers; Socks for men; Soles for footwear; Soles for

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japanese style sandals; Soles [Inner]; Spats; Spiked running shoes; Sport coats; Sport shirts; Sport shoes; Sport stockings; Sports bibs; Sports [Boots for -]; Sports bras; Sports caps; Sports caps and hats; Sports clothing; Sports clothing [other than golf gloves]; Sports footwear; Sports garments; Sports headgear [other than helmets]; Sports jackets; Sports jerseys; Sports jerseys and breeches for sports; Sports over uniforms; Sports overuniforms; Sports pants; Sports shirts; Sports shirts with short sleeves; Sports shoes; Sports singlets; Sports socks; Sports vests; Sports wear; Sportswear; Stiffeners for boots; Stiffeners for shoes; suspenders; Stockings; Stockings (Heel pieces for -); Stockings [sweat-absorbent]; Stockings (Sweat- absorbent -); Stoles; Stoles (Fur -); Strapless bras; Strapless brassieres; Straps (Gaiter -); Stretch pants; String fasteners for haori (haori-himo); Studs for football boots; Stuff jackets; Stuff jackets [clothing]; Suede jackets; Suit coats; Suits; Suits (Bathing -); Suits made of leather; Suits of leather; Sun hats; Sun visors; Sun visors [headwear]; Sundresses; Sunsuits; Surf wear; Surfwear; Suspender belts; Suspender belts for men; Suspender belts for women; Suspenders; Suspenders [braces]; Swaddling clothes; Sweat bands; Sweat bands for the head; Sweat bands for the wrist; Sweat bottoms; Sweat jackets; Sweat pants; Sweat shirts; Sweat shorts; Sweat suits; Sweat-absorbent socks; Sweat-absorbent stockings; Sweat-absorbent underclothing; Sweat-absorbent underclothing [underwear]; Sweat-absorbent underwear; Sweatbands; Sweaters; Sweatjackets; Sweatpants; Sweatshirts; Sweatshorts; Sweatsuits; Swim briefs; Swim caps; Swim shorts; Swim suits; Swim trunks; Swim wear for children; Swim wear for gentlemen and ladies; Swimming caps; Swimming caps [bathing caps]; Swimming costumes; Swimming suits; Swimming trunks; Swimsuits; Swimwear; Synthetic fur stoles; Tabards; Taekwondo suits; Taekwondo uniforms; Tail coats; Tailleurs; Tam o'shanters; Tams; Tank tops; Tankinis; Tank-tops; Tap pants; Tap shoes; Tartan kilts; Teddies; Teddies [underclothing]; Teddies [undergarments]; Tee-shirts; Tennis dresses; Tennis pullovers; Tennis shirts; Tennis shoes; Tennis shorts; Tennis skirts; Tennis socks; Tennis sweatbands; Tennis wear; Theatrical costumes; Thermal clothing; Thermal headgear; Thermal socks; Thermal underwear; Thermally insulated clothing; Thobes; Thong sandals; Thongs; Three piece suits [clothing]; Ties; Ties [clothing]; Tightening-up strings for kimonos (datejime); Tights; Tips for footwear; Toe boxes; ; Toe straps for Japanese style sandals [zori]; Toe straps for Japanese style wooden clogs; Toe straps for zori [Japanese style sandals]; Togas; Tongues for shoes and boots; Top coats; Top hats;

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Topcoats; Tops; Tops [clothing]; Toques [hats]; Track and field shoes; Track jackets; Track pants; Track suits; Tracksuit bottoms; Tracksuit tops; Tracksuits; Traction attachments for footwear; Trainers; Trainers [footwear]; Training shoes; Training suits; Trekking boots; Trench coats; Trenchcoats; Trews; Triathlon clothing; Trouser socks; Trouser straps; Trousers; Trousers for children; Trousers for sweating; Trousers of leather; Trousers shorts; Trunks; Trunks (Bathing -); Trunks being clothing; Trunks [underwear]; T-shirts; Tube tops; Tunics; Turbans; Turtleneck pullovers; Turtleneck shirts; Turtleneck sweaters; Turtleneck tops; Turtlenecks; Tutus; Tuxedo belts; Tuxedos; Twin sets; Umpires uniforms; Under garments; Under shirts; Underarm gussets [parts of clothing]; Underclothes; Underclothing; Underclothing (Anti-sweat -); Underclothing for women; Undergarments; Underpants; Underpants for babies; Undershirts; Undershirts for kimonos (juban); Undershirts for kimonos (koshimaki); Undershirts for kimonos [koshimaki]; Underskirts; Underwear; Underwear (Anti-sweat -); Underwear for women; Uniforms; Uniforms for commercial use; Uniforms for nurses; Union suits; Unitards; Uppers (Footwear -); Uppers for Japanese style sandals; Uppers of woven rattan for Japanese style sandals; Ushankas [fur hats]; Valenki [felted boots]; Veils; Veils [clothing]; Vest tops; Vests; Vests (Fishing -); Vests for use in barber shops and salons; Visors; Visors being headwear; Visors [clothing]; Visors [hatmaking]; Visors [headwear]; V-neck sweaters; Volleyball jerseys; Volleyball shoes; Waders; Waist belts; Waist cinchers; Waist strings for kimonos (koshihimo); Waistbands; Waistcoats; Waistcoats [vests]; Walking boots; Walking breeches; Walking shoes; Walking shorts; Warm up suits; Warm-up jackets; Warm-up pants; Warm-up suits; Warm-up tops; Water socks; Waterpolo caps; Waterproof boots; Waterproof boots for fishing; Waterproof capes; Waterproof clothing; Waterproof jackets; Waterproof outerclothing; Waterproof pants; Waterproof shoes; Waterproof suits for motorcyclists; Waterproof trousers; Water-resistant clothing; Waterskiing suits; Weather resistant outer clothing; Weatherproof clothing; Weatherproof jackets; Weatherproof pants; Wedding dresses; Wedding gowns; sneakers; Wellington boots; Wellingtons; Welts for footwear; Wet suits; Wet suits for surfing; Wet suits for water-skiing; Wet suits for water-skiing and sub-aqua; Wet suits for windsurfing; Wetsuit gloves; Wetsuits; Wetsuits for surface watersports; Wetsuits for surfing; Wetsuits for water-skiing; White coats for hospital use; Wimples; Wind coats; Wind jackets; Wind pants; Wind resistant jackets; Wind suits; Wind vests; Windcheaters; Wind-jackets; Windproof clothing; Windproof jackets; Wind-resistant jackets; Wind-

37 resistant vests; Windshirts; Winter boots; Winter coats; Winter gloves; Women's ceremonial dresses; Women's clothing; Women's foldable slippers; Womens' outerclothing; Women's shoes; Women's suits; Womens' underclothing; Womens' undergarments; Women's underwear; Wooden bodies for Japanese style clogs; Wooden main bodies of Japanese style wooden clogs; Wooden shoes; Wooden shoes [footwear]; Wooden supports of Japanese style wooden clogs; Woolen clothing; Woollen socks; Woollen tights; Woolly hats; Work boots; Work clothes; Work overalls; Work shoes; Working overalls; Woven clothing; Woven shirts; Wrap belts for kimonos (datemaki); Wraps [clothing]; Wrist bands; Wrist warmers; Wristbands; Wristbands [clothing]; Yashmaghs; Yashmaks; Yoga bottoms; Yoga pants; Yoga shirts; Yoga shoes; Yoga socks; Yoga tops; Yokes (Shirt -); Zoot suits; Zori.

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ANNEX 2

The First Earlier Mark Class 9 Video game software; Stands for handheld digital electronic devices, namely, cell phones; Virtual reality software; Virtual reality software for multimedia content; Computer software, namely, software development tools for the creation of computer- generated imagery and graphics for multimedia content and the purpose of entertainment; Downloadable computer software for multi-media smart phones; Downloadable computer software for network communications apparatuses; Downloadable computer software for portable media players; Downloadable computer software for wireless mobile devices; Electronic software for wireless devices; Downloadable software for use in software development, film production, television production, video production, and 3D animations, simulations, and visualizations; Computer programs and computer software for entertainment; Computer discs; Augmented reality software; Augmented reality software for use in mobile devices for integrating electronic data with real world environments for the purposes of entertainment; Computer software, namely, software development tools for the creation of computer-generated imagery and graphics for the production of content for virtual worlds and 3D platforms; Computer software, namely, software development tools for the creation of computer-generated imagery and graphics for use in architecture, product design, and manufacturing; Downloadable software for the creation of fully immersive and interactive animations, simulations, and visualizations for use in architecture, product design, and manufacturing; Virtual reality software for use in simulations; Computer software, namely, software development tools for the creation of computer-generated imagery and graphics for the production of motion pictures, television shoes, videos, 3D animations, 3D simulations, 3D visualizations, virtual reality motion pictures, and virtual reality television shows; Computer software; computer games; computer software for personal computers, home consoles and arcade-based consoles; Computer game software for personal computers, home video game consoles and arcade based video game consoles; Computer game programs; Computer game software; Computer programs for interactive games; Computer software for interactive games; Discs featuring computer game software; Discs featuring video game software; Video game software; Electronic game software

39 for wireless devices; Downloadable computer game software for multi-media smart phones; Downloadable computer game software for network communications apparatuses; Downloadable computer game software for portable media players; Downloadable computer game software for wireless mobile devices; Downloadable software for use in video game development, film production, television production, video production, and 3D animations, simulations, and visualizations; Computer software, namely, game engine software for video game development and operation; Virtual reality game software; Virtual reality computer software for multimedia content; Augmented reality game software; Augmented reality computer software for use in mobile devices for integrating electronic data with real world environments for the purposes of entertainment; Computer software, namely, software development tools for the creation of computer-generated imagery and graphics for the production of video games, motion pictures, television shows, videos, 3D animations, 3D simulations, 3D visualizations, virtual reality video games, virtual reality motion pictures, virtual reality television shows, augmented reality video games, augmented reality motion pictures, augmented reality television shows, computer software applications, downloadable and content for virtual worlds and 3D platforms.

Class 35 Providing online retail relating to computer software; Providing online retail relating to video games software; Providing online retail relating to computer games software; Providing online retail relating to clothing; Providing online retail relating to footwear; Electronic commerce services, namely, providing on-line retail relating to computer software, games, and clothing.

Class 41 Entertainment services, namely, providing on-line computer games; Providing online virtual reality software; Entertainment services provided on-line from a computer network; Organization of competitions; Arranging and conducting live, interactive tournaments featuring entertainment software; Live events, including fan gatherings and conferences, and organized interactive competitions such as e-sports; Entertainment services; Entertainment services, namely, providing on-line computer games, tips and strategies for computer entertainment software and news concerning computer entertainment software; Entertainment services, namely, providing on-line

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entertainment software, tips and strategies for computer games, entertainment software and news concerning computer games and entertainment software; Electronic, computer and video games services; Arranging, conducting and presenting competitions, contests, games and tournaments; Publication of games and entertainment software; Providing online augmented reality games and augmented reality software; Electronic games services provided via internet; Computer games services provided online; Rental of video games; Game services provided online from a computer network; Providing online virtual reality games; Providing online augmented reality games; Providing information on entertainment and amusement; Providing online computer games; Providing information related to tips, strategies and news concerning computer games; Providing interactive multiplayer games services for games played over computer networks and global communications networks; Providing computer games which can be accessed, played and downloaded over computer networks and global communications networks; Providing video games which can be accessed, played and downloaded over computer networks and global communications networks; Organization of computer game competitions; Arranging and conducting live, interactive gaming tournaments featuring video games; Conducting of live sports events(including fan gatherings and conferences, and organized video game competitions such as e-sports); Arranging, conducting and presenting competitions for e-sports; Arranging, conducting and presenting contests for e-sports; Arranging, conducting and presenting game events; Publication of computer games software; Arranging and conducting educational conferences; Organizing online educational exhibitions for non-business and non-commercial purposes; Organizing online educational conferences for non-business and non- commercial purposes; Organizing online cultural exhibitions for non-business and non-commercial purposes; Organizing online cultural conferences for non-business and non-commercial purposes; Organizing online sports exhibitions for non-business and non-commercial purposes; Organizing online sports conferences for non- business and non-commercial purposes; Organizing online entertainment-related exhibitions for non-business and non-commercial purposes; Organizing online entertainment-related conferences for non-business and non-commercial purposes; Providing on-line electronic publications (not downloadable); production of shows; educational services; organization of shows (impresario services); lending libraries; distribution of cinematographic films; providing sports facilities; animal training;

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modeling for artists; operating lotteries; Providing a website featuring blogs and non- downloadable publications in the nature of articles in the field of gaming; Live events, including fan gatherings and conferences, and organized video game competitions such as e-sports; Electronic, computer and video games services; Publication of games. provision, production, development, composition, presentation, distribution, syndication and networking of entertainment, films, audio and video recordings, compact discs, CD ROMs, DVDs and programs.

Class 42 Computer development and design services for computer software; software as a service [SaaS] services featuring entertainment software for computers and computer games; software as a services [SaaS] services, namely hosting entertainment software for use by others in computer gaming; computer programming; updating of computer software; rental of computer software; maintenance of computer software; graphic arts design; Computer development and design services for computer game software (design and develop software and content for the electronic entertainment apparatus including but not limited to the personal computer (PC) and gaming console devices); Computer services, namely, hosting an interactive website for on-line discussions and blogs, sharing on-line content, new media content, and on-line web links to other website; Computer services; writing, designing, developing, production of computer software, computer programmes and computer games; electronic storage of information and data; providing information and advice in relation to the aforesaid service.

Class 45 Computer software licensing; Consultancy related to computer software licensing; Online social networking services; Providing online information in the field of law; Film, television, video, music and image licensing.

The Second Earlier Mark Class 16 Printed matter, namely, instruction and user manuals and reference guides, in the fields of computer games and computer gaming software; Computer game instruction manuals and hint books; Comic books.

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Class 25 T-shirts; Hooded sweatshirts; Hats; Caps.

Class 28 Toys, games, and playthings; Toy action figures.

Class 41 Providing a website featuring blogs and non-downloadable publications in the nature of articles in the field of gaming.

Class 42 Computer services, namely, hosting an interactive website for on-line discussions and blogs, sharing on-line content, new media content, and on-line web links to other websites.

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