OPPOSITION No B 2 346 727
Kaufland Warenhandel GmbH & Co. KG, Rötelstr. 35, 74172 Neckarsulm, Germany (opponent), represented by Boehmert & Boehmert Anwaltspartnerschaft mbB – Patentanwälte Rechtsanwälte, Hollerallee 32, 28209 Bremen, Germany (professional representative)
a g a i n s t
Cido Grupa, Sia, Ostas street 4, Riga, 1034, Latvia (applicant), represented by Cido Grupa, Sia, Anete Kupča, Ostas street 4, Riga, 1034, Latvia (employee representative).
On 26/01/2017, the Opposition Division takes the following
1. Opposition No B 2 346 727 is rejected in its entirety.
2. The opponent bears the costs.
The opponent filed an opposition against some of the goods and services of European Union trade mark application No 12 351 251, namely against all the goods in Classes 32 and 33. The opposition is based on international trade mark registration No 798 212 designating the European Union. The opponent invoked Article 8(1)(b) EUTMR.
LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) EUTMR
A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.
- The goods
The goods on which the opposition is based are, inter alia, the following:
Class 32: Beers; mineral and aerated waters and other non-alcoholic drinks; fruit beverages and fruit juices; syrups and other preparations for making beverages.
Class 33: Alcoholic beverages (except beers).
The contested goods are the following:
Class 32: Beers; Mineral and aerated waters and other non-alcoholic beverages; Fruit beverages and fruit juices; Syrups and other preparations for making beverages.
Class 33: Alcoholic beverages (except beers).
The contested goods are identically contained in the opponent’s list of goods (with slightly different wording).
- Relevant public — degree of attention
The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.
In the present case, the goods found to be identical are directed at the public at large and partly also at business customers with specific professional knowledge or expertise (e.g. preparations for making beverages). The degree of attention is average.
- The signs
Earlier trade mark
The relevant territory is the European Union.
The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23).
Both signs are figurative.
The earlier mark consists of the word ‘PREMIUM’, written in white upper case letters and placed within a dark stripe. Above the word ‘PREMIUM’, there is a figurative element composed of two rectangles and two triangles, all in dark colour, within a white rectangle with a black outline. The figurative element made up of two rectangles and two triangles may be perceived as a stylised letter ‘K’ or, simply, as a random combination of geometrical figures. All these elements are represented on a background in grey and white diagonal shades.
The contested sign consists of the white, highly stylised letters ‘PQ’, set against a black circular background with a thin white stripe in the form of a circle. These elements are surrounded by a thick white circle with a black outer line and the word ‘PREMIUM’ written in black standard letters at the top and the word ‘QUALITY’ at the bottom. Between these words, there are two black dots.
The element ‘PREMIUM’, present in both signs, will be understood in the relevant territory, because it is often used in commerce to indicate a higher level of quality Consequently, as the relevant public is used to perceiving this word as a laudatory term indicating that the goods and services in question are excellent or of a superior quality, the impact of this element is limited (22/05/2012, T-60/11, Suisse Premium, EU:T:2012:252, §§ 46, 48 and 49; see also decision of 14/11/2016, R 1310/2015-2, Csíki Sör / CIUC PREMIUM et al., § 49 and § 71). In the cited judgement, the Court stated that necessarily the English-speaking part of the public understands the meaning of this word (§ 50). Furthermore, referring to the widespread use of the word ‘PREMIUM’, in particular in relation to foodstuffs, to describe the qualities of the goods, the Court rejected the claim that this word would not be understood by the non-English-speaking consumers in the European Union (§ 48 and § 49).
The part of the public speaking English or other languages in which similar equivalents exist (e.g. ‘Qualität’ in German’, ‘qualité’ in French) will understand the meaning of the English word ‘QUALITY’ meaning, inter alia, ‘a distinguishing characteristic, property, or attribute’ or ‘degree or standard of excellence, esp a high standard’ (www.collinsdictionary.com). This part of the public will pay less attention to the words ‘PREMIUM QUALITY’, perceiving them as a laudatory message about the superior standard of the goods.
Neither of the signs has any element that could be considered more dominant (visually eye-catching) than other elements.
Visually, the signs coincide in the element ‘PREMIUM’, which nevertheless is of limited distinctiveness. They differ in the remaining elements of the signs, namely, the figurative elements of the earlier mark and the word ‘QUALITY’ which, if understood, will attract less attention, the letters ‘QP’ and the figurative elements of the contested sign.
Therefore, the signs are visually similar to a very low degree.
Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the word ‛PREMIUM’, present in both signs, although, the impact of this coincidence on the consumers is limited. The pronunciation differs in the sound of the letters ‘PQ’ and of the word ‛QUALITY’ present in the contested sign. For the consumers perceiving the figurative element of the earlier mark made up of two rectangles and two triangles as a stylised letter ‘K’, the pronunciation also differs in the sound of this letter. Consequently, the signs are aurally similar at most to a low degree as the coincidence in the sound of the word ‘PREMIUM’ cannot be given much weight because of its laudatory meaning.
Conceptually, for the part of the public only understanding the meaning of the word ‘PREMIUM’, commonly used to indicate that something is of superior quality, and the expression ‘QUALITY PREMIUM’ as a laudatory message about the superior standard of the goods, the signs are conceptually similar to an average degree as the signs will be associated with a similar meaning although conveyed by the elements which cannot be given much weight.
A mere combination of simple geometric forms in the earlier mark does not convey any meaning. However, if seen as a stylized representation of the letter ‘K’, this element will be perceived with the concept of this letter of the alphabet.
For the part of the public perceiving the letter ‘K’ in the earlier mark or perceiving the word ‘QUALITY’ as a meaningless term, the degree of conceptual similarity is reduced to low.
As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.
- Distinctiveness of the earlier mark
The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.
The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.
Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, despite the presence of a the element ‘PREMIUM’ with a limited distinctiveness, the earlier mark also contains other elements which have no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark as a whole must be seen as normal.
- Global assessment, other arguments and conclusion
The goods are identical. The signs are visually and aurally similar only to a low degree. Conceptually, depending on the perception of the public, the signs are similar to a low or to an average degree. These similarities result from the coincidence in the word ‘PREMIUM’ which is of limited distinctiveness. This word is widely used for marketing purposes. For this reason, the consumers, who are used to seeing this laudatory word on products, will focus their attention on other elements of the signs to distinguish the goods from one undertaking from those of the other.
Therefore, the presence on the market of the signs in question is not likely to confuse the consumers only because they both contain the word ‘PREMIUM’ which is widely exploited in commerce for marketing purposes and has a limited distinctive character. The marks seen as a whole, together with their more distinctive elements, do not create sufficient impression of similarity between them. When seen as a whole, the marks are not perceived as sufficiently similar to cause confusion.
Considering all the above, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.
According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.
Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.
According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, the costs to be paid to the applicant are the costs of representation which are to be fixed on the basis of the maximum rate set therein. In the present case the applicant did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.
The Opposition Division
Begoña URIARTE VALIENTE
According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.