OPPOSITION No B 2 527 730

Coroos Conserven B.V., Middenweg 1, 4421 JG Kapelle, the Netherlands, (opponent), represented by Novagraaf Nederland B.V., Hoogoorddreef 5, 1101 BA Amsterdam, the Netherlands (professional representative)

a g a i n s t

Disruptive Alpha S.L., Camino de Santa Ana s/n, 46870 Ontinyent (Valencia), Spain (applicant), represented by Leggroup, C/Campoamor 13 1º, 28004 Madrid, Spain, (professional representative).

On 18/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 527 730 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 13 631 395. The opposition is based on Benelux trade mark registration No 837 744. 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.

1. The goods

The goods on which the opposition is based are the following:

Class 29:        Preserved, deep frozen, dried and cooked fruits; compote.

Class 31:        Fresh fruits.

Class 32:        Fruit drinks and fruit juices.

The contested goods after a limitation are the following:

Class 29:        Preserved, frozen, dried and cooked vegetables, milk and milk products; Milk drinks containing fruits.

Class 30:        Cocoa; Cereal preparations; Bread, pastry and confectionery; Edible ices; Snack bars containing a mixture of seeds, nuts and dried fruits; fruitgums; Confectionery having liquid fruit fillings; Chewable sweets with liquid fruit fillings; Fruited scones, Tea-based beverages with fruit flavoring; Flavourings made from fruits; Biscuits containing fruit; Biscuits flavoured with fruit; Fruit ices; Filled yeast dough with fillings consisting of fruits; Fruit breads, Fruit jellies; Pastries containing fruit; Iced fruit cakes; Fruit cakes; Sweet fruit cakes; Raisins and Spices; Fruit gum pastilles; Fruit flavoured water ices in the form of lollipops; Fruit filled pastry products; Tea flavoured with fruit; Fruit tea.

As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services are not regarded as being similar or dissimilar to each other on the ground that they appear in the same or different classes under the Nice Classification.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 29

The contested milk products and milk drinks containing fruits are similar to the opponent’s fruit drinks. They have the same purpose. They can coincide in end user and distribution channels. Furthermore, they are in competition.

The contested preserved, frozen, dried and cooked vegetables are lowly similar to the opponent’s preserved, deep frozen, dried and cooked fruits. They can coincide in producer, end user and distribution channels.

The contested milk is lowly similar to the opponent’s fruit drinks as they can coincide in end user and distribution channels. Furthermore, they are in competition.

Contested goods in Class 30

The contested raisins and spices are highly similar to the opponent’s preserved fruits. They have the same nature and purpose. They can coincide in producer, end user and distribution channels. Furthermore, they are both complementary and in competition.

The contested tea flavoured with fruit; fruit tea, tea-based beverages with fruit flavouring are similar to the opponent’s fruit drinks. They can coincide in producer, end user and distribution channels. Furthermore, they are in competition.

The contested confectionery; confectionery having liquid fruit fillings; fruitgums; chewable sweets with liquid fruit fillings; fruit jellies; fruit gum pastilles; snack bars containing a mixture of seeds, nuts and dried fruits are similar to a low degree to the opponent’s preserved fruits. They can coincide in producer, end user and distribution channels.

The contested cocoa; cereal preparations; bread; pastry; fruit filled pastry products; fruit breads, biscuits containing fruit; fruited scones; biscuits flavoured with fruit; pastries containing fruit; sweet fruit cakes; fruit cakes; filled yeast dough with fillings consisting of fruits; flavourings made from fruits; fruit ices; iced fruit cakes; fruit flavoured water ices in the form of lollipops; edible ices are dissimilar to the opponent’s goods in Classes 29, 31 and 32. They have a different nature. They are neither complementary nor are they in competition and do not normally coincide in usual origin. Their distribution channels and packaging can be different as well.

2. 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 similar (to various degrees) are directed at the public at large. The degree of attention is considered to be average.

3. The signs

	FRUITS-2-GO
Earlier trade mark	Contested sign

The relevant territory is the Benelux. The relevant languages are French, Dutch and German.

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).

The earlier mark is a figurative mark containing the following verbal elements: ‘Servero’, ‘Fruit’, ‘to’ and ‘Go’. They are depicted against a rectangle background which has two ribbons in its bottom part. All words are represented in a fairly standard title-case. The word ‘Servero’ will be perceived as an invented word by the public in the Benelux countries and is therefore distinctive. By contrast the words ’Fruit to Go’ will be understood as these are basic English words. In addition, the word ‘FRUIT’, and its modified versions, appears in the languages spoken in the relevant territory (i.e. ‘FRUIT’ in French/Dutch and ‘FRUCHT’ in German). It should be noted that the relevant public will most likely perceive the words ‘Fruit to Go’ as a slogan which would mean that one can buy fruit and go away. The expression ‘FRUIT TO GO’ will be lowly distinctive with regard to the relevant goods. Also the words ‘Fruit’, ‘to’ and ‘Go’, when seen separately, will be perceived as being lowly distinctive for the goods in question.

The contested sign is a word mark ‘FRUITS-2-GO’. There are two hyphens in the contested sign, between the plural word ‘FRUITS’ and the numeral ‘2’ and between the numeral ‘2’ and the word ‘GO’. Concerning the numeral ‘2’, it could be perceived by part of the public as the word ‘to’. Nowadays, especially in marketing language, it is not uncommon to use the numeral ‘2’ to replace the English preposition ‘to’. In the present case at least part of the relevant public, when being confronted with the contested sign, will perceive it as ‘to’ because the combination of the words, namely ‘FRUITS TO GO’, could create an expression that would be coherent in basic English. For the rest of the public, it will be perceived as the number 2.

In the earlier mark the expression ‘FRUIT TO GO’ is more dominant, due to its size, than the word ‘SERVERO’.

Visually, the signs coincide in the verbal elements ‘FRUIT’ and ‘GO’. However, they differ in the verbal elements ‘SERVERO’ (i.e. the distinctive part) and ‘TO’, and the letter ‘S’ which are present in the earlier mark, the numerical element ‘2’ and two hyphens in the contested sign. In addition the signs differ in some figurative elements of the earlier mark.

Therefore, the signs are visually similar to a 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 letters ‛FRUIT’ and ‛GO’, present identically in both signs. For those who will perceive the numerical element ‘2’ as ‘to’, the signs will coincide also in this element. The pronunciation differs in the sound of the letters ‛SERVERO’ of the earlier sign (i.e. its distinctive part), which has no counterpart in the contested mark. They differ also in the letter ‘S’ in the contested sign and for part of the public in the numerical ‘2’.

Therefore, the signs are aurally similar to a low degree.

Conceptually, the signs coincide in the lowly distinctive elements ‘FRUIT’ and ‘to/2 go’. Therefore, they are similar to a low degree.

4. 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, the earlier trade mark as a whole has 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 must be seen as normal, despite the presence of some lowly distinctive elements (e.g. ‘FRUIT TO GO’) in the mark as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The Court has stated that likelihood of confusion must be appreciated globally, taking into account all the factors relevant to the circumstances of the case; this appreciation depends on numerous elements and, in particular, on the degree of recognition of the mark on the market, the association that the public might make between the two marks and the degree of similarity between the signs and the goods and services (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).

Furthermore, evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).

In the present case, the goods are partly similar to various degrees and partly dissimilar, whereas the conflicting marks have only a low degree of visual, aural and conceptual similarity. The relevant public, as explained above, will have an average degree of attention. In addition, the distinctiveness of the earlier mark is only average.

As was concluded above in section c) of this decision, the earlier right’s ‘Servero’ element is the most distinctive part of the sign in question. Although this element is non-dominant, it remains perceptible due to its positioning in relation to all the earlier right’s other previously described elements. Given the presence of the numerical element ‘2’ and the two hyphens in the contested sign, the Opposition Division is of the opinion that the differences between the signs in contention outweigh their similarities to the point of creating the necessary distance needed to safely exclude any likelihood of confusion between the marks.

Considering all the above, there is no likelihood of confusion on the part of the relevant public. Therefore, the opposition must be rejected.

COSTS

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.

The Opposition Division

Jessica LEWIS

Michal KRUK

Judit NÉMETH

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.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.