OPPOSITION No B 2 679 689

Frutas Plasencia, S.L.,Calle Sánchez Coello, 23, 46511 Benifairo de les Valls (Valencia), Spain (opponent), represented by Kapler, Calle Orense, 10, 1º Of. 12, 28020 Madrid, Spain (professional representative)

a g a i n s t

Ayyo Vertriebs GmbH, Johanniskirchstr. 100, 45329 Essen, Germany (applicant), represented by Cbdl Patentanwälte, Königstr. 57, 47051 Duisburg, Germany (professional representative).

On 30/08/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 679 689 is partially upheld, namely for the following contested goods:

Class 29:  Sports nutrition, included in class 29, in particular nut and protein products; Apple purée; Dates; Preserved beans; Curd; Pulses, preserved; Peanut butter; Peanuts, prepared; Gherkins; Fruit preserved in alcohol; Fruit chips; Fruit jellies; Fruit pulp; Fruit salads; Fruit-based snack food; Cooked fruits; Boiled vegetables; Cooked fruits; Jellies; Canned vegetables; Vegetable salads; Vegetables dried; Dried fruit; Ginger jam; Yoghurt; Vegetable soup preparations; Coffee creamers; Chocolate nut butter; Crystallized fruits; Frosted fruits; Potato chips; Potato flakes; Potato dumplings; Potato fritters; Cheese products; Caviar; Kefir [milk beverage]; Hummus [chickpea paste]; Coconut, desiccated; Fruit, stewed; Jams; Preserved fruits; Preserved vegetables; Preserved fruit; Kimchi [fermented vegetable dish]; Lentils, preserved; Ground almonds; Marmalade; Milk; Milk beverages, milk predominating; Milk products; Whey; Prepared nuts; Canned fruits; Fruit salads; Olives, preserved; Vegetable juices for cooking; Piccalilli; Pickles; mushrooms, preserved; Cranberry sauce (compote); Curds; Raisins; Cream [dairy products]; Sauerkraut; Fruit peel; Whipped cream; Chocolate-coated, sugar-coated or glazed fruits; Chocolate-coated, sugar-coated or glazed fruits; Tahini [sesame seed paste]; Soya beans, preserved, for food; Soya milk [milk substitute]; Frozen fruits; Fruits (frozen-); Tofu; Tomato purée; Tomato juice for cooking; Truffles, preserved; Onions, preserved.

Class 30: Sports nutrition (included in class 30), including muesli bars and glucose products; Seaweed [condiment]; Sweetmeats [candy];; Chow-chow [condiment]; Chutneys [condiments]; Curry [spice]; Iced tea; Peanut confectionery;; Fondants; Fruit sauces;; Fruit jellies [confectionery]; Tea-based beverages; Spices; Condiments; Cloves [spice]; Honey; Ginger [spice]; Yoghurt (Frozen -) [confectionery ices]; Coffee; Artificial coffee; Vegetal preparations for use as coffee substitutes; Coffee-based beverages; Cocoa-based beverages; Candy for food; Catsup;; Sugar confectionery; Infusions, not medicinal; Garden herbs, preserved [seasonings]; Decorations for cakes [edible]; Turmeric; Liquorice [confectionery]; Stick liquorice [confectionery]; Almond confectionery; Marzipan; Almond paste; Syrups and treacles; Syrups and treacles;; Coffee beverages with milk; Cocoa beverages with milk; Chocolate beverages with milk; Nutmeg; Peppers (seasonings); Lozenges [confectionery]; Pepper; Mint for confectionery; Peppermint candy; Peppers [seasonings]; Relishes; Saffron [seasoning]; Dressings for salad; Sauces (spices); Chocolate; Drinking chocolate; Allspice; Celery salt; Mustard; Paste (Soya bean -) [condiment]; Soya sauce; Sherbets [ices]; Sauces [condiments]; Sweet-products; Tea; Tomato sauce; Spices; Chicory [coffee substitute]; Cinnamon [spice]; Pralines; Confectionery for decorating Christmas trees;

Class 32: Non-alcoholic fruit extracts; Fruit juice beverages (Non-alcoholic -); Non-alcoholic beverages; Non-alcoholic honey-based beverages; Aperitifs, non-alcoholic; Cider, non-alcoholic; Beer; Beer wort; Powders for effervescing beverages; Pastilles for effervescing beverages; Cocktails, non-alcoholic; Milk (Peanut -) [non-alcoholic beverage]; Mineral water (Preparations for making -); Aerated water (Preparations for making -); Essences for making beverages; Fruit nectars, non-alcoholic; Juices; Vegetable juices [beverages]; Hops (Extracts of -) for making beer; Ginger ale; Energy Drinks, Sports drinks and isotonic drinks (included in class 32); Aerated water; Kvass (non-alcoholic beverages); Lemonades; Syrups for lemonade; Lithia water; Malt beer; Malt wort; Almonds (Milk of -) [beverage]; Orgeat; Mineral water [beverages]; Whey beverages; Must; Preparations for making beverages; Liqueurs (Preparations for making -); Sarsaparilla [non-alcoholic beverage]; Seltzer water; Syrups for beverages; Soda water; Sherbets [beverages]; Table waters; Tomato juice [beverage]; Grape must, unfermented; Waters [beverages].

2.        European Union trade mark application No 14 819 825 is rejected for all the above goods. It may proceed for the remaining goods.

3.        Each party bears its own costs.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application ‘MINEL’ No 14 819 825 in Classes 29, 30 and 32. The opposition is based on European Union trade mark registration No 9 802 191. 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, dried and cooked fruits and vegetables; Jellies, jams, compotes.

Class 31: Agricultural, horticultural and forestry products and grains, not included in other classes; Fresh fruit and vegetables.

Class 32: Fruit drinks, fruit juices; Syrups and other preparations for making beverages.

The contested goods are the following:

Class 29: Sports nutrition, included in class 29, in particular nut and protein products; Weed extracts for food; Alginates for food; Apple purée; Oysters, not live; Dates; Preserved beans; Curd; Eggs; Yolk of eggs; Powdered eggs; Albumen for food; White of eggs; Pulses, preserved; Peanut butter; Peanuts, prepared; Gherkins; Salted fish; Fish, preserved; Fish (not live); Fish fillets; Foods made from fish; Canned fish; Isinglass for food; Fish meal for human consumption; Fruit preserved in alcohol; Fruit chips; Fruit jellies; Fruit pulp; Fruit salads; Fruit-based snack food; Prawns, not live; Cooked fruits; Boiled vegetables; Cooked fruits; Jellies; Canned vegetables; Vegetable salads; Toasted laver; Vegetables dried; Dried fruit; Herrings; Lobsters, not live; Ginger jam; Yoghurt; Vegetable soup preparations; Coffee creamers; Chocolate nut butter; Tripe; Crystallized fruits; Frosted fruits; Potato chips; Potato flakes; Potato dumplings; Potato fritters; Cheese products; Casein for food; Caviar; Kefir [milk beverage]; Hummus [chickpea paste]; Snacks (included in class 29); Coconut, desiccated; Coconut oil; Fruit, stewed; Jams; Preserved fruits; Preserved vegetables; Preserved fruit; Crayfish, not live; Crustaceans, not live; Salmon; Spiny lobsters, not live; Kimchi [fermented vegetable dish]; Lentils, preserved; Corn oil; Ground almonds; Marmalade; Milk; Milk beverages, milk predominating; Milk products; Whey; Mussels (not live); Prepared nuts; Canned fruits; Fruit salads; Edible oils; Olives, preserved; Olive oil for food; Palm kernel oil for food; Palm oil for food; Pectin for culinary purposes; Vegetable juices for cooking; Piccalilli; Pickles; mushrooms, preserved; Pollen prepared as foodstuff; Cranberry sauce (compote); Albumen for culinary purposes; Curds; Raisins; Cream [dairy products]; Anchovy; Sardines; Sauerkraut; Fruit peel; Shellfish, not live; Ham; Whipped cream; Snail eggs for consumption; Chocolate-coated, sugar-coated or glazed fruits; Chocolate-coated, sugar-coated or glazed fruits; Sea cucumbers (not live); Tahini [sesame seed paste]; Shrimps, not live; Soya beans, preserved, for food; Soya milk [milk substitute]; Tuna fish; Frozen fruits; Fruits (frozen-); Tofu; Tomato purée; Tomato juice for cooking; Truffles, preserved; Onions, preserved.

Class 30: Sports nutrition (included in class 30), including muesli bars and glucose products; Seaweed [condiment]; Aniseed; Flavourings, other than essential oils, for beverages; Flavorings, other than essential oils; Wheat flour; Flavourings, other than essential oils, for cakes; Baking powder; Pastries; Beer vinegar; Thickening agents for cooking foodstuffs; Ice cream (Binding agents for -); Cookies; Bean meal; Sweetmeats [candy]; Buns; Bread; Unleavened bread; Sandwiches; Petit-beurre biscuits; Chow-chow [condiment]; Chutneys [condiments]; Couscous [semolina]; Curry [spice]; Custard; Desserts, consisting essentially of pasta; Ice cream; Iced tea; Peanut confectionery; Essences for foodstuffs, except etheric essences and essential oils; Vinegar; Vermicelli [noodles]; Ready-made dishes containing pasta; Meat tenderizers, for household purposes; Meat pies; Meat gravies; Fondants; Fruit sauces; Spring rolls; Pastries; Royal jelly for human consumption (not for medical purposes); Fruit jellies [confectionery]; Grits; Husked barley; Pearl barley; Barley meal; Barley (Crushed -); Tea-based beverages; Chips [cereal products]; Cereals; Cereal-based snack food; Spices; Condiments; Cloves [spice]; glucose for food; Gluten for food; Semolina; Groats for human food; Crushed oats; Oat flakes; Oatmeal; Husked oats; Halvah; Yeast in pill form, not for medical use; Honey; Ginger [spice]; Yoghurt (Frozen -) [confectionery ices]; Coffee; Artificial coffee; Vegetal preparations for use as coffee substitutes; Coffee flavorings [flavourings]; Coffee-based beverages; Cocoa; Cocoa products; Cocoa-based beverages; Candy for food; Capers; Caramels; Potato flour; Chewing gum not for medical purposes; Cookies; Catsup; Gluten for food; Biscuits; Cooking salt; Sugar confectionery; Salt for preserving foodstuffs; Crackers; Infusions, not medicinal; Cakes; Garden herbs, preserved [seasonings]; Cake powder; Cake dough; Decorations for cakes [edible]; Ice; Turmeric; Liquorice [confectionery]; Stick liquorice [confectionery]; Gingerbread; Maize, milled; Maize, roasted; Maize flakes; Grits; Maize flour; maize samp; Macaroni; Macaroons [pastry]; Maltose; Malt for human consumption; Malt biscuits; Malt extract for food; Maltose; Almond confectionery; Marzipan; Almond paste; Mayonnaise; Sea water for cooking; Flour for food; Farinaceous foods; Syrups and treacles; Syrups and treacles; Gruel, with a milk base, for food; Coffee beverages with milk; Cocoa beverages with milk; Chocolate beverages with milk; Flour-milling products; Nutmeg; Muesli; Oat-based food; Peppers (seasonings); Noodles; Breadcrumbs; Pasta; Pies; Pasty; Lozenges [confectionery]; Petits fours [cakes]; Pancakes; Pepper; Gingerbread; Mint for confectionery; Peppermint candy; Pide (flat bread); Peppers [seasonings]; Pizza; Popcorn; Bee glue (propolis) for human consumption; Puddings; Popcorn; Quiches; Ravioli; Rice; Rice cakes; Rice-based snack food; Relishes; Ice, natural or artificial; Coffee (Unroasted -); Saffron [seasoning]; Sago; Whipped cream (Preparations for stiffening -); Dressings for salad; Salt; Sandwiches; Sauces (spices); Leaven; Chocolate; Drinking chocolate; Allspice; Celery salt; Bread rolls; Mustard; Mustard meal; Paste (Soya bean -) [condiment]; Soya flour; Soya sauce; Sherbets [ices]; Sauces [condiments]; Spaghetti; Edible ices; Powders for ice cream; Baking soda [bicarbonate of soda for baking purposes]; Food starch; Starch for food; Star aniseed; Sushi; Sweeteners (Natural -); Sweet-products; Tabbouleh; Tacos; Tapioca; Tapioca flour; Tea; Ferments for pastes; Farinaceous food pastes; Tomato sauce; Tarts; Tortillas; Glucose for food; Vanilla [flavoring] [flavouring]; Vanillin [vanilla substitute]; Waffles; Wraps (pasta); Sausage binding materials; Spices; Aromatic preparations for food; Chicory [coffee substitute]; Cinnamon [spice]; Pralines; Confectionery for decorating Christmas trees; Rusks.

Class 32: Non-alcoholic fruit extracts; Fruit juice beverages (Non-alcoholic -); Non-alcoholic beverages; Non-alcoholic honey-based beverages; Aperitifs, non-alcoholic; Cider, non-alcoholic; Beer; Beer wort; Powders for effervescing beverages; Pastilles for effervescing beverages; Cocktails, non-alcoholic; Milk (Peanut -) [non-alcoholic beverage]; Mineral water (Preparations for making -); Aerated water (Preparations for making -); Essences for making beverages; Fruit nectars, non-alcoholic; Juices; Vegetable juices [beverages]; Hops (Extracts of -) for making beer; Ginger ale; Energy Drinks, Sports drinks and isotonic drinks (included in class 32); Aerated water; Kvass (non-alcoholic beverages); Lemonades; Syrups for lemonade; Lithia water; Malt beer; Malt wort; Almonds (Milk of -) [beverage]; Orgeat; Mineral water [beverages]; Whey beverages; Must; Preparations for making beverages; Liqueurs (Preparations for making -); Sarsaparilla [non-alcoholic beverage]; Seltzer water; Syrups for beverages; Soda water; Sherbets [beverages]; Table waters; Tomato juice [beverage]; Grape must, unfermented; Waters [beverages]. 

An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods.

The term ‘in particular’ ‘including’, used in the applicant’s list of goods, indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (see the judgment of 09/04/2003, T-224/01, Nu-Tride, EU:T:2003:107).

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

Preserved, dried and cooked fruits and vegetables; jellies, jams, compotes are identically contained in both lists of goods,including synonims.

The contested frozen fruits; fruits (frozen-) are included in the broad category of the opponent’s preserved, fruits. Therefore, they are identical.

The contested apple puré; preserved beans; pulses, preserved; peanut butter ;peanuts, prepared; fruit preserved in alcohol; fruit chips; fruit-based snack food; boiled vegetables; canned vegetables; vegetables dried; dried fruit; crystallized fruits; frosted fruits; potato chips; potato flakes; potato dumplings; potato fritters; hummus [chickpea paste]; coconut, desiccated; fruit, stewed; vegetable soup preparations; chocolate nut butter; kimchi [fermented vegetable dish]; lentils, preserved; prepared nuts; canned fruits; olives, preserved; vegetable juices for cooking; piccalilli; pickles; mushrooms, preserved; sauerkraut; chocolate-coated, sugar-coated or glazed fruits; chocolate-coated, sugar-coated or glazed fruits; tahini [sesame seed paste]; soya beans, preserved, for food; tofu; tomato purée; tomato juice for cooking; truffles, preserved; onions, preserved are included in the broad category of the opponent’s preserved, dried and cooked fruits and vegetables. Therefore, they are identical.

The contested fruit jellies; ginger jam; marmalade; cranberry sauce (compote); are included in the broad categories of the opponent’s jellies, jams, compotes. Therefore, they are identical.

The contested sports nutrition, included in class 29, in particular nut and protein products; are similar to a high degree to the opponent’s preserved, dried fruits. They have the same providers, they are normally sold through the same outlets and target the same public.

The contested dates; gherkins; fruit pulp; fruit salads; vegetable salads; ground almonds; fruit salads; raisins; fruit peel are similar to the opponent’s fresh fruit and vegetables in Class 31. They have the same nature and providers, they are sold through the same outlets and target the same public.

The contested curd; yoghurt; coffee creamers; cheese products; kefir [milk beverage]; milk beverages, milk predominating; milk products; curds; cream [dairy products]; whipped cream; soya milk [milk substitute] are similar to the opponent’s fruit drinks, fruit juices in Class 32. They have the same purpose and they are products in competition. Moreover, they are sold through the same outlets and target the same public.

The contested milk is similar to a low degree to the opponent’s fruit drinks, fruit juices in Class 32. They can have the same providers, they are sold through the same outlets and target the same public.

The contested weed extracts for food; alginates for food; oysters, not live; eggs; yolk of eggs; powdered eggs; albumen for food; white of eggs; salted fish; fish, preserved; fish (not live); fish fillets; foods made from fish; canned fish; isinglass for food; fish meal for human consumption; prawns, not live; toasted laver; herrings; lobsters, not live; tripe; casein for food; snacks (included in class 29); coconut oil; crayfish, not live; crustaceans, not live; salmon; spiny lobsters, not live; corn oil; whey; mussels (not live); edible oils; olive oil for food; palm kernel oil for food; palm oil for food; pectin for culinary purposes; pollen prepared as foodstuff; albumen for culinary purposes; anchovy; sardines; shellfish, not live; ham; snail eggs for consumption; sea cucumbers (not live); shrimps, not live; tuna fish; are dissimilar to all the opponent’s goods. They have different providers and nature, they are normally sold through different outlets and they are not complementary.

Contested goods in Class 30

The contested chow-chow [condiment]; chutneys [condiments]; relishes; are similar to a high degree to the opponent’s preserved vegetables. They have the same nature (both are preserved vegetables ) can have the same providers, they are normally sold through the same outlets and target the same public.

The contested fruit sauces are similar to a high degree to the opponent’s preserved, dried and cooked. They have the same nature (both are fruits) can have the same providers, they are normally sold through the same outlets and target the same public.

The contested sports nutrition (included in class 30), including muesli bars and glucose products are similar to a high degree to the opponent’s preserved, dried fruits. They have same providers, they are normally sold through the same outlets and target the same public. Furthermore they are products in competition.

The contested seaweed [condiment]; curry [spice]; spices; condiments; cloves [spice]; ginger [spice]; catsup; garden herbs, preserved [seasonings]; turmeric; nutmeg; peppers (seasonings); peppers [seasonings]; mint for confectionery ;saffron [seasoning]; dressings for salad; sauces (spices); allspice; celery salt; mustard; mustard meal; paste (soya bean -) [condiment]; soya sauce: sauces [condiments]; tomato sauce; spices; aromatic preparations for food cinnamon [spice] are similar to the opponent’s preserved vegetables. They have the same nature and can have the same providers, they are normally sold through the same outlets and target the same public.

The contested syrups and treacles are similar to the opponent’s jam. They have the same purpose and method of use, they are normally sold through the same outlets and target the same public. Furthermore they are goods in competition.

The contested iced tea; tea-based beverages; coffee; artificial coffee; vegetal preparations for use as coffee substitutes; coffee-based beverages; cocoa-based beverages; infusions, not medicinal; coffee beverages with milk; cocoa beverages with milk; chocolate beverages with milk; drinking chocolate; sherbets [ices]; tea; chicory [coffee substitute] are similar to the opponent’s fruit drinks. They have the same purpose and can have the same providers, they are normally sold through the same outlets and target the same public. Furthermore they are in competition.

The contested honey is similar to the opponent’s jams. They have the same purpose and method of use and they are goods in competition. Furthermore, they are sold through the same outlets and target the same public.

The contested sweetmeats [candy]; peanut confectionery; fondants; fruit jellies [confectionery]; halvah; yoghurt (frozen -) [confectionery ices]; candy for food; caramels; sugar confectionery; decorations for cakes [edible]; liquorice [confectionery]; stick liquorice [confectionery]; almond confectionery; marzipan; almond paste; lozenges [confectionery]; mint for confectionery; peppermint candy; chocolate; sweet-products; pralines; confectionery for decorating christmas trees are similar to a low degree to the opponent’s dried fruit. They might have the same providers, they are normally sold through the same outlets, some of them are in competition and target the same public.

The contested aniseed; flavourings, other than essential oils, for beverages; flavorings, other than essential oils; wheat flour; flavourings, other than essential oils, for cakes; baking powder; pastries; beer vinegar; thickening agents for cooking foodstuffs; ice cream (binding agents for -); cookies; bean meal; buns; bread; unleavened bread; sandwiches; petit-beurre biscuits; couscous [semolina]; custard; desserts, consisting essentially of pasta; ice cream; essences for foodstuffs, except etheric essences and essential oils; vinegar; vermicelli [noodles]; ready-made dishes containing pasta; meat tenderizers, for household purposes; meat pies; meat gravies; spring rolls; pastries; royal jelly for human consumption (not for medical purposes); grits; husked barley; pearl barley; barley meal; barley (crushed -); chips [cereal products]; cereals; cereal-based snack food; glucose for food; gluten for food; semolina; groats for human food; crushed oats; oat flakes; oatmeal; husked oats; yeast in pill form, not for medical use;coffee flavorings [flavourings]; cocoa; cocoa products; capers; caramels; potato flour; chewing gum not for medical purposes; cookies; gluten for food; biscuits; cooking salt; salt for preserving foodstuffs; crackers; cakes; cake powder; cake dough; ice; gingerbread; maize, milled; maize, roasted; maize flakes; grits; maize flour; maize samp; macaroni; macaroons [pastry]; maltose; malt for human consumption; malt biscuits; malt extract for food; maltose; mayonnaise; sea water for cooking; flour for food; farinaceous foods; gruel, with a milk base, for food; flour-milling products; muesli; oat-based food; noodles; breadcrumbs; pasta; pies; pasty; petits fours [cakes]; pancakes; gingerbread; pide (flat bread); pizza; popcorn; bee glue (propolis) for human consumption; puddings; popcorn; quiches; ravioli; rice; rice cakes; rice-based snack food; ice, natural or artificial; coffee (unroasted -); sago; whipped cream (preparations for stiffening -); salt; sandwiches; leaven; bread rolls; mustard meal; soya flour; spaghetti; edible ices; powders for ice cream; baking soda [bicarbonate of soda for baking purposes]; food starch; starch for food; star aniseed; sushi; sweeteners (natural -); tabbouleh; tacos; tapioca; tapioca flour; ferments for pastes; farinaceous food pastes; tarts; tortillas; glucose for food; vanilla [flavoring] [flavouring]; vanillin [vanilla substitute]; waffles; wraps (pasta); sausage binding materials; aromatic preparations for food; rusks are dissimilar to all the opponent’s goods.

Contested goods in Class 32

The contested fruit juice beverages (non-alcoholic -); non-alcoholic beverages; non-alcoholic honey-based beverages; aperitifs, non-alcoholic; cider, non-alcoholic; cocktails, non-alcoholic; milk (Peanut -) [non-alcoholic beverage] are included in the broad category of, or overlap with, the opponent’s fruit drinks. Therefore, they are identical.

Preparations for making beverages are identically contained in both lists of goods.

The contested juices; vegetable juices [beverages]; include or overlap with, the opponent’s fruit juices. Therefore, they are identical.

The contested non-alcoholic fruit extracts; powders for effervescing beverages; pastilles for effervescing beverages; mineral water (preparations for making -); aerated water (preparations for making -); essences for making beverages; fruit nectars, non-alcoholic; syrups for lemonade; hops (extracts of -) for making beer; liqueurs (preparations for making -); syrups for beverages; are included in the broad categories of, or overlap with, the opponent’s syrups and other preparations for making beverages. Therefore, they are identical.

The contested ginger ale; energy drinks, sports drinks and isotonic drinks (included in class 32); aerated water; kvass (non-alcoholic beverages); lemonades; lithia water;; almonds (milk of -) [beverage]; orgeat; mineral water [beverages]; whey beverages; must; sarsaparilla [non-alcoholic beverage]; seltzer water; soda water; sherbets [beverages]; table waters; tomato juice [beverage]; grape must, unfermented; waters [beverages] are identical or at least similar to the opponent’s fruit drinks. They have the same purpose, they might have the same providers and they are goods in competition. They are sold through the same distribution channels and target the same public.

The contested beer; beer wort; malt beer; malt wort are similar to the opponent’s fruit drinks. They have the same purpose and they are goods in competition. They are sold through the same distribution channels and target the same public.

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 identical or similar to different degrees are directed at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention will vary from low to average, as some of the products are inexpensive goods purchased on a daily basis (e.g. yoghurt).

3. The signs

	MINEL
Earlier trade mark	Contested sign

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).

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C-514/06 P, Armafoam, EU:C:2008:511, § 57). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Even though in the English speaking territories at least the earlier mark ‘mine’ has a meaning, in some of the member states, such as Spain, none of the signs has a meaning. Therefore the Opposition Division finds it appropriate to focus the comparison of the signs on the Spanish-speaking part of the public.

The contested sign is a word mark, ‘MINEL’, this word has no meaning for the relevant public and is, therefore, distinctive.

The earlier mark is a figurative sign, , composed of a verbal element, the word Mine, in stylised orange letters inside a blue oval background. The word Mine has no meaning for the relevant public.

Visually, the earlier mark is figurative and the contested sign is a word mark; the signs coincide in the letters ‘Mine’ which constitute the earlier sign. However, they differ in the additional ‘l’ of the contested sign and in its figurative elements ( stylised orange letters and oval blue background).

Therefore, the signs are visually highly similar.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛Mine’, present identically in both signs, which are the whole earlier mark. The pronunciation differs in the sound of the last letters ‛l’ of the contested mark, which has no counterpart in the earlier mark.

Therefore, the signs are aurally highly similar.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

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.

5. Global assessment, other arguments and conclusion

The goods are partially identical, partially similar to different degrees and partially dissimilar. They are directed at the public at large and at business customers. The degree of attention of the relevant public will vary from low to average.

The signs are visually and aurally similar to a high degree and the conceptual aspect does not influence the assessment of the similarity of the signs. The differences between the earlier mark and the contested sign, namely the additional word ‘l’ in the contested sign and the stylized orange typescript and blue background, are not sufficient to counteract the significant similarities between them; therefore, there is a serious likelihood that the relevant public will confuse them and believe that they come from the same undertaking or from economically-linked undertakings.

Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T-104/01, Fifties, EU:T:2002:262, § 49).

Taking into account the normal degree of distinctiveness of the earlier mark, it is considered that the differences between the signs are not sufficient to overcome their similarities, and that there is a likelihood of confusion for all the identical and similar goods, even for those which are similar to a low degree.

Moreover, average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). This is true even for consumers who pay a high degree of attention (21/11/2013, T-443/12, ancotel, EU:T:2013:605, §  54).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Spanish-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to different degrees to those of the earlier trade mark.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this article and directed at these goods cannot be successful.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 85(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful only for part of the contested goods both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Robert MULAC

Patricia LÓPEZ FERNÁNDEZ DE CORRES

Dorothee SCHLIEPHAKE

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.