OPPOSITION No B 2 798 265

Heze Ameva Foods Co.,LTD, Douzhuang, Lvling Town, Mudan District, Heze City, Shandong Province, People’s Republic of China (opponent), represented by Eurochina Intellectual Property, Calle San Mateo, 65 – Local 1 ‘Llopis & Asociados’,

03012 Alicante, Spain (professional representative)

a g a i n s t

Ameva Europe OOD, floor 2, Hadji Dimitar Asenov Street 86, 6000 Stara Zagora, Bulgaria (holder)

On 22/09/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 798 265 is partially upheld, namely for the following contested goods:

Class 29:        Ajvar [preserved peppers]; artichokes, preserved; bouillon; preparations for making bouillon; bouillon concentrates; toasted laver; peas, preserved; mushrooms, preserved; tomato juice for cooking; tomato paste; seaweed extracts for food; fruit-based snack food; frosted fruits; vegetables, tinned [canned (am.)]; vegetable mousses; vegetable soup preparations; vegetable salads; vegetable juices for cooking; vegetables, preserved; vegetables, cooked; vegetables, dried; kimchi [fermented vegetable dish]; sauerkraut; coconut, desiccated; cranberry sauce [compote]; compotes; fruit peel; gherkins; flaxseed oil for culinary purposes, lentils, preserved; onions, preserved; olives, preserved; rape oil for food; rice milk [milk substitute]; palm kernel oil for food; palm oil for food; eggplant paste; vegetable marrow paste; toasted laver; fruit pulp; fruit chips; fruit-based snack food; fruits, tinned [canned (am.)]; fruit, preserved; fruit preserved in alcohol; fruit jellies; fruit peel; fruit salads; frozen fruits; fruit pulp; edible oils; seeds, prepared; jams; ginger jam; prepared sunflower seeds; sunflower oil for food; soya beans, preserved, for food; soya milk [milk substitute]; raisins; sesame oil; truffles, preserved; piccalilli; beans, preserved; dates; peanuts, prepared; peanut butter; peanut milk for culinary purposes; corn oil; preserved garlic; potato chips; apple puree; nuts, prepared.

2.        International registration No 1 301 845 is refused protection in respect of the European Union for all of 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 international registration designating the European Union No 1 301 845 for the figurative mark , namely against all the goods in Class 29. The opposition is based on European Union trade mark registration No 10 546 067 for the figurative mark . The opponent invoked Article 8(1)(a) and (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:        Meat; foods prepared from fish; vegetables, tinned [canned(am.)]; raisins; preserved vegetables; eggs; milk; fruit salads; nuts, prepared; albumen for culinary purposes.

The contested goods are the following:

Class 29:        Ajvar [preserved peppers]; artichokes, preserved; bouillon; preparations for making bouillon; bouillon concentrates; toasted laver; peas, preserved; mushrooms, preserved; tomato juice for cooking; tomato paste; seaweed extracts for food; fruit-based snack food; frosted fruits; vegetables, tinned [canned (am.)]; vegetable mousses; vegetable soup preparations; vegetable salads; vegetable juices for cooking; vegetables, preserved; vegetables, cooked; vegetables, dried; kimchi [fermented vegetable dish]; sauerkraut; coconut, desiccated; cranberry sauce [compote]; compotes; fruit peel; gherkins; flaxseed oil for culinary purposes, lentils, preserved; onions, preserved; olives, preserved; rape oil for food; rice milk [milk substitute]; palm kernel oil for food; palm oil for food; hummus [chickpea paste]; eggplant paste; vegetable marrow paste; pectin for food; toasted laver; fruit pulp; fruit chips; fruit-based snack food; fruits, tinned [canned (am.)]; fruit, preserved; fruit preserved in alcohol; fruit jellies; fruit peel; fruit salads; frozen fruits; fruit pulp; edible oils; seeds, prepared; jams; ginger jam; prepared sunflower seeds; sunflower oil for food; soya beans, preserved, for food; soya milk [milk substitute]; raisins; tahini [sesame seed paste]; sesame oil; tofu; pollen prepared as foodstuff; truffles, preserved; piccalilli; beans, preserved; dates; peanuts, prepared; peanut butter; peanut milk for culinary purposes; corn oil; preserved garlic; potato chips; apple puree; nuts, prepared.

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 vegetables, preserved; vegetables, tinned [canned (Am.)]; fruit salads; raisins; nuts, prepared are identically contained in the opponent’s list of goods.

The contested ajvar [preserved peppers]; artichokes, preserved; sauerkraut; gherkins; onions, preserved; preserved garlic are included in the broad category of the opponent’s preserved vegetables. Therefore, they are identical.

As ‘preserved’ means food treated in a particular way so that it can be kept for a long time without going bad including in a frozen, dried or cooked state, the contested vegetables, cooked; vegetables, dried; kimchi [fermented vegetable dish]; piccalilli; potato chips; eggplant paste are included in the broad category of the opponent’s preserved vegetables. They are, therefore, identical.

The contested bouillon; preparations for making bouillon; bouillon concentrates overlap with the opponent’s foods prepared from fish, because bouillon, respectively a preparation or a concentrate of it, can be made from fish. For this reason, they are identical.

The contested peanuts, prepared are included in the broad category of nuts, prepared. Therefore, they are identical.

The contested fruits, tinned [canned (Am.)] include, as a broader category the opponent’s raisins. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested seed prepared; prepared sunflower seeds are highly similar to the opponent’s nuts, prepared, as they have the same purpose, they coincide in the distribution channels and producers, they target the same consumers and are in competition with each other.

The contested coconut, desiccated; dates are highly similar to the opponent’s nuts, prepared. They have the same purpose, producers, distribution channels and they target the same public. Furthermore, they can be in competition with each other.

The contested frosted fruits; fruit pulp (listed twice); fruit, preserved; fruit preserved in alcohol; frozen fruits are highly similar to the contested fruit salads. They have the same nature and purpose, the same distribution channels and relevant public and they can be in competition with each other.

The contested rice milk [milk substitute]; soya milk [milk substitute]; peanut milk for culinary purposes are highly similar to the opponent´s milk, as they have the same purpose, method of use, distribution channels, relevant public and they are in competition with each other.

The contested vegetable soup preparations are similar to the opponent’s preserved vegetables. They have the same purpose and they are usually produced by the same manufacturers and sold in the same outlets. Moreover, they target the same consumers.

The contested peas, preserved; mushrooms, preserved; lentils, preserved; olives, preserved; soya beans, preserved, for food; beans, preserved; truffles, preserved are similar to the opponent’s preserved vegetables. They have the same method of use, distribution channels and they target the same public.

The contested cranberry sauce [compote]; compotes; fruit chips; fruit-based snack food (listed twice); fruit peel (listed twice); jams; fruit jellies; apple puree are all products made out of fruit. They are similar to the opponent’s fruit salads as they have the same purpose, the same producers and they target the same consumers. Furthermore, they can be in competition with each other.

Since they are made out of vegetables, the contested tomato juice for cooking; tomato paste; vegetable mousses; vegetable salads; vegetable juices for cooking; vegetable marrow paste are similar to the opponent’s preserved vegetables. They have the same purpose, the same producers and they target the same consumers. Furthermore, they can be in competition with each other.

The contested flaxseed oil for culinary purposes; rape oil for food; palm kernel oil for food; palm oil for food; edible oils; sunflower oil for food; sesame oil; peanut butter; corn oil are similar to the opponent’s milk because they have the same purpose and they target the same public. Furthermore, they can be in competition with each other.

The contested ginger jam is similar to the opponent’s fruit salad. Although ginger is not a fruit and they do not have the same nature, they can be both offered as deserts. Therefore, they have the same purpose. Furthermore, they have the same producers and they target the same public.

The contested toasted laver (listed twice) and seaweed extracts for food can be main ingredients of, for example, sushi. Therefore, they are similar to the opponent’s foods prepared from fish, as sushi is a food prepared from fish. These conflicting goods can be complementary to each other, they can also coincide in the producers, distribution channels and the relevant public.

The contested hummus [chickpea paste]; tofu; tahini [sesame seed paste]; pectin for food and pollen prepared as foodstuff are dissimilar to all the opponent’s goods. They have different natures and purposes, they are neither complementary to nor in competition with each other. Their distribution channels and methods of use are also different.

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 are directed at the public at large.

The degree of attention is considered to be below average as cheap mass consumption goods are concerned.

3. The signs

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.

As the common verbal element ‘AMEVA’ is meaningless in, for example, territories where English is spoken and understood, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-peaking part of the public.

The earlier sign is a figurative mark that consists of the verbal element ‘AMEVA’, written in stylized white upper case bold letters in a grey box on top of a thick black line.

When signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element rather than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37).

The contested sign is a figurative mark that consists of the verbal elements ‘AMEVA EUROPE‘, written in upper case bold letters, in white colour on a figurative element in red colour resembling a rectangle. In the upper left part of the rectangle there is a figurative element, resembling the silhouette of a chef's hat. Under the verbal elements ‘AMEVA EUROPE’, there are the verbal elements ‘MEDITERRANEAN TASTE’, written in upper case bold letters, against a figurative element in black colour that has an irregular geometric shape resembling in the upper half a rectangle, while in the lower half it has the form of a semi-ellipse.

The verbal element ‘EUROPE’ in the contested sign will be understood by the relevant public as an indication of origin, i.e. the place where the contested goods are produced. For this reason it is descriptive and, therefore, lacks distinctiveness.

The verbal elements ‘MEDITERRANEAN TASTE’ designate that the goods in question are foodstuff that come from the Mediterranean region.  Therefore, also these elements are non-distinctive in connection to the goods in question.

For the same reason, i.e. carrying the notion of foodstuff, also the figurative element, resembling the silhouette of a chef's hat is non-distinctive in respect of the contested goods.

In line with the case-law cited above the verbal element ‘AMEVA’ will have a stronger impact on the relevant public than the figurative elements resembling a rectangle and a semi-ellipse in the colours red and black just because these figurative elements are rather commonly used in advertising of goods and consumers pay greater attention to the verbal elements than to the figurative ones.

Neither of the signs in dispute has an element which can be considered more dominant (visually outstanding) than others.

Visually, the signs coincide in the verbal element ‘AMEVA’ which is the most distinctive one in both signs. They differ in the additional words ‘EUROPE’ and ‘MEDITERRANEAN TASTE’ contained in the contested sign, which are, as mentioned above, non-distinctive. The signs also have different figurative elements, whereby the backgrounds in different colours resembling rectangles and a semi-ellipse have a limited distinctiveness while the silhouette of a chef’s hat in the contested sign is non-distinctive.

Therefore, the signs are visually similar to an above average degree.

Aurally, the signs coincide in the pronunciation of the common verbal element ‘AMEVA’ and they differ in the pronunciation of the additional non-distinctive words ‘EUROPE’ and ‘MEDITERRANEAN TASTE’ of the contested sign, not present in the earlier sign. The figurative elements will not be pronounced and they are, therefore, not subject to a phonetic assessment.

Considering the above, the signs are aurally similar to an above average degree.

 

Conceptually, the public in the relevant territory will perceive the meaning of the verbal elements ‘EUROPE’ and ‘MEDITERRANEAN TASTE’ of the contested sign as described above. It will also perceive the silhouette of a chef’s hat as referring to culinary products. However, the common verbal element ‘AMEVA’ which is the most distinctive one in both signs has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

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

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

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).

The conflicting goods were found partly identical, partly similar (to various degrees) and partly dissimilar.

The conflicting signs were found visually and aurally similar to an above average degree and conceptually not similar.

The conflicting signs share the same verbal element ‘AMEVA’ which is in the beginning of the contested sign and the only verbal element of the earlier mark. Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. In addition to that, the common verbal element ‘AMEVA’ is the more distinctive one in both signs, whereas the silhouette of a chef’s hat and the other verbal elements in the contested sign have no distinctiveness and the figurative elements of both signs resembling rectangles and a semi-ellipse have limited distinctiveness, as explained above in section c) of this decision.

In this regard it should also be noted that the goods in question are fairly ordinary consumer products that are commonly purchased in supermarkets or establishments where goods are arranged on shelves and consumers are guided by the visual impact of the mark they are looking for (see in this regard judgment of 15/04/2010, T-488/07, Egléfruit, EU:T:2010:145). In the case at hand the conflicting signs were found visually similar to an above average degree.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the English-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 various 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.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR because the signs are obviously not identical.

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

Lars HELBERT

Alexandra APOSTOLAKIS

Martin EBERL

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.