OPPOSITION No B 2 407 578

Lorenz Snack-World Beteiligung GmbH & Co. KG Germany, Adelheidstr. 4/5, 30171 Hannover, Germany (opponent), represented by KSB Intax, Lüerstr. 10-12, 30175 Hannover, Germany (professional representative)

a g a i n s t

Crunchies Food Company, LLC, 733 Lakefield Road, Suite B, Westlake Village CA  91361, United States of America (applicant), represented by Modiano Josif Pisanty & Staub Ltd, Thierschstr. 11, 80538 München, Germany (professional representative).

On 05/07/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 407 578 is upheld for all the contested goods.

2.        European Union trade mark application No 13 001 805 is rejected in its entirety.

3.        The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 13 001 805. The opposition is based on German trade mark registration No 2 016 484. The opponent invoked Articles 8(1)(b) and 8(5) 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:         Potato crisps.

The contested goods are the following:

Class 29:         Freeze-dried fruit; freeze-dried vegetables; dried vegetables; dried fruits; trail mix consisting of freeze dried fruits and/or nuts; trail mix containing whole grains, fruits and/or nuts; processed nuts; freeze dried, baked and air puffed fruit and vegetable chips; snack bars containing primarily freeze dried fruit and/or vegetables, and also containing corn and honey; snack bars containing primarily freeze dried fruit and/or vegetables; fruit based food bars; veggie based food bars; soy based food bars; dried fruit mixes; dried fruit products; fruit chips; fruit-based snack food; fruit salads; mixtures of fruit and nuts; prepared fruits; mixed vegetables; peeled vegetables; prepared vegetable products; preserved vegetables; vegetable salads.

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 freeze-dried fruit; dried fruits; freeze dried, baked and air puffed fruit chips; dried fruit mixes; dried fruit products; fruit chips; fruit-based snack food; prepared fruits are highly similar to the opponent’s potato crisps in Class 29. The former are all fruit processed products prepared for consumption or conservation. They have the same purpose and distribution channels, are in competition and these goods are normally made by the same kind of undertakings and usually target the same relevant public.

The contested freeze-dried vegetables; dried vegetables; freeze dried, baked and air puffed vegetable chips; mixed vegetables; prepared vegetable products; preserved vegetables all refer to vegetable products which are processed in a certain way and are prepared for consumption or conservation. When comparing these with the opponent’s potato crisps in Class 29, they are similar. They have all the same or a similar nature. They have the same purpose and distribution channels and they may have the same origin.

The contested trail mix consisting of freeze dried fruits and/or nuts; trail mix containing whole grains, fruits and/or nuts; processed nuts; snack bars containing primarily freeze dried fruit and/or vegetables, and also containing corn and honey; snack bars containing primarily freeze dried fruit and/or vegetables; fruit based food bars; veggie based food bars; soy based food bars; fruit salads; mixtures of fruits and nuts; peeled vegetables; vegetable salads are similar to the opponent’s potato crisps in Class 29. All these contested goods are foodstuffs made of vegetables and/or other horticultural comestible products which are prepared for consumption or conservation. They can include, inter alia, vegetables/fruits/nuts and vegetable/fruit salads which are offered in preserved, frozen, dried or cooked form, as well as vegetable/fruit snack bars ready for instant consumption. Considering this, they can have the same nature (dried or otherwise processed foodstuff), purpose (that of provide instant satisfaction of hunger), relevant public, distribution channels and might by in competition with the opponent’s goods. Some of the above mentioned goods, for example trail mix consisting of freeze dried fruits and/or nuts; trail mix containing whole grains, fruits and/or nuts; processed nuts; snack bars containing primarily freeze dried fruit and/or vegetables, and also containing corn and honey; snack bars containing primarily freeze dried fruit and/or vegetables; fruit based food bars; veggie based food bars; soy based food bars; mixtures of fruits and nuts can also be often found in the same area of supermarkets and there exist shops that are specialised in selling these kinds of products.

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 various degrees) are directed at the public at large. The degree of attention is average.

3. The signs

Crunchips
Earlier trade mark	Contested sign

The relevant territory is Germany.

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 word mark consisting of the word ‘Crunchips’. In case of word marks, the words themselves are protected, not their written form. Therefore, it is irrelevant whether a word mark is represented in lower or upper case or a combination of those letters.

The contested sign is a figurative mark consisting of the word ‘CRUNCHIES’, written in a slightly fancy white bold typeface in capital letters and placed inside of a green ribbon. On top of it appear the words ‘FREEZE DRIED’, written in a small typeface in black capital letters. The words are written inside of a yellow frame. The latter are written in such a small typeface, so that the word ‘CRUNCHIES’ inside of the green ribbon, due to its size and position, is the dominant element in the contested sign.

Regarding the earlier mark, the Court has held that, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a word sign, they will break it down into elements which, for them, suggest a specific meaning or which resemble words they know (13/02/2007, T-256/04, Respicur, EU:T:2007:46, § 57). Even though in this case the element ‘CHIPS’ is not visually separated from the remaining letters, consumers naturally look for a meaning when reading a word. Since the element ‘CHIPS’ belongs to the basic and widespread English vocabulary and is also used in German, it will be understood as meaning: ‘long, thin pieces of potato fried in oil or fat and eaten hot, usually with a meal’ (see Collins English Dictionary online). This element is descriptive with respect to the relevant goods, as it only indicates their kind. Therefore, the earlier mark has an element that is more distinctive, namely ‘CRUN-‘.

With respect to the contested sign, the word ‘CRUNCHIES’ has no clear meaning in relation to the relevant goods and as such it is distinctive. The words ‘FREEZE DRIED’ could be understood by part of the public that is more acquainted with the English language. These words, when understood, are non-distinctive for the relevant goods, since they refer to some of the characteristics of these goods, namely the way that they are prepared. However, for those for whom the terms are meaningless, the distinctive character remains intact. Furthermore, as regards the contested sign, it is composed of a distinctive verbal element ‘CRUNCHIES’ and of a less distinctive figurative element of a purely decorative nature, namely regarding the one in the form of a green ribbon and a small yellow frame on top. These are not such uncommon elements and have a more decorative nature. The public will not pay as much attention to these weak elements.

Visually, the signs coincide in the sequence of letters ‘C-R-U-N-C-H-I-*-S’, with the only difference in the slightly fancy typeface in which these letters of the contested sign are written. In the contested sign, it forms also the most dominant verbal element (or its substantial part) and for at least a part of the public also the most distinctive one. The marks also coincide in the first six letters of the earlier mark that are present at the beginning of the contested sign’s distinctive and dominant element. On the other hand, they differ in the eight letter ‘P’ of the earlier mark versus the letter ‘E’ in the same position in the contested sign. The marks differ in all the remaining elements as pointed out above.  

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 than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37; decisions of 19/12/2011, R 233/2011-4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011-5, Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59). This is even more applicable in the case at hand with respect to the ribbon and frame in the contested sign, since these elements are more of a decorative nature and are weak, as pointed out above.

Regarding the slightly fancy typeface in which the verbal elements of the contested sign are written, this stylisation must be considered not that elaborate or sophisticated and it will not lead the consumer’s attention away from the elements it seems to embellish.

Furthermore, the first parts of the conflicting marks, ‘CRUNCHI-‘, coincide, i.e. the part which forms almost the entirety of the most dominant and distinctive element (for at least a part of the public) of the contested sign. Consumers generally tend to focus on the first element of a sign when being confronted with a trade mark. This is justified by the fact that 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.

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

Aurally, the pronunciation of the signs coincides in the sound of the letters /C-R-U-N-C-H-I*-S/, present identically in both signs. The marks are both pronounced in two syllables, as /CRUN-CHIPS/ versus /CRUN-CHIES/. Furthermore, even though the earlier mark contains the letter ‘P’ almost at the end and the contested sign the letter ‘E’, these are placed in such a position and surrounded by the same letters, that these words are pronounced in a quite similar way. As the words ‘FREEZE DRIED’ are written in such a small lettering and are, furthermore, non-distinctive for a part of the public, the Opposition Division is of the opinion that these are most likely not to be pronounced. The marks are aurally similar to a high degree for this part of the public. For that part of the public that would pronounce these words and would consider them as normally distinctive, the marks are phonetically similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks and their individual elements. The element ‘CHIPS’ of the earlier mark is understood and for a part of the public the verbal elements ‘FREEZE DRIED’ of the contested sign are meaningless. Therefore, for this part of the public, the marks are not conceptually similar, even though the element ‘CHIPS’ has little impact due to its non-distinctive character. For that part of the public for whom the words ‘FREEZE DRIED’ are understood and the word ‘CHIPS’ of the earlier mark also, the signs convey dissimilar meanings, even though these all lie in non-distinctive elements.

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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

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 a non-distinctive element in the mark as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

A likelihood of confusion (including a likelihood of association) 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.

The goods at issue have been found to be identical and similar (to various degrees), while the level of attention is average. The earlier mark has a normal degree of distinctiveness.

The marks have been found visually similar to an average degree, aurally similar to an average or to a high degree, and the marks convey, from a conceptual level, dissimilar meanings or they are not conceptually similar.

In addition, account should also be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks and must place his trust in the imperfect picture of them that he has kept in his mind (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

In the present case, although the public in the relevant territory might detect certain differences between the signs, it is highly likely that the relevant consumer will perceive the contested sign as a sub-brand, a variation of the earlier mark configured in a different way depending on the type of goods that it designates. It is, therefore, conceivable that the relevant public will regard the goods designated by the conflicting signs as belonging to two ranges of goods coming from the same undertaking.

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

 

Therefore, the opposition is well founded on the basis of the opponent’s German trade mark registration No 2 016 484. It follows that the contested trade mark must be rejected for all the contested goods.

Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its extensive use/reputation as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

Since the opposition is fully successful on the basis of Article 8(1)(b) EUTMR, there is no need to examine Article 8(5) EUTMR, also invoked by the opponent.

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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Martin MITURA

Chantal VAN RIEL

Saida CRABBE

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.