OPPOSITION No B 2 390 725

Karlovarská Korunní s.r.o., Stráž nad Ohří 77, 36274, Stráž nad Ohří, Czech Republic (opponent), represented by Propatent – Patent, Známk, Graf, Kancelář, Pod Pekařkou 107/1, 147 00, Podolí, Prague 4, Czech Republic (professional representative)

a g a i n s t

Kesko Oyj, Sörnäistenkatu 2, 00580 Helsinki, Finland (applicant), represented by Borenius Attorneys Ltd, Eteläesplanadi 2, 00130 Helsinki, Finland (professional representative).

On 17/07/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 390 725 is rejected in its entirety.

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

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 12 466 322, namely against some of the goods and services in Classes 30, 32 and 35. The opposition is based on the Czech Republic trade mark registration No 311 496. 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 and services

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

Class 32: Mineral water; effervescing beverages and other non-alcoholic beverages; fruit beverages and juices; syrups and other preparations for making beverages.

The contested goods and services are the following:

Class 30: Drinking chocolate; Chocolate beverages with milk; Beverages (Chocolate-based-); Coffee based drinks; Cocoa-based beverages; Tea-based beverages: Iced tea; Coffee based drinks; Coffee beverages with milk; Cocoa-based beverages; Cocoa beverages with milk; Syrups; Iced tea; Tea-based beverages. 

Class 32: Mineral and aerated waters and other non-alcoholic beverages; fruit drinks and juices; Syrups and other preparations for making beverages; Aloe vera drinks, non-alcoholic; Table waters; Powders for effervescing beverages; Pastilles for effervescing beverages; Cider, non-alcoholic; Grape must, unfermented; Non-alcoholic beverages; Whey beverages; Essences for making beverages; Fruit juice beverages (Non-alcoholic); Non-alcoholic fruit extracts; Juices; Fruit nectars, non-alcoholic: Ginger ale; Vegetable juices (beverages); Non-alcoholic honey-based beverages; non-alcoholic; Cocktails, non-alcoholic; Non-alcoholic honey-based beverages; Non-alcoholic beverages; Fruit juice beverages (Non-alcoholic -); Non-alcoholic fruit extracts; Ginger ale; Isotonic drinks; Milk (Peanut -) [non-alcoholic beverage}; Fruit juices; Sparkling water; Syrups for beverages; Concentrates for use in the preparation of soft drinks; Kvass (non-alcoholic beverages); Lithia water; Lemonades; Malt wort; Almonds (Milk of -) [beverage]; Orgeat; Mineral water (beverages); Peanut milk (non-alcoholic beverage); Orgeat (beverages); Must; Fruit nectars, non-alcoholic; Preparations for making beverages; Mineral water (Preparations for making -); Aerated water (Preparations for making -); Powders for effervescing beverages; Sarsaparilla [non-alcoholic beverage]; Seltzer water; Smoothies; Soda water; Sherbets [beverages}; Pastilles for effervescing beverages; Tomato juice (beverages); Whey beverages; Table waters; Waters (beverages); Lithia water; Seltzer water; Sherbets {beverages].

Class 35: Retailing and mail ordering of mineral waters, aerated waters, lemonades, soft drinks, non-alcoholic beverages, fruit beverages, fruit juices, syrups. 

Some of the contested goods and services are identical to the goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above. The examination of the opposition will proceed as if all the contested goods and services were identical to those of the earlier mark.

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 and services are directed at the public at large whose degree of attention is considered to vary from low, in relation to the cheap goods for daily consumption (e.g. mineral waters), to average (e.g. for syrups, cider, Grape must, unfermented; non-alcoholic beverages; whey beverages; essences for making beverages).

3. The signs

Earlier trade mark	Contested sign

The relevant territory is Czech Republic.

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 consisting of an upper case black letter ‘K’, with a crown at the top of it. The representation of the letter K has an important place within the mark applied for, in that it is positioned in the centre and covers two thirds of the area. Above, the position of the crown is also important as takes up one third of the area. The figurative element of the crown may be perceived as a reference to prestige and high quality, and as such, rather laudatory, which confines this element to be weaker. The dominant and more distinctive element of the contested mark is therefore the letter ‘K’.

The contested sign is a figurative mark consisting of an upper case black letter ‘K’, which is rather stylised and dominates the visual impression of the mark. The mark also contains the word ‘MENU’, in the top right corner in smaller characters. This element will be understood by the Czech public as a list of the food and drinks that are available. Regarding the goods and services in conflict, this element is allusive.

Visually, both signs contain the letter ‘K’ depicted in black. However, there are several noticeable differences between the signs. The font used for the letter ‘K’ is much thicker in the contested sign than in the earlier mark. Furthermore the earlier mark is represented horizontally while the contested sign is inclined to the left. Moreover, the contested sign has a slim, vertical appearance, in comparison with the wider, horizontal appearance of the earlier mark. The earlier mark contains in addition a crown above of the letter ‘K’. In the contested mark, although it is not dominant, the word ‘MENU’ cannot be disregarded, and it creates an additional difference.

Therefore, the signs are visually similar to a low degree at most.

Aurally, the pronunciation of the signs coincides in the letter ‘K’ and differs in the additional letters ‘MENU’ of the contested sign.

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

Conceptually, the letter ‘K’, included in both signs, will be associated by the relevant public with the corresponding letter of the Roman alphabet. The signs differ, however, in the small crown device contained by the earlier sign and in the additional word ‘MENU’ of the contested sign, which will be understood by the Czech public.

The signs are therefore conceptually similar to an average degree, as they have in common the concept of the letter ‘K’.

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 and services 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 the figurative element of a crown 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).

In cases of conflicting signs consisting of or containing the same single letter, the visual comparison is normally of decisive importance, these signs usually being phonetically and conceptually identical, or at least similar to the extent that they coincide in that element.

The similarities between the signs are limited to the fact that each contains the letter ‘K’. Considering this, the way the letter appears in each sign is decisive. The letter ‘K’ is depicted in a very different manner in the two signs. As mentioned above, the signs are only visually similar to a low degree, and – in spite of the assumption of identity between the goods – this is not sufficient to find a likelihood of confusion.

Indeed, although the signs coincide aurally and conceptually in the element ‘K’, in terms of the overall visual impressions given by the marks, the differences prevail.

Therefore, there is no likelihood of confusion, since the significant differences in stylisation of the letters ‘K’, and the additional crown and the word ‘MENU’, are clearly perceptible and sufficient to exclude any likelihood of confusion between the marks, even for identical goods and services.

As regards the overall assessment of likelihood of confusion, the Court has made it clear that the fact that two trade marks consisting of the same letter (or of the same sequence of letters) are found to be identical from an aural and a conceptual point of view is relevant when it comes to assessing the existence of a likelihood of confusion. In such cases, it is only when the contested trade mark gives a sufficiently different visual impression that a likelihood of confusion can be safely ruled out (10/05/2011, T-187/10, G, EU:T:2011:202, § 60).

Consequently, a likelihood of confusion can be safely excluded when two conflicting signs, albeit containing or consisting of the same single letter, are stylised in a sufficiently different way or contain a sufficiently different figurative element, so that their different overall graphical representations outweigh the verbal element that they have in common.

Considering all the above, 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

Cristina CRESPO MOLTO

Birgit FILTENBORG

Loreto URRACA LUQUE

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.