OPPOSITION No B 2 680 778
Aldi GmbH & Co. KG, Burgstr. 37, 45476 Mülheim/Ruhr, Germany (opponent), represented by Schmidt, von der Osten & Huber Rechtsanwälte Steuerberater Partnerschaft mbB, Haumannplatz 28, 45130 Essen, Germany (professional representative)
a g a i n s t
Yi Bakeries B.V., Vlijtseweg 164, 7317 AK Apeldoorn, Netherlands (applicant), represented by Novagraaf Nederland B.V., Hoogoorddreef 5, 1101 BA Amsterdam, Netherlands (professional representative).
On 02/05/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 680 778 is upheld for all the contested goods.
2. European Union trade mark application No 14 819 981 is rejected in its entirety.
3. The applicant bears the costs, fixed at EUR 620.
REASONS:
The opponent filed an opposition against all the goods of European Union trade mark application No 14 819 981. The opposition is based on German trade mark registration No 30 2014 044 630. 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.
- The goods
The goods on which the opposition is based are the following:
Class 29: Milk; Milk products; Whey; Cheese; Cream cheese; Smetana [sour cream]; Evaporated milk; Yogurt; Butter-milk; Quark; Quark; Kephir [milk beverage]; Mousse; Powdered milk for food purposes; non-alcoholic and pre-mixed milk beverages, milk predominating; milk and pre-mixed milk beverages, milk predominating and containing caffeine; Fat-containing mixtures for bread slices; Casein and Powdered milk for food purposes, RO-permeate [whey products]; Muesli preparations, primarily consisting of Smetana [sour cream], Buttermilk, Prostokvasha [soured milk], Yogurt, Kephir [milk beverage], Quark, also with the addition of prepared fruits and/or cereals; Instant desserts, consisting of Milk, Buttermilk, Yogurt, Quark and Cream, also with the addition of herbs and/or prepared fruits and/or cereals; all aforementioned goods not consisting of or based on Olives.
Class 30: Coffee; Coffee-based beverages; Cocoa; Cocoa-based beverages; Chocolate-based beverages; Cocoa beverages with milk; Coffee beverages with milk; Chocolate beverages with milk; Creamed rice; Mousse au Chocolat; Semolina pudding; Puddings; Grits; Jelly; Ambrosia; Ice cream and Ices, including Sorbets [ices] and Frozen yogurt [confectionery Ices].
Class 32: Waters [beverages]; Mineral water [beverages]; Table waters; Soda and Seltzer water; Aerated water; Nonalcoholic beverages; Lemonades; Isotonic beverages; Energy drinks; Whey beverages; Sherbets [beverages].
The contested goods are the following:
Class 30: Puffed multigrain waffles, puffed wheat waffles.
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.
The contested puffed multigrain waffles, puffed wheat waffles may have the same distribution channels and public as the opponent’s puddings in Class 30 since they may be offered in the same cafeterias, restaurants, bars, etc. Furthermore, they may be in competition with each other. Therefore, they are similar to a low degree.
- 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 a low degree are directed at the public at large. The degree of attention is considered to be average.
- The signs
| CRISPI | CRISPIX |
|
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).
Neither the earlier trade mark, ‘CRISPI’ nor the contested sign ‘CRISPIX’, has any meaning for the relevant public. Therefore, they are distinctive in relation to the goods in question.
In its observations, the applicant argues that the earlier trade mark has a low distinctive character given that there are many trade marks that include ‘CRISP’. In support of its argument the applicant refers to several trade mark registrations in Germany and the European Union.
Firstly, the Opposition Division notes that the existence of several trade mark registrations is not per se particularly conclusive, as it does not necessarily reflect the situation in the market. In other words, on the basis of data concerning a register only, it cannot be assumed that all such trade marks have been effectively used. It follows that the evidence filed does not demonstrate that consumers have been exposed to widespread use of, and have become accustomed to, trade marks that include ‘CRISP’. Secondly, the applicant’s assertions relate to ‘CRISP’ and its meaning in English. As seen above, the relevant territory is Germany and ‘CRISP’ is not part of German vocabulary. More importantly, ‘CRISP’ is not featured in an independent or isolated manner in either of the marks and as such it cannot be held that the term would be perceived or understood as argued by the applicant. In the absence of further supporting evidence the applicant’s claims in this regard must be set aside.
Visually and aurally, the signs coincide in the sequence of letters and sounds ‘CRISPI’. The difference between the signs is confined to the additional last letter ‘X’ only contained in the contested sign.
The word ‘CRISPI’ constitutes the entire earlier mark and the first six letters out of seven of the contested sign. Therefore, the marks are visually and aurally similar to a high degree.
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.
- 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.
- Global assessment, other arguments and conclusion
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 at issue are similar to a low degree and the degree of attention of the relevant public is average.
The earlier mark has a normal degree of distinctiveness. Despite the slight difference between the signs, as stated above in section c) of this decision and contrary to the applicant’s argument, the signs are visually and aurally highly similar overall and there is no conceptual aspect that could help consumers to differentiate the signs. Moreover, account is taken of the fact that 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). Consequently, the low degree of similarity between the goods is offset by the high degree of similarity between the signs.
Therefore, the relevant public, when encountering the signs in relation to the goods at issue, is likely to confuse the trade marks or make a connection between the conflicting signs and assumes that the goods covered come from the same or economically linked undertakings.
Considering all the above, there is a likelihood of confusion on the part of the public.
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
| Alexandra APOSTOLAKIS | Carlos MATEO PÉREZ | Vanessa PAGE |
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.