ALLIATA | Decision 2661042

OPPOSITION No B 2 661 042

Hipercor, S.A., Calle Hermosilla, 112, 28009 Madrid, Spain (opponent), represented by J.M. Toro, S.L.P., Viriato, 56 – 1º izda, 28010 Madrid, Spain (professional representative)

a g a i n s t

Claudia Alliata di Villafranca, Via della Cuba, 16, 91100 Trapani, Italy (applicant).

On 20/03/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 661 042 is upheld for all the contested goods.

2.        European Union trade mark application No 14 880 157 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 14 880 157. The opposition is based on, inter alia, European trade mark registration No 6 787 253. 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 opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European trade mark registration No 6 787 253.

  1. The goods

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

Class 29: Meat, fish, poultry and game; meat extracts; preserved frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats.

Class 30: Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking – powder; salt, mustard; vinegar, sauces (condiments); spices; ice.

Class 33: Alcoholic beverages (except beers).

The contested goods are the following:

Class 29: Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk and milk products; edible oils and fats; olive oils; extra virgin olive oil. 

Class 30: Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour and preparations made from cereals; bread; pastry and confectionery; edible ices; honey; syrups and treacles; yeast, baking-powder; salt; mustard; vinegar; herb-sauces; spices; ice. 

Class 33: Alcoholic beverages (with the exception of beers); wine; sparkling wines; liqueurs; grappa (brandies). 

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 meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk and milk products; edible oils and fats are identically contained in both lists of goods.

The contested olive oils; extra virgin olive oil are included in the broad category of the opponent’s edible oils. Therefore, they are identical . 

Contested goods in Class 30

The contested coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour and preparations made from cereals; bread; pastry and confectionery; edible ices ; honey; treacles; yeast, baking-powder; salt; mustard; vinegar; spices; ice are identically contained in both lists of goods (including synonyms).

The contested herb-sauces are included in the broad category of the opponent’s sauces (condiments). Therefore, they are identical.

The contested syrups are similar  to the opponent’s sugar as they can coincide in end user and distribution channels. Furthermore they are in competition.

Contested goods in Class 33

The contested alcoholic beverages (with the exception of beers) are identically contained in both lists of goods.

The contested wine; sparkling wines; liqueurs; grappa (brandies) are included in the broad category of the opponent’s alcoholic beverages (with the exception of beers). Therefore, they are identical.

  1. 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 average.

  1. The signs