OPPOSITION No B 2 479 114

MIP Metro Group Intellectual Property GmbH & Co. KG, Metro-Str. 1, 40235 Düsseldorf, Germany (opponent), represented by Eva Schiller, MIP Metro Group Intellectual Property GmbH & Co. KG, Metro-Str. 1, 40235 Düsseldorf, Germany (employee representative)

a g a i n s t

Allreal International Group Co., Ltd, No.3, Floor 22, No.59, Middle of HongKong Road, Shinan District, Qingdao, Shandong 266071, People’s Republic of China (applicant), represented by Beetz & Partner, Steinsdorfstr. 10, 80538 München, Germany (professional representative).

On 22/05/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 479 114 is upheld for all the contested goods.

2.        European Union trade mark application No 13 714 852 is rejected in its entirety.

3.        The applicant bears the costs, fixed at EUR 350.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 13 714 852. The opposition is based on, inter alia, European Union trade mark registration No 9 512 609. 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 Union trade mark registration No 9 512 609.

1. The goods

The goods on which the opposition is based are, inter alia, the following:

Class 29:        Meat, fish, poultry and game; meat extracts; preserved, dried and stewed fruit and vegetables; jellies for food; jams, compotes; eggs, milk and milk products; edible oils and fats; broth, broth concentrates, fat-containing mixtures for bread slices, butter, peanut butter, broth concentrates, meat jellies, fruit preserved in alcohol, preparations for making bouillon, fruit jellies, lobsters, not live, yoghurt, cocoa butter, crystallized fruits, potato crisps, potato fritters, cheese, Kephir (milk beverage), coconut butter, coconut, desiccated, soups, croquettes, crustaceans, not live, liver pâté, almonds, ground, margarine, marmalade, milk beverages, milk predominating, whey, nuts, prepared, olives, preserved, pickles, mushrooms, preserved, pollen prepared as foodstuff, raisins, cream, sauerkraut, shellfish, not live, ham, soya beans, bacon, gelatine for food, preparations for making soup, tofu, tomato purée, tomato juice for cooking, truffles, preserved, sausages, charcuterie; antipasti, included in this class, meat, fish, poultry and game products, minced meat and meat preparations, ready meals and partially cooked meals and salads, mostly consisting of meat and/or fish and/or poultry and/or sausage and/or game, ready meals and partially cooked meals and salads, mostly consisting of fruit and/or vegetables, vegetarian sandwich spreads, included in this class, butter milk, fresh cream, curd, milk powder, dietetic foods not for medical purposes based on white of egg, fats, fatty acids, with added vitamins, minerals, trace elements, either individually or in combination, included in this class, legumes, potatoes and prepared potato products, included in this class, cheese products and cheese preparations, coffee whitener, potato dumplings, mashed potatoes, caviar, coconut milk, snacks, included in this class, extruded potato products for consumption, included in this class, potato sticks, dried fruits, dried, roasted, salted and/or spiced hazelnuts, peanuts, macadamia nuts, cashew nuts, pistachio nuts, chips, quark, rösti (Swiss potato dish), sour cream, soya products as meat replacements, included in this class, all the above mentioned in class goods also available as preserves or frozen, as far as this is possible.

Class 30:        Coffee, tea, cocoa, sugar, rice, tapioca, sago, coffee replacement; flours and cereal preparations, bread, pastries, edible ices; honey, golden syrup; yeast, baking powder; salt, mustard; vinegar, sauces (condiments); spices; ice for refreshment, flavorings (flavourings), other than essential oils, for beverages, flavourings other than essential oils, flavorings (flavourings), other than essential oils, for cakes, thickening agents for cooking foodstuffs, binding agents for ice cream (edible ices), biscuits, sweetmeats (candy), bread rolls, sandwiches, cornflakes, iced tea, essences for foodstuffs, except etheric essences and essential oils, meat tenderizers, for household purposes, meat pies, meat gravies, spring rolls, pastries, cereals, husked barley, tea-based beverages, condiments, glucose for food, gluten for food, yeast, coffee flavorings (flavourings), coffee-based beverages, cocoa products, cocoa-based beverages, candy for food, capers, potato flour for food; biscuits, ketchup (sauce), cake powder, cakes, cake paste, corn, milled, corn, roasted, corn flour, maltose, malt for human consumption, marzipan, mayonnaise, farinaceous foods, gruel, with a milk base, for food, nutmeg, flour-milling products, muesli, noodles, breadcrumbs, pastries, pies, pancakes, pizzas, popcorn, puddings, popcorn, quiches, ravioli, dressings for salad, sandwiches, leaven, chocolate, chocolate-based beverages, mustard meal, soya flour, soya sauce, sherbets (ices), spaghetti, powders for ice cream, starch for food, sushi, natural sweeteners, tacos, tapioca flour for food, tomato sauces, pasta, tarts, tortillas, glucose for food, waffles, seasonings, aromatic preparations for food, confectionary, rusks, confectionary for decorating Christmas trees; ready meals and partially cooked products and salads, mostly consisting of rice and pasta, baking powder, cereal products, corn snacks, bread for toasting, bread for sandwiches, all croissants and baguettes, with and without fillings, crispbread, hamburgers, vegetarian burgers, hot dogs, rice snacks, produced using extrusion methods, wheat, rice and corn products for food, corn crisps, popcorn, salt sticks, savoury snacks, pretzels; confectionary, pralines, also filled, sugar foam products, chocolate products, chocolate marshmallows, wine and fruit gums, liquorice (confectionery), sweet spreads for bread, insofar as included in this class, sweets and desserts, pudding powder, red fruit jelly, rice pudding, gnocchi, tortellini, macaroni, lasagne, spaetzle, Maultaschen (Swabian ravioli), fruit sauces, ready-made sauces, remoulade, pepper, dietetic foods not for medical purposes based on carbohydrates, fibre, with the addition of vitamins, minerals and trace elements individually or in combination, included in this class, pot herbs; fruit sauces.

Class 31:        Agricultural, horticultural and forestry preparations, not included in other classes; animals, live; fresh fruit and vegetables; living plants and natural flowers; animal foodstuffs; malt; algae for human or animal consumption, aromatic sand for pets (litter), oysters, live, trees (plants), raw bark, berries, fresh fruits, flower bulbs, beans, fresh, nettles, chicory (salad), peas, fresh, peanuts (fruits), chestnuts, fresh, fish spawn, fishmeal for animal consumption, pet food, fish spawn, fresh fruit, lime for animal forage, grains for animal consumption, additives to fodder, not for medical purposes, straw (forage), fresh vegetables, sanded paper for pets (litter), beverages for pets, cereal seeds, unprocessed, grains (cereals), cucumbers, hazelnuts, lobsters, live, potatoes, fresh, edible chews for animals, seed germ for botanical purposes, crayfish, live, coconuts, coconut shells, lettuce, rough cork, strengthening animal forage, crustaceans, live, garden herbs, fresh, squashes, spiny lobsters, live, leeks, lentils, fresh, almonds (fruits), maize, stall food for animals, straw mulch, mussels, live, by-products of the processing of cereals, for animal consumption, nuts (fruits), olives, fresh, oranges, palms (leaves of the palm tree), plants, dried, for decoration, mushrooms, fresh, pollen (raw material), leeks, protein for animal consumption, rice, unprocessed, rhubarb, fish spawn, beet, grains (seeds), shellfish, live, sesame, seedlings, products for animal litter, straw litter, bred stock, turf, natural, litter peat, grapes, fresh, flowers, dried, for decoration, truffles, fresh, fodder, salt for cattle, bird food, juniper berries, roots for food, lemons, citrus fruit, onions, fresh vegetables, sugarcane; edible flowers.

Class 32:        Beer; mineral water (beverages) and aerated mineral water and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for beverages; aperitifs, non-alcoholic, powders for effervescing beverages, pastilles for effervescing beverages, non-alcoholic cocktails, peanut milk (soft drink), essences for making beverages, fruit nectars, non-alcoholic, vegetable juices (beverages), isotonic beverages, lemonades, syrups for lemonade, lithia water, malt beer, milk of almonds (beverage), whey beverages, must, preparations for making liqueurs, sarsaparilla (soft drink), seltzer water, soda water, sherbets (beverages), table water, tomato juice (beverage), waters (beverages), preparations for making mineral waters; non-alcoholic honey-based beverages; non-alcoholic wines.

Class 33:        Alcoholic drinks, except beer; alcoholic essences, alcoholic extracts, alcoholic beverages containing fruit, alcoholic extracts containing fruit, aperitifs, cider, arrack (arak), perry, brandy, cocktails, curacao, distilled beverages, gin, hydromel (mead), kirsch, bitters, mead, rice alcohol, sake, rum, sake, brandy, spirits (beverages), piquette, gin, wine, whisky, vodka, alcohol containing milk beverages, milk predominating, fruit liqueurs, sparkling wine.

The contested goods are the following:

Class 29:        Charcuterie; meat; fish, not live; tinned seafood; crystallized fruits; jams; vegetables, preserved; eggs; milk products; milk powder.

Class 30:        Coffee; beverages (cocoa-based -); cocoa; tea; beverages (tea-based -); sugar; chocolate; honey; cakes; cereal preparations.

Class 31:        Trees; grains [cereals]; unprocessed beans; flowers, natural; plants; animals (live -); animal foodstuffs; nuts [fruits]; fruit, fresh; vegetables, fresh.

Class 32:        Malt beer; beer; ginger beer; beer wort; waters [beverages]; fruit juices; mineral water [beverages]; bottled drinking water; liqueurs (preparations for making -); beverages (preparations for making -).

Class 33:        Alcoholic beverages (except beers); fruit extracts, alcoholic; grape wine; alcoholic beverages containing fruit; distilled beverages; liqueurs; fruit (alcoholic beverages containing -); edible alcoholic beverages; whisky; sake.

Contested goods in Class 29

The contested charcuterie; meat; fish, not live; jams; vegetables, preserved; eggs; milk products; milk powder are also included in the opponent’s list of goods in Class 29. Therefore, they are identical.

The contested crystallized fruits are included in the broad category of the opponent’s preserved fruit. Therefore, they are identical.

The contested tinned seafood overlaps with the opponent’s shellfish, not live, since both categories include tinned shellfish. Therefore, they are identical.

Contested goods in Class 30

The contested coffee; beverages (cocoa-based -); cocoa; tea; beverages (tea-based -); sugar; chocolate; honey; cakes; cereal preparations are also included in the opponent’s list of goods in Class 30. Therefore, they are identical.

Contested goods in Class 31

The contested trees; grains [cereals]; unprocessed beans; flowers, natural; animals (live -); animal foodstuffs; nuts [fruits]; fruit, fresh; vegetables, fresh are also included in the opponent’s list of goods in Class 31 (including synonyms). Therefore, they are identical.

The contested plants include, as a broader category, the opponent’s living plants. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

Contested goods in Class 32

The contested malt beer; beer; waters [beverages]; fruit juices; mineral water [beverages]; liqueurs (preparations for making -) are also included in the opponent’s list of goods in Class 32 (including synonyms). Therefore, they are identical.

The contested ginger beer is an aerated drink made of cream of tartar, lemon juice, sugar, yeast and water, and flavoured with ginger (information extracted from Oxford English Dictionary online at http://www.oed.com). It is a naturally sweetened and carbonated, usually non-alcoholic, beverage. Consequently, the contested ginger beer is included in the broad category of, or overlaps with, the opponent’s other non-alcoholic drinks. Therefore, these goods are identical.

The contested beer wort is the infusion of malt or other grains that after fermentation becomes beer or may be used for the distillation of spirits (information extracted from Oxford English Dictionary online at http://www.oed.com). Consequently, the contested beer wort is included in the broad category of, or overlaps with, the opponent’s other preparations for beverages (other than syrups). Therefore, these goods are identical.

The contested bottled drinking water is included in the broad category of the opponent’s waters (beverages). Therefore, they are identical.

The contested beverages (preparations for making -) include, as a broader category, the opponent’s syrups and other preparations for beverages. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

Contested goods in Class 33

The contested alcoholic beverages (except beers); fruit extracts, alcoholic; alcoholic beverages containing fruit; distilled beverages; fruit (alcoholic beverages containing -); whisky; sake are also included in the opponent’s list of goods in Class 33 (including synonyms). Therefore, they are identical.

The contested grape wine is included in the broad category of the opponent’s wine. Therefore, they are identical.

The contested liqueurs include, as a broader category, the opponent’s fruit liqueurs. 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 edible alcoholic beverages are included in the broad category of the opponent’s alcoholic drinks, except beer. Therefore, they are identical.

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 are directed at the public at large and partly at business customers with specific professional knowledge or expertise in the beverage industry (e.g. fruit extracts, alcoholic in Class 33). The degree of attention is deemed average.

3. The signs

	ALLREAL
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). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The sequences of letters ‘ALL’ and ‘REAL’ are meaningful in certain territories, for example in those countries where English is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

The earlier mark is a figurative mark consisting of the word ‘REAL’ written in rather standard bold red lower case letters leaning slightly to the right. The word ‘REAL’ is followed by a device in blue that resembles a comma followed by a dash.

The contested sign is the word mark ‘ALLREAL’. In the case of word marks, the word as such is protected, not its written form. Therefore, it is irrelevant whether the word mark is depicted in lower or upper case letters, or in a combination thereof.

The word ‘REAL’, constituting the only verbal element of the earlier mark, is an English word that will be understood by the relevant public as referring to something ‘existing or occurring in the physical world; not imaginary, fictitious, or theoretical; actual’. This element is a vague adjective that, per se, has no direct connection to any of the relevant goods.

The figurative device resembling a comma followed by a dash in the earlier mark is an abstract element that does not convey a particular meaning.

The verbal element ‘ALLREAL’, constituting the contested sign, has no meaning as a whole for the public in the relevant territory. The Court has held that, although average consumers normally perceive a mark as a whole and do not proceed to analyse its various details when perceiving a word sign, they will break it down into elements that, for them, suggest a specific meaning or that resemble words known to them (13/02/2007, T-256/04, Respicur, EU:T:2007:46, § 57). Therefore, it is reasonable to assume that the English-speaking part of the public will split the element ‘ALLREAL’ into two parts, ‘ALL’ and ‘REAL’, because it will perceive both elements as meaningful.

In particular, the element ‘ALL’, included at the beginning of the contested sign, will be understood as ‘the whole quantity or amount of; totality of; every one of a class’ by the relevant English-speaking part of the public. The element ‘REAL’ in the contested sign will be perceived with the same meaning as that explained above.

The words ‘ALL’ and ‘REAL’, combined in the contested sign, may be perceived as a conceptual unit by the relevant English-speaking part of the public, indicating that the entirety of a specified or implied class is real, true or actual.

None of the elements of the marks describes or alludes to any of the essential characteristics of the relevant goods.

Consequently, neither of the marks has any elements that could be considered clearly more distinctive or more dominant (visually eye-catching) than other elements.

Visually, the signs coincide in the sequence of letters ‘REAL’, which constitute the only verbal element of the earlier mark and are included at the end of the contested sign, where they will be perceived as an independent meaningful element by the relevant English-speaking part of the public. However, the marks differ in the additional letters at the beginning of the contested sign, ‘ALL’. They also differ in the figurative elements of the earlier mark, namely the abstract device at the end of the verbal element and the slight stylisation and colours of the mark.

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

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘REAL’, present identically in both signs, which will be pronounced in two syllables. The pronunciation differs in the sound of the letters ‘ALL’ at the beginning of the contested sign, which will be pronounced as one syllable.

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

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Taking into account the fact that the contested sign may be perceived as a single conceptual unit, conveying an additional concept in comparison with the earlier mark, the marks are conceptually similar to an average degree, since they have the concept of ‘REAL’ in common, which is inherently distinctive in relation to the goods at issue.

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.

5. Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 8 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).

The goods are identical. The signs are similar on account of the coinciding word ‘REAL’, which is the only verbal element of the earlier mark and is reproduced in its entirety in the contested sign. The signs differ as a result of the figurative elements of the earlier mark, which are not particularly striking and will not obscure or camouflage the verbal element of the mark. They also differ in the additional letters at the beginning of the contested sign, ‘ALL’. These letters will not go unnoticed by the relevant public. Nevertheless, according to settled case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (02/11/2003, T-286/02, Kiap Mou, EU:T:2003:311; 15/02/2005, T-169/02, Negra modelo, EU:T:2005:46; 16/03/2005, T-112/03, Flexi Air, EU:T:2005:102; 08/03/2005, T-32/03, Jello Schuhpark, EU:T:2005:82; 06/10/2004, T-356/02, Vitakraft, EU:T:2004:292; 23/10/2002, T-104/01, Fifties, EU:T:2002:262; 04/05/2005, T-22/04, Westlife, EU:T:2005:160), and this element that the marks have in common retains an independent distinctive role in a composite mark (06/10/2005, C-120/04, Thomson Life, EU:C:2005:594, § 30).

As seen above, the compound ‘ALLREAL’, constituting the contested sign, does not convey a clear and evident meaning as a whole. Therefore, the relevant English-speaking part of the public will perceive this element as the mere sum of its parts, splitting it into the words ‘ALL’ and ‘REAL’. Both words of the contested sign are distinctive for all the relevant goods. Consequently, the word ‘REAL’ is distinguishable in the contested sign and plays an independent role within it. This coinciding element in the marks will also establish a conceptual link between the signs, thus further contributing to the finding of similarity between them.

Article 8(1)(b) EUTMR states that, upon opposition, an EUTM application shall not be registered if, because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark (emphasis added).

Account must also be taken of the principle that a likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the trade marks and between the goods or services. Accordingly, a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa. In the present case, the contested goods are identical to the goods covered by the earlier mark.

Consequently, consumers may legitimately believe that the contested trade mark, ‘ALLREAL’, is a new version or a brand variation of the earlier figurative mark, ‘REAL’, originating from the same undertaking as the earlier mark or from an economically linked undertaking. In other words, consumers may confuse the origins of the conflicting goods.

Therefore, the Opposition Division considers that there is a likelihood of confusion, including a likelihood of association, in relation to identical goods on the part of the English-speaking part of the public. 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.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 9 512 609. 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 as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

As the abovementioned earlier right leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier right invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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. In the present case the opponent did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.

The Opposition Division

Benjamin Erik WINSNER

Boyana NAYDENOVA

Pedro JURADO MONTEJANO

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.