OPPOSITION No B 2 651 506

Ameta Holding AD, Industrialna zona – gara Razgrad – Ptitseklanitsa, 7200 Razgrad

Bulgaria (opponent), represented by Dr. Emil Benatov & Partners, Asen Peykov Str. No.6, 1113 Sofia, Bulgaria (professional representative)

a g a i n s t

Ameva Fine Food Europe, 152 "6-th September" Bvd., office 3-4B, 4000 Plovdiv, Bulgaria (applicant).

On 21/06/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 651 506 is upheld for all the contested goods, namely

Class 29:        Meats; Dairy products and dairy substitutes; Processed fruits, fungi and vegetables (including nuts and pulses); Birds eggs and egg products; Fish, seafood and molluscs; Gumbo; Banana chips; Bisques; Legume salads; Bulgogi [Korean beef dish]; Preparations for making bouillon; Ox bone based broth (seolleongtang); Bouillon; Stock [prepared]; Stock cubes; White pudding; Vegetable burgers; Vegetarian sausages; Beef stew; Cooked meat dishes; Prepared snails [escargot]; Prepared salads; Ready cooked meals consisting wholly or substantially wholly of game; Ready cooked meals consisting wholly or substantially wholly of poultry; Ready cooked meals consisting wholly or substantially wholly of meat; Prepared meat dishes; Prepared meals consisting primarily of meat substitutes; Prepared meals consisting substantially of seafood; Tzatziki; Dairy-based dips.

2.        European Union trade mark application No 14 717 961 is rejected for all the contested goods. It may proceed for the remaining goods.

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

REASONS:

The opponent filed an opposition against some of the goods of European Union trade mark application No 14 717 961, namely against all the goods in Class 29. The opposition is based on, inter alia, Bulgarian trade mark registration No 36 682. The opponent invoked Article 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.

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 Bulgarian trade mark registration No 36 682.

1. The goods

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

Class 29:        Meat; fish; poultry and game; meat extracts; preserved, dried, cooked and roasted fruits and vegetables; jellies; jams; compotes; eggs; milk and milk products; edible oils and fats; bacon; preparations for making bouillon; bouillon concentrates; fresh and frozen poultry; meat jellies; charcuterie; olive oil, sunflower oil, corn oil, palm kernel oil, coconut oil, sesame oil and canola oil; coconut butter; potato chips; sausages; black pudding [blood sausage]; margarine; peanut butter; canned meat; salami; sausage; flat sausage; type of charcuterie made with cut pork and/or veal stuffed in the stomach of pork or mutton containing spices known as "babek"; ham; fillets; meat by-products; nuts, prepared for human consumption.

The contested goods are the following:

Class 29:        Meats; dairy products and dairy substitutes; processed fruits, fungi and vegetables (including nuts and pulses); birds eggs and egg products; fish, seafood and molluscs; gumbo; banana chips; bisques; legume salads; bulgogi [korean beef dish]; preparations for making bouillon; ox bone based broth (seolleongtang); bouillon; stock [prepared]; stock cubes; white pudding; vegetable burgers; vegetarian sausages; beef stew; cooked meat dishes; prepared snails [escargot]; prepared salads; ready cooked meals consisting wholly or substantially wholly of game; ready cooked meals consisting wholly or substantially wholly of poultry; ready cooked meals consisting wholly or substantially wholly of meat; prepared meat dishes; prepared meals consisting primarily of meat substitutes; prepared meals consisting substantially of seafood; tzatziki; dairy-based dips.

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 applicant argues that the earlier mark is effectively used for meat products whereas the contested mark covers mainly vegetable-based foods. Consequently, the goods should be held dissimilar according to the applicant. Nevertheless, the task of the Opposition Division is to compare the goods as they appear in the respective lists of goods and not only the goods for which the marks are allegedly used. The applicant’s argument must, therefore, be rejected.

Meats,  fish, preparations for making bouillon  are identically contained in both lists of goods (including synonyms).

The contested dairy products are synonymous with the opponent’s milk products. Consequently, they are identical.

The contested birds eggs are included in the broad category of the opponent’s eggs. Therefore, they are identical.

The contested seafood overlaps with the opponent’s fish because the term seafood includes sea fish. Therefore, they are identical.

In popular language, a fish is used to describe any animal living exclusively in the water, primarily denoting vertebrate animals provided with fins and destitute of limbs, but extended to include various cetaceans, crustaceans, molluscs, etc. Against this background and considering that there is no other heading which comprises seafood, the contested molluscs are considered to be included in the opponent’s broad term fish and are, therefore, identical.

The contested banana chips are included in the broad categories of, or overlap with, the opponent’s …dried … and roasted fruits. Therefore, they are identical.

The contested dairy substitutes are highly similar to the opponent’s milk products as they coincide in purpose and method of use, relevant consumer and distribution channels. Furthermore they are in competition.

The contested white pudding is highly similar to the opponent’s black pudding [blood sausage] because these are in fact the same products with the exception that white pudding does not contain blood. These goods have a similar nature and the same purpose and method of use. They also coincide in the relevant public, distribution channels and producers. Furthermore, they are in competition.

The contested vegetarian sausages are highly similar to the opponent’s sausage because they are in fact they same products with the exception that vegetarian sausages do not contain meat. These goods have a similar nature and the same purpose and method of use. They can also coincide in the relevant public and distribution channels. Furthermore, they are in competition.

The contested processed fruits, fungi and vegetables (including nuts and pulses) are at least similar to the opponent’s preserved, dried, cooked and roasted fruits and vegetables because preserving, drying, cooking and roasting are various types of ‘processing’. The goods have the same or similar nature, purpose and method of use. They coincide in the relevant public, sales outlets and can be in competition.

The contested egg products are similar to the opponent’s eggs because eggs are the basic ingredient of egg products. The goods have a similar nature, purpose and method of use. They coincide in the relevant public and sales outlets.

The contested gumbo is a type of stew consisting primarily of stock, meat or shellfish and of vegetables.  It is considered similar to the opponent’s meat because meat can be the basic ingredient of the stew. The goods have a similar nature, purpose and method of use. They coincide in the relevant public and sales outlets.

By the same token, the contested bulgogi [Korean beef dish], beef stew, cooked meat dishes, ready cooked meals consisting wholly or substantially wholly of game, ready cooked meals consisting wholly or substantially wholly of poultry, ready cooked meals consisting wholly or substantially wholly of meat, prepared meat dishes are considered similar to the opponent’s meat because meat (be it game, poultry or other types of meat) is the basic ingredient of those contested goods. These goods have a similar nature, purpose and method of use. They also coincide in the relevant public, distribution channels and producers.

The contested bisques is a type of soup typically based on a broth of crustaceans and is considered to be similar to the opponent’s bouillon concentrates (‘bouillon’ being a synonym for ‘broth’). These goods have a similar nature, purpose and method of use. They coincide in the relevant public, sales outlets and can be in competition.

The contested legume salads, prepared salads are at least similar to the opponent’s preserved, …  cooked … vegetables as they have a similar nature, purpose and method of use. They coincide in the relevant public, sales outlets and can be in competition.

The contested ox bone based broth (seolleongtang), bouillon, stock [prepared], stock cubes are at least similar to the opponent’s bouillon concentrates. These goods have a similar nature, purpose and method of use. They coincide in the relevant public, sales outlets and can be in competition.

The contested vegetable burgers are similar to the opponent’s preserved, dried, cooked and roasted …vegetables. This is because they have a similar nature, purpose and method of use. They coincide in the relevant public, sales outlets and can be in competition.

The contested prepared snails [escargot] are considered similar to the opponent’s fish (that includes various cetaceans, crustaceans or molluscs as mentioned above). These goods have a similar nature, purpose and method of use. They can also coincide in the relevant public and sales outlets.

The contested prepared meals consisting primarily of meat substitutes are similar to the opponent’s canned meat because the contested goods can be canned and the basic ingredient of the contested goods are substitutes of the opponent’s meat. The goods compared have a similar nature, purpose and method of use. They can be sold in the same shops, target the same public and can be in competition.

The contested prepared meals consisting substantially of seafood are considered similar to the opponent’s fish (that includes seafood) because seafood is the basic ingredient of the contested goods. The goods have a similar nature, purpose and method of use. They coincide in the relevant public and sales outlets.

The contested tzatziki (a yoghurt-based sauce served with grilled meats or as a dip) and the contested dairy-based dips are at least similar to the opponent’s milk products. The goods compared have a similar nature, purpose and method of use. They can be sold in the same shops, target the same public and can be in competition.

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 will be average.

The applicant claims that the consumers of the applicant’s and the opponent’s goods are different. However, the Opposition Division cannot agree with this argument because both the applicant’s and the opponent’s goods are foodstuffs aimed at the public at large (i.e. at the same consumers).

3. The signs

AMETA
Earlier trade mark	Contested sign

The relevant territory is Bulgaria.

The contested sign is depicted in red, black and white.

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 element ‘AMETA’ of the earlier mark and the element ‘AMEVA’ of the contested sign have no meaning for the relevant public and are, therefore, distinctive.

As regards the contested sign, it contains a distinctive verbal element ‘AMEVA’ and a less distinctive figurative element of a purely decorative nature, namely a ribbon on which the word ‘AMEVA’ is written. Therefore, the verbal element ‘AMEVA’ is more distinctive than the figurative element.

A negligible element refers to an element that due to its size and/or position is not noticeable at first sight or is part of a complex sign. In the contested sign, there is a miniscule inscription ‘FINE FOOD’, in the lower right corner of the mark that is barely perceptible. As this element is likely to be disregarded by the relevant public, it will not be taken into consideration.

The element ‘AMEVA’ in the contested sign is the dominant element as it is the most eye-catching.

Visually, the signs coincide in the string of letters ‘AME*A’ that is included in the most distinctive and dominant element ‘AMEVA’ of the contested sign, and in the only element forming the earlier mark. However, they differ in the letter ‘T’/’V’, the slight stylisation of the script and the weak figurative element of the contested sign.

Therefore, the signs are visually highly similar.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘AME*A’, present identically in both signs. The pronunciation differs only in the sound of the letter ‛T’/’V’.

Therefore, the signs are aurally highly similar.

Conceptually, although the public in the relevant territory will perceive the concept of a ribbon in the contested sign, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

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 goods have been found partially identical and partially similar (to various degrees). The earlier trade mark’s degree of distinctiveness per se is average and the degree of attention of the relevant public will be average.

The overall impressions created by the marks are highly similar because the most distinctive and dominant element of the contested sign, ‘AMEVA’, is visually and aurally similar to a high degree to the earlier mark ‘AMETA’. There is nothing to differentiate the marks conceptually because both words are meaningless.

Considering all the above, there is a likelihood of confusion on the part of the public.

The fact that the contested sign partly coincides with the applicant’s company name ‘Ameva Fine Food Europe’, as argued by the applicant, is irrelevant. The task of the Opposition Division is to compare the trade marks in dispute. The fact that the word elements of the contested sign are also included in the applicant’s company name has no impact on the assessment of likelihood of confusion between the marks.

The applicant also argues that it launched advertising of the contested sign in the European Union and submits some evidence of use of the sign. Regarding this claim, the Opposition Division reminds that the right to an EUTM begins on the date when the EUTM is filed and not before, and from that date on the EUTM has to be examined with regard to opposition proceedings. Therefore, when considering whether or not the EUTM falls under any of the relative grounds for refusal, events or facts which happened before the filing date of the EUTM are irrelevant because the rights of the opponent, insofar as they predate the EUTM, are earlier than the applicant’s EUTM.

The fact that the same contested trade mark has been successfully registered in Bulgaria without any opposition, as claimed by the applicant, has no relevance for the present proceedings because national and EUTM systems are autonomous. The fact that a parallel Bulgarian trade mark has not been opposed at the national office does not mean that there cannot be likelihood of confusion with respect to the same trade mark filed as an EUTM, provided the conditions of Article 8(1)(b) EUTMR are met. On this basis, the applicant´s argument in this regard is dismissed.

Therefore, the opposition is well founded on the basis of the opponent’s Bulgarian trade mark registration No 36 682. 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.

As the earlier Bulgarian trade mark registration No 36 682 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 rights invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).

Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(5) EUTMR.

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

María del Carmen SUCH SÁNCHEZ

Vít MAHELKA

Lucinda CARNEY

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.