OPPOSITION No B 2 719 402
La Brava Beer, S.L., Guell, 58, 17001 Girona, Spain (opponent), represented by Gestimarcas, Calle Dr. Sirvent, 4 – Entlo. Dcha., 03160 Almoradí (Alicante), Spain (professional representative)
a g a i n s t
Alpha Biomeals International Ltd., 2/F Palm Grove House, Wickhams Cay, Road Town, Tortola, the Virgin Islands (applicant), represented by Pipparelli & Partners, Via Quadronno 6, 20122 Milano, Italy (professional representative).
On 21/06/2017, the Opposition Division takes the following
1. Opposition No B 2 719 402 is rejected in its entirety.
2. The opponent bears the costs, fixed at EUR 300.
The opponent filed an opposition against all goods of European Union trade mark application No 15 082 803 in Class 32. In its submission of further facts, evidence and arguments of 27/10/2016, in addition to the goods of Class 32, the opponent claimed that the opposition is against all goods of Class 43 of the contested sign. The opposition is based on European Union trade mark registration No 15 271 026. The opponent invoked Article 8(1)(a) and (b) EUTMR.
According to Article 41(1) EUTMR, the notice of opposition must be filed within a period of three months following the publication of the European Union trade mark application.
According to Rule 17(2) EUTMIR, if the notice of opposition has not been filed within the opposition period, the Office will reject the opposition as inadmissible. According to Rule 15(3)(a) EUTMIR, an indication of the goods and services against which the opposition is directed may be contained in the notice of opposition as in the absence of such an indication the opposition is considered to be directed against all of the goods and services of the opposed trade mark application.
The contested European Union trade mark application was published on 18/03/2016. The opposition period expired on 18/06/2016. In the notice of opposition only the goods of Class 32 of the sign were contested. In the light of Rule 15(3)(a) EUTMIR, by referring to all goods of Class 32 of the contested sign only, the opponent determined the scope of the opposition as covering the goods of Class 32. The opposition against the goods of Class 43 of the contested mark as made on 27/10/2016 was made after expiry of the opposition period and is therefore inadmissible. Accordingly, the review of the opposition will be limited to the goods of Class 32 of the contested sign.
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 32: Beer.
The contested goods are the following:
Class 32: Beers; Mineral and aerated waters and other non-alcoholic beverages; Fruit beverages and fruit juices; Syrups and other preparations for making beverages.
Some of the contested goods are identical to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.
- 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 assumed to be identical are mostly directed at the public at large. The degree of attention is considered to be average. The goods syrups and other preparations for making beverages are also directed at a professional public who will most probably display an average degree of attention.
- The signs
Earlier trade mark
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 earlier mark’s ‘INSPIRADA EN LA COSTA BRAVA’ is a Spanish expression meaning ‘Inspired by (the) Costa Brava’. In the Spanish, French, Italian and other Latin-based languages the element ‘LA’ positioned in the middle of the inner circle above the term ‘BRAVA’, will be perceived as the definite article, used to introduce a feminine noun and will be understood this way by a great part of the relevant public in the European Union. Both ‘INSPIRADA EN LA COSTA BRAVA’ and ‘LA’ are represented in significantly smaller letters than ‘BRAVA’ and are therefore not specifically eye-catching. Nevertheless, they may not be considered negligible elements, since they are clearly legible for the consumer, having also in mind the contrast of the white colour against the blue background. In view of the foregoing, ‘BRAVA’ is the most dominant element given its large lettering and central positioning.
‘BRAVA’ in the earlier mark has a meaning in part of the relevant territory, inter alia in Spain, where it has several meanings like ‘brave, fierce’, ‘bad-tempered’, ‘stormy, rough’. In Portuguese the word means ‘wild’ and in Italian it is a feminine adjective that means ‘good’. In most of the rest of the European Union languages (e.g. English, German, French, Bulgarian, Polish, Romanian) ‘BRAVA’ will be associated with the term ‘BRAVO’ which is an exclamation, a cheer stemming from the Italian language in the sense of ‘excellent!, well done!’ (Oxford English Dictionary). The Opposition Division agrees with the applicant that part of the consumers may associate ‘BRAVA’ with the Spanish costal area ‘Costa Brava’, which being a famous region for tourism, is known not only to the Spanish, but also to consumers from other European Union countries. The association of ‘BRAVA’ with the region of Costa Brava is further reinforced by the expression ‘INSPIRADA EN LA COSTA BRAVA’, as well as by the image of waves and the blue-white colour combination of the sign, which are clearly noticeable and easy to remember. Accordingly, for at least part of the public these elements of the mark will be perceived as referring to the quality of the goods in question, to the region from which the goods originate, or to characteristics of ingredients of the goods, i.e. being ’ wild’, in their natural state. Therefore, ‘BRAVA’ will be perceived as allusive or laudatory of the characteristics of the goods in question; therefore, it has a low degree of distinctive character. (03/05/2017, R 1845/2016-2, LA BRAVADE / VIÑA BRAVA, § 42)
It should also be noted that it is not excluded that for a small part of the public ‘BRAVA’ does not have any meaning.
In this regard, it should also be remembered that when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37). This premise applies to both of the marks at issue.
‘Bella’ in the contested mark in Italian means the feminine of ‘beautiful’. ‘Bella’ may also be seen as a female first name. ‘Brava’ in the contested sign will be perceived by the relevant public in accordance with the above. The device ‘&’ is commonly used with the meaning of ‘and’. Since the word elements of the contested sign are represented on one line, linked with the symbol ‘&’ without any space between them and have the same size, colour and font, it is not likely that one of them dominates the consumer’s perception over the other. Moreover, the presence of ‘&’ between both words strengthens the idea that these two words are linked and are therefore to be noticed and remembered together as one expression. The concentric circles, even though in colour, are not likely to attract the consumer’s attention because there is nothing original or eye-catching in the way they are represented.
Accordingly, for part of the public, the expression ‘Bella&Brava’ will be perceived as allusive or laudatory of the characteristics of the goods in question and would therefore have a low degree of distinctive character. For the remaining part of the public who see the term ‘Bella’ as a name and for those who perceive ‘Bella’ (and ‘Brava’) as meaningless, the expression will be of normal distinctiveness. Due to its position and size, ‘Bella&Brava’ taken as a whole is the dominant element in the mark.
Visually, the signs contain the same term ‘BRAVA’. However, there are immediately perceptible visual differences in the marks. In particular, they differ in their remaining elements, including among others, in the way ‘BRAVA’ is represented in both signs. The contested sign contains the term ‘Bella’ positioned before ‘&Brava’, which as mentioned above would be of more distinctive character than ‘Brava’ for part of the public and as such, easier to remember. Moreover, consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. Further, the earlier mark is strongly characterised by decorative elements, while the applied-for mark contains only three concentric circles in colour, which are not of such a nature to attract the consumer’s attention or to be remembered due to their originality, way of presentation or other factor. The blue and white colour of the earlier mark and the stylised image of waves play a significant role in determining the visual image that the sign creates. These elements do not have their counterparts in the contested mark. Therefore, the signs are similar to a low degree.
Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of ‘BRAVA’, present identically in both signs. Phonetically the signs differ in the pronunciation of their remaining word elements. Even assuming that consumers would not pronounce ‘INSPIRADA EN LA COSTA BRAVA’ and the feminine article ‘LA’ in the earlier mark, the overall phonetic impression from the signs is not very similar due to the difference in the rhythm, intonation and length of the signs – [BRA-VA] versus [BE-LA-AND-BRA-VA] taking English as an example), where it is only the last two syllables that coincide.
The argument of the opponent that it is only ‘Brava’ in the contested mark that should be taken into account and hence, the signs are identical aurally, may not be accepted. The opponent has not invoked arguments or provided evidence on why the first part of the sign and namely ‘Bella&’ would not be pronounced by the consumers. In view of the fact that ‘Bella&’ is represented in the same line as ‘Brava’, in identical size and font, and moreover – positioned before ‘Brava’, the Opposition Division finds that ‘Bella&’ would be pronounced by the consumers and there are no reasons for excluding the beginning of the sign from the aural comparison.
Accordingly, the signs are similar to a low degree.
Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. In addition to the conceptual connotations created by the word elements of the signs, the concept of ‘sea, sea coast’ created by the image of waves in the earlier mark and strengthened by the colours blue and white is clearly present in the earlier mark. On the other hand, the element ‘Bella’ in the contested sign would bring additional semantic associations to this part of the public that understands the meaning of the word. Irrespective of the fact that the signs will be associated for a part of the public with a similar meaning due to the common element ‘BRAVA’, in view of the presence of the concept of ‘sea, sea coast’ in the earlier mark and of ‘Bella’ in the contested sign, which do not have counterparts in the other sign, the compared signs are found to be similar at the most to an average degree.
Since 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 dominant element of the earlier trade mark is allusive or laudatory of the characteristics of the goods, as stated above in section c) of this decision. However, the combination of all elements in the mark, when taken as a whole, form together a unique unit, for which average distinctiveness of the mark should be acknowledged. Moreover, as stated above, it is possible that for part of the public the element ‘BRAVA’ is perceived as meaningless and for this part of the public the sign would have normal degree of distinctiveness.
- 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 (eighth recital of the CTMR). 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).
This 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).
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).
Although the signs coincide in the element ‘BRAVA’, the differences in them outweigh their similarities. It is the general principle that the assessment of the similarity between two signs should focus on the overall impression they create.
It was established, that the common element ‘BRAVA’ will be seen as allusive or laudatory of the characteristics of the goods in question for the greater part of the public. In view of the number of additional elements in the compared signs which form the overall impression they create, even the part of the public which will see ‘BRAVA’ as meaningless, would not be confused that the goods branded with the contested mark come from the same or an undertaking that is economically linked to the owner of the earlier trade mark.
The opponent’s remark that the three aspects of the comparison of signs do not always have the same relevance for the assessment of likelihood of confusion is not disputed. In the case at hand, the relevant goods are beverages and, since these are frequently ordered in noisy establishments (bars, nightclubs), the phonetic similarity between the signs is particularly relevant (15/01/2003, T-99/01, Mystery, EU:T:2003:7, § 48, which reflects this line of reasoning). However, this does not automatically mean that any degree of aural similarity might lead to confusion, and more specifically in this case where the aural comparison of the signs found a low degree of similarity.
Furthermore, since the goods in question are also often bought at different self-serve establishments where the consumers choose the products themselves making choice primarily on visual basis, it is not likely that the average consumer would not notice the visual differences in the signs.
Accordingly, despite the fact that the goods were assumed to be identical, due to the established low degree of visual and aural and at the most average degree of conceptual similarity between the signs, even for the part of the public for whom the earlier mark has a normal degree of distinctiveness, there is no likelihood of confusion.
For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR because the signs are obviously not identical.
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
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.