OPPOSITION No B 2 573 775

Wessanen Benelux B.V., Hoogoorddreef 5, 2e etage, 1101 BA Amsterdam, Netherlands (opponent), represented by Novagraaf Nederland B.V., Hoogoorddreef 5, 1101 BA Amsterdam, Netherlands (professional representative)

a g a i n s t

REWE-Beteiligungs-Holding International GmbH, Domstr. 20, 50668 Köln, Germany (applicant), represented by Matthias Humborg – REWE-Zentralfinanz e.G. -, Domstr. 20, 50668 Köln, Germany (employee representative).

On 13/03/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 573 775 is upheld for all the contested goods.

2.        European Union trade mark application No 14 038 491 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 (in Classes 29, 30 and 31) of European Union trade mark application No 14 038 491 (figurative mark:
“). The opposition is based on, inter alia, European Union trade mark registration No 8 716 334 (figurative mark: “”). 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 8 716 334.

1. The goods

The goods in Classes 29, 30 and 31 on which, inter alia, the opposition is based are the following:

Class 29: Nutritional food; meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; broths, bouillons; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats; desiccated coconut and goods made therefrom; dried fruit and dried fruit mixes, preserved, dried and cooked fruit; snacks included in this class; dates; potato crisps; processed seeds; dried semi-tropical fruit, including figs; raisins; currents; (processed) soy beans; soya milk; (preparations for) breakfast drinks; prepared nuts; crystallized subtropical fruits.

Class 30: Foodstuffs; coffee, tea, cocoa, chocolate, chocolate products; (cane) sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionary, snack bars; cakes; ginger bread; rice biscuits; muesli and snack bars; muesli; cereal bars and cereal waffles; popcorn (waffles); crackers; hazelnut spreads; sweet spreads, savoury spreads; snacks, meals and substances for the preparation of meals; pasta; sauces for pasta and rice; salad dressings; snack foods; edible ices; gruel; honey, treacle; yeast, baking-powder; cereals; bran; rice; salt, mustard; vinegar; (preparations for) breakfast drinks; sauces (condiments); spices; spices and seasonings; flavouring; ice; nuts; sweets; liquorice and liquorice goods; dextrose; fruit sauces.

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; fresh fruits and vegetables; seeds for sowing; bran; grains; nuts; preparations for breakfast drinks; semi-tropical fruits; seeds as foodstuffs, in particular poppy seeds, linseed, sesame seeds, pine nuts; sunflower seeds.

The contested goods in Classes 29, 30 and 31 are the following:

Class 29: Meat, ham, bacon; Fish; Poultry; Game, game, not live; Shellfish; Salads of meat, fish, poultry and game; Frozen, preserved, dried, cooked, crystallised fruits and vegetables; Processed fruits, fruit pulp, fruit salads, fruit chips, fruit-based snack food; Frozen, preserved, cooked, dried, crystallised fruit, fruit slices; Fruit peel, pickled fruits; Apple purée; Coconuts, raisins, dates, figs; Cranberry sauce; Olives, preserved olives; Frozen, preserved, dried and cooked vegetables, in particular lentils, gherkins, tomatoes, carrots, onions, peas, beans, artichokes, broccoli; Pickles, piccalilli; Canned fruits; Vegetables, tinned; Sauerkraut; Foodstuffs of fermented vegetables; Fruit and vegetable paste, Fruit paste, Fruit purees, Tomato purée, For cooking, Tomato juice for cooking; Concentrated fruits and concentrated fruit products; Delicatessen salads of vegetable or green salads, fruit and vegetable salads, including the aforesaid goods in prepared and packaged form; Potato products of all kinds; In particular chips, Croquettes, Fried potatoes, Pre-cooked potatoes, Potato fritters, Potato dumplings, Potato dumplings, Hash brown potatoes, Croquettes, Potato pancakes, Potato chips, Sticks, Potato flakes; Semi-prepared and prepared meals, in particular meat, fish, poultry and game meals, soups (including instant soups and soup mixes), stews; Dried and liquid ready meals consisting of one or more of the following goods: meat, fish, vegetables, prepared fruits, cheese; Jellies, in particular meat, fruit and vegetable jellies; Jams, Fruit, stewed, Fruit spread, Marmalade, Fruit jellies, Jellies; Eggs, white of eggs, powdered eggs, yolk of eggs; Snail eggs; Milk and milk products, in particular drinking milk, goat's milk, flavoured milk, condensed milk, milk beverages, milk predominating, whey and milk beverages, skimmed milk, soured milk, sour cream, buttermilk, soya milk, curd, yoghurt, fruit yoghurt, natural yoghurt, yoghurt with added chocolate or cocoa, non-alcoholic pre-mixed milk beverages, milk predominating, yoghurt smoothies, kefir; Milk cream, Whipped cream, Curds, Fruit and herb quark desserts, Desserts, Mainly of milk and flavourings, with gelatine and/or starch as binding agents; Milk powder for food, flavoured milk powder for preparing beverages, cheese, in particular soft cheese, blue cheese, cheddar, cheese preparations, fresh cheese, cottage cheese; Tofu; Coffee cream, coffee whitener; Butter, butter substitutes, coconut butter, cocoa butter, clarified butter, buttercream, peanut butter, fat-containing mixtures for bread slices, spreads of edible fats and edible fat mixtures, margarine; Edible oils and fats, in particular fatty substances for the manufacture of edible fats; Olive oil for food, sunflower oil for food, sesame oil, groundnut oil, palm kernel oil for food, palm oil for food, rape oil for food, corn oil, coconut oil, coconut fat, edible bone oil, suet for food; Salted and unsalted nuts, In particular almonds, Peanuts and Other snacks, In particular crisps, Included in class 29; Bouillon, in particular bouillon being stock, extracts, concentrates; Soybean paste; Chickpea paste, sesame seed paste; Dried fruit; Sugar-coated and Glazed fruits and Vegetable; Sugar-coated and glazed fruits, fruit slices; Fruit-based snack food; All of the aforesaid goods included in class 29, including in frozen or preserved, sterilised, homogenised or prepared form.

Class 30: Coffee, Coffee beverages with milk, Cappuccino, Espresso, Decaffeinated coffee, Other beverages containing coffee, Artificial coffee, Chicory, Coffee essences, Coffee essences, Coffee flavorings [flavourings], Coffee (Unroasted -), Instant coffee, Instant beverages containing coffee, Coffee cartridges, Coffee in whole-bean form, Including all the aforesaid goods (where possible) in prepared form; Tea, in particular instant teas, iced tea, herbal teas, not medicinal, tea-based beverages, including the aforesaid goods, where possible, in prepared form; Cocoa, cocoa-based beverages, beverage powders containing cocoa, cocoa-based mixes, chocolate-based beverages, including the aforesaid goods, where possible, in prepared form; Sugar, glucose for food; Rice, rice-based snack food; Tapioca, sago; Chocolate, chocolate goods, marzipan (including as raw mixture), nougat, marzipan and nougat products, dessert bars, marshmallows, marshmallows, toffee; Mixtures for bread slices, in particular chocolate creams, nougat creams, made principally using sugar, cocoa, nougat, with added milk and/or fats; Sugar confectionary, lollipops, chewing gum, not for medical purposes, lozenges, confectionery, in particular fruit jellies, liquorice, pralines, including filled pralines, stick liquorice; Sweets, in particular caramels, sweets made with cocoa, peppermints, fruit sweets, ice sweets, gum sweets, milk sweets; Chewing gum; Confectionery, in particular peanut confectionery, fondants (confectionery), almond confectionery; Mint for confectionery; Sugar-free desserts; Flour and preparations made from cereals, in particular wheat flour, potato flour for food; Rusks; Hominy grits (for cooking); Baked goods, in particular bread, (including unleavened bread), bread rolls (including filled), baguettes (including filled), bagels (including filled), croissants, flatbreads, pretzels, crispbread; Pizzas, sandwiches; Tabbouleh; Pastry and confectionery, in particular buns, pasties, sponge cakes, cakes, tortes, gingerbread, muffins, doughnuts, brownies, macaroons; Biscuits, in particular butter biscuits, crackers (including the aforesaid goods in dough form); Cake mixes, cake paste, edible decorations for cakes, gluten for food; Oat flakes, corn flakes, cereal-based snack food, popcorn; Husked whole grain cereals, in particular rice, wheat, oats, barley, semolina, couscous, rye, millet, sesame, corn and buckwheat, including the aforesaid goods in the form of mixtures and other preparations and processed goods, in particular wheat bran, wheat germ, corn flour, husked barley, barley meal, crushed barley, muesli and muesli bars, consisting predominantly of chips (cereal products), milling products, pearled barley; Cereal-based snack food; Bread-crumb flour baking yeast, sweets and chocolate articles; Halvah; Cereals; Cereals; Malt for human consumption, malt extract for food, malt sugar; Farinaceous food pastes, In particular pasta, Turnovers, Spaghetti, Macaroni, Noodles, Ravioli, Vermicelli [noodles], Lasagne, Pizza crust, Prepared pizzas, Quiches; Desserts, mainly consisting of pasta; Leaven; Dried and liquid ready meals, mainly consisting of pasta or rice; Spring rolls, sushi; Capers; Savoury pastries, in particular crackers, cereal chips and other snacks; Tacos, nachos, tortillas; Farinaceous foods, pancakes, waffles, jellies, gruel, with a milk base, for food; Candy for food, caramels; Puddings, custard (including the aforesaid goods being instant mixes); Groats for human food, in particular oatmeal; Ready mixes, in particular prepared desserts, prepared baking mixes, prepared pie crust mixes; Soya flour; Pasties, in particular liver, poultry, game, fish, meat and vegetable pasties, including the aforesaid goods being pies; Gravy juices and meat juices, gravy; Dumplings; Essences for foodstuffs, except etheric essences and essential oils; Royal jelly for food, not for medical purposes; Sauces (condiments), In particular tomato sauces, Fruit sauces, Tomato ketchup, Dressings for salad, Dipping sauces, Marinades; Mayonnaise; Spices, in particular cinnamon, curry, vanilla, saffron, turmeric, ginger, aniseed , star aniseed, cloves (spice), pimentos, peppercorns, allspice, pepper, seasoning mixes, in particular weeds (condiment), chow-chow (condiment), chutneys (condiment), soya bean paste (condiment), relish (condiment); Nutmeg, natural sweeteners; Garden herbs, horseradish; Flavourings, in particular cake flavourings, for beverages and cakes, the aforesaid flavourings not including essential oils, flavourings made from fruit; Chocolate coated fruit and vegetables; Chocolate-coated fruits, fruit slices; Fruit sauces; Soya sauce; All of the aforesaid goods in class 30, including in frozen or preserved, sterilised, homogenised or prepared form.

Class 31: Grains and agricultural, horticultural and forestry products not included in other classes; Fresh fruits, In particular berries, Apples, Pears, Melons, Citrus fruit, fresh, Grapes, pineapple, Bananas, Grapefruits, Persimmons, apricots, Elderberries, Passionfruits, Grapefruit, Papayas, Peaches, Plums, Quinces, Cherries, Kiwi, Lychee; Fresh vegetables, In particular potatoes, Artichokes, Cauliflower, Chinese cabbage, Fennel, Kale, Ginger, Chard, Carrots, Capsicums, Parsnips, radishes, winter radishes, Brussels sprouts, beetroot, Rocket, Shallots, black salsify, asparagus, spinach, Pointed cabbages, Ground yam, Tomatoes, Garlic, Cress, Squash, cabbage turnips, Savoy cabbage, Marrow squash, Onions, Beet, fresh, Leeks, Leeks, Rhubarb, fresh, Maize, Marrons, olives (fresh), Beans, Peas, Cucumbers, Marrows; Fresh nuts and herbs; Potted fresh herbs; Pulses; Coconuts, Coconut shell; Seeds, bulbs and seedlings for plant breeding; Mushrooms (fresh); Fresh truffles; Salad, in particular lettuce, lamb's lettuce, chicory (salad); Garden herbs, fresh; Roots for food; Seeds, Live plants and natural flowers, In particular trees, Bushes, Seed germ for botanical purposes, Vine plants, Nettles, Bran, Pimentos; Wreaths of natural flowers, Christmas trees; Flower bulbs, Seeds for flowers; Dried plants; Natural turf; Peat (natural); Plant products and plant components, in particular raw barks, trunks of trees, unsawn timber, undressed timber, wood chips, cork, mulch, palms (leaves of the palm tree), pine cones; Barley, Grains [cereals], Oats, Hay, Hops, Hop cones, Rye seed, Wheat, Keels; Locust beans, malt; Cocoa beans, raw; Raw linseed; Residue in a still after distillation; Foodstuffs for animals, In particular bran mash, Rice flour, Algarobilla, Straw [forage], Meal for animals, Peanut cake for animals, Grains for animal consumption, Lime for animal forage, Strengthening animal forage, Dog biscuits, Yeast for animals, Bran mash, Edible chews for animals, Mash for fattening livestock, Beverages for pets, Bird food, Foodstuffs for cats; Protein for animal consumption; Additives to fodder, not for medical purposes; Edible chews for animals, edible bones and sticks for pets, cuttle bone; Scented sand for pets (litter).

An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods.

The terms ‘in particular’ and ‘including’, used in the applicant’s and opponent’s list of goods, indicate that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, they introduce a non-exhaustive list of examples (see the judgment of 09/04/2003, T-224/01, Nu Tride, EU:T:2003:107).

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

Meat, Fish, Poultry; Game; preserved, dried, cooked, fruits and vegetables; preserved, dried and cooked vegetables, in particular lentils, gherkins, tomatoes, carrots, onions, peas, beans, artichokes, broccoli; Jellies, in particular meat, fruit and vegetable jellies; Jams;  Jellies; Eggs; Dried fruit are identically contained in both lists of goods.

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

The contested bacon; Salads of meat, fish, poultry and game; Frozen, crystallised fruits and vegetables; Processed fruits, fruit pulp, fruit salads, fruit chips, fruit-based snack food; Frozen, preserved, cooked, dried, crystallised fruit, fruit slices; Fruit peel, pickled fruits; Apple purée; Coconuts, raisins, dates, figs; Cranberry sauce; Olives, preserved olives; Frozen, vegetables, in particular lentils, gherkins, tomatoes, carrots, onions, peas, beans, artichokes, broccoli; Pickles, piccalilli; Canned fruits; Vegetables, tinned; Sauerkraut; Foodstuffs of fermented vegetables; Fruit and vegetable paste, Fruit paste, Fruit purees, Tomato purée, For cooking, Tomato juice for cooking; Concentrated fruits and concentrated fruit products; Delicatessen salads of vegetable or green salads, fruit and vegetable salads, including the aforesaid goods in prepared and packaged form; Potato products of all kinds; In particular chips, Croquettes, Fried potatoes, Pre-cooked potatoes, Potato fritters, Potato dumplings, Potato dumplings, Hash brown potatoes, Croquettes, Potato pancakes, Potato chips, Sticks, Potato flakes; Semi-prepared and prepared meals, in particular meat, fish, poultry and game meals, soups (including instant soups and soup mixes), stews; Dried and liquid ready meals consisting of one or more of the following goods: meat, fish, vegetables, prepared fruits, cheese; Fruit, stewed, Fruit spread, Marmalade, cheese, in particular soft cheese, blue cheese, cheddar, cheese preparations, fresh cheese, cottage cheese; Tofu; Coffee cream, coffee whitener; Butter, butter substitutes, coconut butter, cocoa butter, clarified butter, buttercream, peanut butter, fat-containing mixtures for bread slices, spreads of edible fats and edible fat mixtures, margarine; Olive oil for food, sunflower oil for food, sesame oil, groundnut oil, palm kernel oil for food, palm oil for food, rape oil for food, corn oil, coconut oil, coconut fat, edible bone oil, suet for food; Salted and unsalted nuts, In particular almonds, Peanuts and Other snacks, In particular crisps, Included in class 29; Bouillon, in particular bouillon being stock, extracts, concentrates; Soybean paste; Chickpea paste, sesame seed paste; Sugar-coated and Glazed fruits and Vegetable; Sugar-coated and glazed fruits, fruit slices; Fruit-based snack food are included in the broad category of the opponent’s Nutritional food. Therefore, they are identical.

The contested game, not live is included in the broad category of the opponent’s Game food. Therefore, they are identical.

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

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

The contested white of eggs, powdered eggs, yolk of eggs; Snail eggs are included in the broad category of the opponent’s eggs. Therefore, they are identical.

The contested Milk and milk products, in particular drinking milk, goat's milk, flavoured milk, condensed milk, milk beverages, milk predominating, whey and milk beverages, skimmed milk, soured milk, sour cream, buttermilk, soya milk, curd, yoghurt, fruit yoghurt, natural yoghurt, yoghurt with added chocolate or cocoa, non-alcoholic pre-mixed milk beverages, milk predominating, yoghurt smoothies, kefir; Milk cream, Whipped cream, Curds, Fruit and herb quark desserts, Desserts, Mainly of milk and flavourings, with gelatine and/or starch as binding agents; Milk powder for food, flavoured milk powder for preparing beverages are included in the broad category of the opponent’s milk and milk products. Therefore, they are identical.

The contested Edible oils and fats, in particular fatty substances for the manufacture of edible fats are included in the broad category of the opponent’s edible oils and fats. Therefore, they are identical.

Contested goods in Class 30

Coffee; Artificial coffee, Tea, in particular instant teas, iced tea, herbal teas, not medicinal, tea-based beverages, including the aforesaid goods, where possible, in prepared form; Cocoa; Sugar; Rice; Tapioca, sago; Chocolate, chocolate goods, confectionery, in particular fruit jellies, liquorice, pralines, including filled pralines, stick liquorice; Sweets, in particular caramels, sweets made with cocoa, peppermints, fruit sweets, ice sweets, gum sweets, milk sweets; Confectionery, in particular peanut confectionery, fondants (confectionery), almond confectionery; Flour and preparations made from cereals, in particular wheat flour, potato flour for food; Pastry and confectionery, in particular buns, pasties, sponge cakes, cakes, tortes, gingerbread, muffins, doughnuts, brownies, macaroons; Sauces (condiments), In particular tomato sauces, Fruit sauces, Tomato ketchup, Dressings for salad, Dipping sauces, Marinades; Spices, in particular cinnamon, curry, vanilla, saffron, turmeric, ginger, aniseed, star aniseed, cloves (spice), pimentos, peppercorns, allspice, pepper, seasoning mixes, in particular weeds (condiment), chow-chow (condiment), chutneys (condiment), soya bean paste (condiment), relish (condiment) are identically contained in both lists of goods.

The contested Coffee beverages with milk, Cappuccino, Espresso, Other beverages containing coffee, Chicory, Coffee essences, Coffee essences, Coffee flavorings [flavourings], Instant beverages containing coffee, Coffee cartridges; cocoa-based beverages, beverage powders containing cocoa, cocoa-based mixes, chocolate-based beverages, including the aforesaid goods, where possible, in prepared form; glucose for food; rice-based snack food; marzipan (including as raw mixture), nougat, marzipan and nougat products, dessert bars, marshmallows, marshmallows, toffee; Mixtures for bread slices, in particular chocolate creams, nougat creams, made principally using sugar, cocoa, nougat, with added milk and/or fats; Sugar confectionary, lollipops, chewing gum, not for medical purposes, lozenges, Chewing gum; Mint for confectionery; Sugar-free desserts; Rusks; Hominy grits (for cooking); Baked goods, in particular bread, (including unleavened bread), bread rolls (including filled), baguettes (including filled), bagels (including filled), croissants, flatbreads, pretzels, crispbread; Pizzas, sandwiches; Tabbouleh; Biscuits, in particular butter biscuits, crackers (including the aforesaid goods in dough form); Cake mixes, cake paste, edible decorations for cakes, gluten for food; Oat flakes, corn flakes, cereal-based snack food, popcorn; Husked whole grain cereals, in particular rice, wheat, oats, barley, semolina, couscous, rye, millet, sesame, corn and buckwheat, including the aforesaid goods in the form of mixtures and other preparations and processed goods, in particular wheat bran, wheat germ, corn flour, husked barley, barley meal, crushed barley, muesli and muesli bars, consisting predominantly of chips (cereal products), milling products, pearled barley; Cereal-based snack food; Bread-crumb flour baking yeast, sweets and chocolate articles; Halvah; Cereals; Cereals; Malt for human consumption, malt extract for food, malt sugar; Farinaceous food pastes, In particular pasta, Turnovers, Spaghetti, Macaroni, Noodles, Ravioli, Vermicelli [noodles], Lasagne, Pizza crust, Prepared pizzas, Quiches; Desserts, mainly consisting of pasta; Leaven; Dried and liquid ready meals, mainly consisting of pasta or rice; Spring rolls, sushi; Capers; Savoury pastries, in particular crackers, cereal chips and other snacks; Tacos, nachos, tortillas; Farinaceous foods, pancakes, waffles, jellies, gruel, with a milk base, for food; Candy for food, caramels; Puddings, custard (including the aforesaid goods being instant mixes); Groats for human food, in particular oatmeal; Ready mixes, in particular prepared desserts, prepared baking mixes, prepared pie crust mixes; Soya flour; Pasties, in particular liver, poultry, game, fish, meat and vegetable pasties, including the aforesaid goods being pies; Gravy juices and meat juices, gravy; Dumplings; Essences for foodstuffs, except etheric essences and essential oils; Royal jelly for food, not for medical purposes; Mayonnaise; Nutmeg, natural sweeteners; Garden herbs, horseradish; Flavourings, in particular cake flavourings, for beverages and cakes, the aforesaid flavourings not including essential oils, flavourings made from fruit; Chocolate coated fruit and vegetables; Chocolate-coated fruits, fruit slices; Fruit sauces; Soya sauce; All of the aforesaid goods in class 30, including in frozen or preserved, sterilised, homogenised or prepared form are included in the broad category of the opponent’s Foodstuffs. Therefore, they are identical.

The contested Decaffeinated coffee, Coffee (Unroasted -), Instant coffee; Coffee in whole-bean form are included in the broad category of the opponent’s Coffee. Therefore, they are identical.

Contested goods in Class 31

Grains and agricultural, horticultural and forestry products not included in other classes; Fresh fruits, In particular berries, Apples, Pears, Melons, Citrus fruit, fresh, Grapes, pineapple, Bananas, Grapefruits, Persimmons, apricots, Elderberries, Passionfruits, Grapefruit, Papayas, Peaches, Plums, Quinces, Cherries, Kiwi, Lychee; Fresh vegetables, In particular potatoes, Artichokes, Cauliflower, Chinese cabbage, Fennel, Kale, Ginger, Chard, Carrots, Capsicums, Parsnips, radishes, winter radishes, Brussels sprouts, beetroot, Rocket, Shallots, black salsify, asparagus, spinach, Pointed cabbages, Ground yam, Tomatoes, Garlic, Cress, Squash, cabbage turnips, Savoy cabbage, Marrow squash, Onions, Beet, fresh, Leeks, Leeks, Rhubarb, fresh, Maize, Marrons, olives (fresh), Beans, Peas, Cucumbers, Marrows; Fresh nuts are identically contained in both lists of goods.

The contested Coconuts, Coconut shell are included in the broad category of, or overlap with, the opponent’s Fresh nuts. Therefore, they are identical.

The contested herbs; Potted fresh herbs; Pulses; Seeds, bulbs and seedlings for plant breeding; Mushrooms (fresh); Fresh truffles; Salad, in particular lettuce, lamb's lettuce, chicory (salad); Garden herbs, fresh; Roots for food; Live plants and natural flowers, In particular trees, Bushes, Seed germ for botanical purposes, Vine plants, Nettles, Bran, Pimentos; Wreaths of natural flowers, Christmas trees; Flower bulbs, Seeds for flowers; Dried plants; Natural turf; Peat (natural); Plant products and plant components, in particular raw barks, trunks of trees, unsawn timber, undressed timber, wood chips, cork, mulch, palms (leaves of the palm tree), pine cones; Barley, Grains [cereals], Oats, Hay, Hops, Hop cones, Rye seed, Wheat, Keels; Locust beans, malt; Cocoa beans, raw; Raw linseed; Residue in a still after distillation are included in the broad category of the opponent’s Agricultural, horticultural and forestry products not included in other classes. Therefore, they are identical.

The contested Seeds include, as a broader category, the opponent’s seeds as foodstuffs, in particular poppy seeds, linseed, sesame seeds, pine nuts. 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 Foodstuffs for animals, In particular bran mash, Rice flour, Algarobilla, Straw [forage], Meal for animals, Peanut cake for animals, Grains for animal consumption, Lime for animal forage, Strengthening animal forage, Dog biscuits, Yeast for animals, Bran mash, Edible chews for animals, Mash for fattening livestock, Beverages for pets, Bird food, Foodstuffs for cats; Protein for animal consumption; Additives to fodder, not for medical purposes; Edible chews for animals are included in the broad categories of, or overlap with, the opponent’s bran; grains; nuts; preparations for breakfast drinks; semi-tropical fruits; seeds as foodstuffs, in particular poppy seeds, linseed, sesame seeds, pine nuts; sunflower seeds. Therefore, they are identical.

The contested scented sand for pets (litter) has the same distribution channels, producers and relevant public as the opponent’s seeds as foodstuffs, in particular poppy seeds, linseed, sesame seeds, pine nuts. The foodstuffs can be for people and animals. Therefore, they are similar.

The contested edible bones and sticks for pets, cuttle bone have the same distribution channels, producers and relevant public as the opponent’s foodstuffs in Class 30 (see remark above). Therefore, they are similar.

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 and similar are directed at the public at large. The degree of attention is between average and low, because they are cheap goods for (daily) consumption.

3. The signs

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 element “Bon” of the contested sign is not meaningful in certain territories, for example, in those countries where French is not understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the Hungarian-speaking part of the public.

Both signs are label-like figurative signs. In the contested sign, the word ‘Bon’ is yellow and the second word, ‘Natura’, is in a yellow, bold typeface on a black ellipse, which is on a neon green background. A green leaf appears above the word ‘Bon’. In the earlier trade mark, the first letter is in upper case letters and the remaining letters are in lower case. This word is on a red label, which is on a second, larger, yellow label.

The verbal elements ‘Bon’ and ‘Zon’ have no meaning for the relevant public and are therefore distinctive.

When the coinciding element ‘natura’ is separated from the whole word, it will be associated by a part of the public with ‘nature’. Bearing in mind that the relevant goods are natural products, this element is non-distinctive for all the goods. For the other part of the public, this element has no meaning.

The signs, when perceived as a whole, have no meaning.

The signs have no elements that could be considered clearly more dominant than other elements.

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).

Visually, the signs have the same number of letters, namely nine. With the exception of the first letters, ‘Z’ versus ‘B’, the word elements are very similar. Both the figurative elements are in the form of a label (with a depiction of a leaf in the contested sign) and are depicted in slightly different ways. As the coinciding word element ‘natura’ is not distinctive for a part of the public, the signs are visually similar to an average degree. The degree of similarity is higher for the part of the public that does not understand the word ‘natura’, which therefore has a normal degree of distinctiveness.

Aurally, the figurative elements will not be taken into account. With the exception of the differing first letters, the signs will be pronounced identically. Taking into account that the common element ‘natura’ is not distinctive for a part of the public, the signs have the same sound, pronunciation and rhythm. Therefore, they are aurally similar to a higher than average degree. The degree of similarity is high for the part of the public that does not understand the word ‘natura’, which therefore has a normal degree of distinctiveness.

Conceptually, for the part of the public that does not understand the coinciding word ‘natura’, the signs are meaningless and, therefore, a conceptual comparison is not possible. For the part of the public that does understand this word, the degree of similarity is low, because it is based on non-distinctive elements.

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.

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, despite the presence of a non-distinctive element in the mark as stated above in section c) of this decision for a part of the public.

5. Global assessment, other arguments and conclusion

A likelihood of confusion on the part of the public must be assessed globally. That global assessment implies some interdependence between the factors taken into account and in particular a similarity between the marks and between the goods or services covered. Accordingly, a lesser degree of similarity between these goods or 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; and 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 19). The more distinctive the earlier mark, the greater the risk of confusion, and marks with a highly distinctive character, either per se or because of the reputation they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 18).

For the purpose of the global appreciation, the average consumer of the category of goods or services concerned is deemed to be reasonably well-informed and reasonably observant and circumspect. The consumer’s degree of attention is likely to vary according to the category of goods or services in question, and 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; and 30/06/2004, T-186/02, Dieselit, EU:C:2011:238, § 38).

The goods are identical and similar. The signs are similar at least to a higher than average degree.

Taking into account the higher than average degree of similarity between the signs, the normal degree of distinctiveness of the earlier trade mark, the low degree of attention paid by a part of the public and the identity and similarity between the goods, there is a likelihood of confusion within the meaning of Article 8(1)(b) EUTMR and, therefore, the opposition is upheld.

Contrary to the opinion of the applicant, the differences between the signs are not sufficient to distinguish them clearly from each other.

As the 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).

The opposition is well founded under Article 8(1)(b) EUTMR.

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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

Magnus ABRAMSSON

Peter QUAY

Claudia MARTINI

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 shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.