OPPOSITION No B 2 612 532
S.e.e. Mayte Sauveur et Fils, Maison Eskerrainia, 64220 Saint-Jean-Le-Vieux, France (opponent), represented by Aquinov, Allée de la Forestière, 33750 Beychac & Caillau, France (professional representative)
a g a i n s t
Boqueta Cuatro, C/ Alcala 122, sotano A, 28009 Madrid, Spain (applicant), represented by Pons Consultores de Propiedad Industrial S.A., Glorieta Rubén Darío 4, 28010 Madrid, Spain (professional representative).
On 14/06/2017, the Opposition Division takes the following
1. Opposition No B 2 612 532 is rejected in its entirety.
2. The opponent bears the costs, fixed at EUR 300.
The opponent filed an opposition against some of the goods and services of European Union trade mark application No 14 482 111, namely against all of the goods in Class 29. The opposition is based on European Union trade mark registration No 13 028 949 and French trade mark registration No 3 637 085. The opponent invoked Article 8(1)(b) EUTMR.
The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 13 028 949.
Earlier trade mark
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 29: Meats; sausages; sausages; salted meats.
The contested goods are the following:
Class 29: Croquettes.
As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services are not regarded as being similar or dissimilar to each other on the ground that they appear in the same or different classes under the Nice Classification.
The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.
Contested goods in Class 29
The contested croquettes are a prepared meal consisting of a ‘small, rounded mass of food, such as meat, fish, or potato, that has been cut into small pieces, pressed together, covered in breadcrumbs and fried’ (information extracted from Cambridge Dictionary on 26/05/2017 at http://dictionary.cambridge.org/dictionary/english/croquette, which fall into the category of foodstuffs. The only connection between these goods and the opponent’s meats; sausages; sausages; salted meats is that the opponent’s goods can be used as ingredients for the preparation of croquettes. However, the mere fact that one ingredient is needed for the preparation of a foodstuff will generally not be sufficient in itself to show that the goods are similar, even though they all fall under the general category of foodstuffs (26/10/2011, T-72/10, Naty’s, EU:T:2011:635, § 35-36). The goods in question have the same broad purpose of providing nutrition; however, they differ in nature, as the contested goods are prepared meals and the opponent’s goods are raw foods, and the methods of use are also different. Furthermore, these goods do not generally have the same manufacturers and they are not normally offered in the same sections of retail outlets (supermarkets) or specialised shops. In addition, they are not considered complementary to each other, because this measure applies only to the use of goods and not to their production process (11/05/2011, T-74/10, Flaco, EU:T:2011:207, § 40; 11/12/2012, R 2571/2011-2, FRUITINI, § 18). For all the above reasons, the goods do not have sufficient factors in common to find some degree of similarity. Therefore, they are considered dissimilar.
According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.
The opponent has also based its opposition on French trade mark registration No 3 637 085 . This figurative mark covers the goods meats; sausages in Class 29. The outcome cannot be different with respect to these goods for the reasons give above with regard to the goods covered by the opponent’s EUTMR for which the opposition has already been rejected.
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
Pedro JURADO MONTEJANO
Begoña URIARTE VALIENTE
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.