OPPOSITION No B 2 570 177

Eckes-Granini Deutschland GmbH, Ludwig-Eckes-Platz 1, 55268 Nieder-Olm, Germany (opponent), represented by Heinrich Prinz Reuss, Eckes-Granini Group GmbH, Ludwig-Eckes-Platz 1, 55268 Nieder-Olm, Germany (employee representative)

a g a i n s t

Puur, Naamloze Vennootschap, Edingensesteenweg 196, 1500 Halle, Belgium (applicant), represented by Gevers, Brussels Airport Business Park, Holidaystraat 5, 1831 Diegem, Belgium (professional representative).

On 05/07/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 570 177 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 14 015 441, namely against all of the goods in Classes 29, 30, 31, 32 and 33. The opposition is based on international trade mark registration No 1 067 703 designating the European Union. 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.

1. The goods and services

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

Class 29:         Meat, fish, poultry and game, meat extracts; frozen, preserved, dried and cooked fruits and vegetables; jellies, jams; fruit sauces; eggs, milk and milk products; edible oils and fats.

Class 30:         Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; bread, pastry and confectionery, filled and unfilled chocolates and all other chocolate products (not included in other classes), candies, fruit gum and chewing gum (except for medical purposes) and other sweets, ices, honey, treacle, yeast, baking powder, salt, mustard; vinegar, sauces (condiments), spices, ice for refreshment.

Class 32:         Beers; mineral waters and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

The contested goods are, after a restriction by the applicant on 01/09/2015, the following:

Class 29:         Pre-packaged meals consisting principally of poultry, fish, meat and game; meat, prepared meats, charcuterie, fish, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, jellies, jams, compotes, milk and milk products, edible oils and fats, margarine, herb butter, prepared meals included in this class, snacks included in this class, soups.

Class 30:         Prepared meals based on pasta or rice; coffee, coffee beans, instant coffee, coffee pads, tea, cocoa, sugar, rice, coffee substitutes, chocolate spread, chocolate, cereals, bread, pastry and confectionery, confectionery, cookies, cakes, waffles, biscuits, ice cream, honey, sauces (condiments), pasta sauces, pasta, quiches, prepared meals included in this class.

Class 31:         Fresh fruits and vegetables.

Class 32:         Beers; fruit beverages and fruit juices; syrups and other preparations for making beverages; all the afore-mentioned goods not being energy drinks.

Class 33:         Alcoholic beverages (except beers).

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 and services listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark.

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 assumed to be identical are directed at the public at large. The degree of attention is average.

3. The signs

High C
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 earlier mark is a word mark consisting of the word ‘High’, followed by the letter ‘C’. In case of word marks the words themselves are protected, not their written form. Therefore, it is irrelevant whether a word mark is represented in lower or upper case or a combination of those letters.

The contested sign is a figurative mark consisting of the letter ‘C’ in a bold black typeface with some white stripes inside and slightly inclined to the left.

The earlier mark and the contested sign have no elements that could be considered clearly more dominant (visually eye-catching) than other elements.

The letter ‘C’ that the signs have in common will be perceived by the relevant public as a letter of the Latin alphabet (see, for example, 08/05/2012, T-101/11, G, EU:T:2012:223, § 56). The distinctiveness of this letter is average, since it does not refer to any of the characteristics of the relevant goods.

The word ‘high’ of the earlier mark will be perceived by at least a part of the relevant public as referring to ‘being a relatively great distance from top to bottom; situated at or extending to a relatively great distance above the ground or above sea level; extending from an elevation; greater than normal in degree, intensity or amount’ (see Collins English Dictionary online). However, for another part of the public that is not acquainted with the English language, this word is meaningless. In any case, this word is not descriptive, allusive or otherwise weak with respect to the relevant goods.

This contrasts to the opponent, in its observations, where it points out that the word ‘High’ is descriptive and could mean also ‘rich’ or ‘much’ and that the letter ‘C’ could stand for the ‘vitamin c’. However, in the Opposition Division’s opinion such associations are rather unlikely to be made by the relevant consumer, because there is too much of a mental leap to reach those perceptions. Consequently, the elements of both marks are distinctive.

Visually, the signs coincide in the letter ‘C’, which is placed as the second element in the earlier mark, while it is the only letter of which the contested sign is composed. However, they differ in the first distinctive word of the earlier mark ‘High’ and in the typeface used in the contested sign for the letter ‘C’.

 

The length of the signs may influence the effect of the differences between them. The shorter a sign, the more easily the public is able to perceive all of its single elements. Therefore, in short words small differences may frequently lead to a different overall impression. In contrast, the public is less aware of differences between long signs. The contested sign consists only of one letter and is, therefore, a very short mark.

Furthermore, the first parts of the conflicting marks are different, ‘High‘ versus the letter ‘C’. Consumers generally tend to focus on the first element of a sign when being confronted with a trade mark. This is justified by the fact that 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.

Therefore, the signs are visually 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 the letter ‛C’, present identically in both marks, which is, however, placed and, therefore pronounced, in different positions. The earlier mark is pronounced in two syllables /High/ and /C/ and the contested sign in one syllable /C/; the first syllable of the earlier mark /High/ is not shared by the contested sign and the marks have different beginnings, where the consumer focuses normally its first attention. The marks also have a different intonation and rhythm. The marks are aurally similar to a low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks and their particular elements. The signs are conceptually similar to a low degree, given that they coincide in the concept conveyed by the letter ‘C’, included in both signs. The presence of the word ‘High’, if understood, gives an additional meaning to the earlier mark.

As the signs have been found similar (to a low degree) 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.

5. Global assessment, other arguments and conclusion

A likelihood of confusion (including a likelihood of association) 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.

All the contested goods are assumed identical to those of the earlier mark and the degree of attention of the public is average. The earlier mark has a normal degree of distinctiveness.

The signs have been found to be visually, aurally and conceptually similar to a low degree. 

In the present case, the Opposition Division is of the opinion that the low visual and phonetic similarity between the signs is not enough to lead, in any case, to a likelihood of confusion.  

The marks, taken as a whole, show overall more differences than similarities, in particular at their beginnings, where the consumer’s attention is generally focused, and taking into account that the contested sign is a very short one. The minor visual and phonetic similarities are not strong enough to induce the public to believe that the goods that are sold under the signs come from the same or from economically-linked companies.

It remains necessary to consider the opponent’s argument that the earlier trade mark,  characterised by the presence of the letter ‘C’ constitutes a ‘family of marks’ or ‘marks in a series’. In its view, such a circumstance is liable to give rise to an objective likelihood of confusion insofar as the consumer, when confronted with the contested mark which contains the same letter as the earlier mark, will be led to believe that the goods identified by that mark may also come from the opponent. In fact, the concept of the family of marks was exhaustively analysed by the General Court in its judgment of 23/02/2006, T-194/03, Bainbridge, EU:T:2006:65. When the opposition to a European Union trade mark is based on several earlier marks and those marks display characteristics which give grounds for regarding them as forming part of a single ‘series’ or ‘family’ a likelihood of confusion may be created by the possibility of association between the contested trade mark and the earlier marks forming part of the series. However, the likelihood of association described above may be invoked only if two conditions are cumulatively satisfied. Firstly, the proprietor of a series of earlier registrations must furnish proof of use of all the marks belonging to the series or, at the very least, of a number of marks capable of constituting a ‘series’. However, in the present case, the opponent failed to prove that it uses a family of ‘C’ marks, and moreover that it uses such a family in the same fields as those covered by the contested trade mark. The evidence filed by the opponent mentions only that the opponent is the owner of three trade marks, namely ‘Hohes C’, ‘Extra C’ and Reiches C’ and their registration numbers. Nevertheless, without any further arguments and evidence of use of the marks referred to by the opponent, this claim must be dismissed as unfounded.

Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

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 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

Martin MITURA

Chantal VAN RIEL

Saida CRABBE

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.