OPPOSITION DIVISION
OPPOSITION No B 1 863 904
Patrón Spirits International AG, Quaistr. 11, 8200 Schaffhausen, Switzerland
(opponent), represented by Marks & Clerk LLP, 1 New York Street, Manchester
M1 4HD, United Kingdom (professional representative)
a g a i n s t
Vedozi Limited t/a CintronAfrica, 7A Katampe Estate, Phase 2, Abuja, Nigeria
(applicant), represented by Engin-Deniz Reimitz Hafner Rechtsanwälte KG, Marc-
Aurel-Straße 6/5, 1010 Wien, Austria (professional representative).
On XX/11/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 1 863 904 is upheld for all the contested goods.
2. European Union trade mark application No 9 764 358 is rejected in its entirety.
3. The applicant bears the costs, fixed at EUR 650.
Preliminary remark
As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95
have been repealed and replaced by Regulation (EU) 2017/1001 (codification),
Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU)
2017/1431, subject to certain transitional provisions. All the references in this
decision to the EUTMR, EUTMDR and EUTMIR shall be understood as references to
the Regulations currently in force, except where expressly indicated otherwise.
REASONS
Initially, the opponent filed an opposition against some of the goods of European
Union trade mark application No 9 764 358, ‘CINTRON’, namely against all the
goods in Class 33. After a division of the application on 28/07/2011, the goods in
Class 33 are the only goods covered by this application and therefore the opposition
is now directed against all the goods of the application. The opposition is based on
European Union trade mark registration No 6 260 889, ‘CITRÓNGE’. The opponent
invoked Article 8(1)(b) and Article 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
Decision on Opposition No B 1 863 904 page: 2 of 5
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.
a) The goods
The goods on which the opposition is based are the following:
Class 33: Alcoholic beverages (except beers) and liqueurs.
The contested goods are the following:
Class 33: Alcoholic beverages (except beers).
Alcoholic beverages (except beers) are identically contained in both lists of goods.
b) 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 are directed at the public at
large. The degree of attention is average.
c) The signs
CITRÓNGE CINTRON
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.
Decision on Opposition No B 1 863 904 page: 3 of 5
The words ‘CITRÓNGE’ and ‘CINTRON’ are not meaningful in certain territories, for
example in those countries where French and Spanish are not understood.
Consequently, the Opposition Division finds it appropriate to focus the comparison of
the signs on the English-speaking part of the public.
The earlier mark is the word mark ‘CITRÓNGE’. It will be perceived as a foreign
word, but has no meaning for the relevant public and is, therefore, distinctive.
The contested mark is the word mark ‘CINTRON’, which has no meaning for the
relevant public. It is, therefore, distinctive.
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.
Visually, the signs coincide in the first letters ‘CI’ and in the letters ‘TRON’, although
there is an acute accent over the letter ‘O’ in the earlier mark. They differ in the third
letter, ‘N’, of the contested mark, which has no counterpart in the earlier sign, and in
the last letters, ‘GE’, of the earlier mark, which have no counterparts in the contested
mark.
Therefore, the signs are visually similar to an average degree.
Aurally, the pronunciation of the signs coincides in the sound of the letters
‛CI*TRON’, present identically in both signs. The acute accent over the letter ‘O’ in
the earlier mark results in no aural difference in English. The pronunciation differs in
the sound of the third letter, ‛N’, of the contested mark and in the sound of the last
letters, ‘GE’, of the earlier sign, neither of which has a counterpart in the other mark.
Therefore, the signs are aurally similar to an average degree.
Conceptually, neither of the signs has a meaning for the public in the relevant
territory. Since a conceptual comparison is not possible, the conceptual aspect does
not influence the assessment of the similarity of the signs.
As the signs have been found similar in at least one aspect of the comparison, the
examination of likelihood of confusion will proceed.
d) 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.
Decision on Opposition No B 1 863 904 page: 4 of 5
e) Global assessment, other arguments and conclusion
Evaluating likelihood of confusion 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).
Likelihood of confusion covers situations where the consumer directly confuses the
trade marks themselves, or where the consumer makes a connection between the
conflicting signs and assumes that the goods/services covered are from the same or
economically linked undertakings.
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).
In the present case, the goods are identical. The signs are visually and aurally similar
to an average degree. The degree of attention is average and the earlier mark enjoys
a normal degree of distinctive character.
It should be borne in mind that 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 (see judgment of 15/01/2003,
T-99/01, Mystery, EU:T:2003:7, § 48, which reflects this line of reasoning).
The signs coincide in the letters ‘CI*TRON’, although the letter ‘O’ has an acute
accent in the earlier mark. This accent has, however, no relevance for the English-
speaking public, although it might indicate that the mark is a foreign word. Therefore,
the marks coincide in six out of eight letters in the earlier mark and seven letters in
the contested sign, in the same order. The beginnings of the marks are identical, ‘CI’.
The differences between the signs are not sufficient to prevent a likelihood of
confusion on the part of the English-speaking public.
Considering all the above, there is a likelihood of confusion on the part of the
English-speaking part of the public. As stated above in section c) of this decision, a
likelihood of confusion for only part of the relevant public of the European Union is
sufficient to reject the contested application.
Therefore, the opposition is well founded on the basis of the opponent’s European
Union trade mark registration No 6 260 889. It follows that the contested trade mark
must be rejected for all the contested goods.
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 109(1) EUTMR, the losing party in opposition proceedings must
bear the fees and costs incurred by the other party.
Decision on Opposition No B 1 863 904 page: 5 of 5
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 Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former
Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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
André Gerd Günther
BOSSE
Lena FRANKENBERG
GLANTZ
Plamen IVANOV
According to Article 67 EUTMR, any party adversely affected by this decision has a
right to appeal against this decision. According to Article 68 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 for
appeal must be filed within four months of the same date. The notice of appeal will be
deemed to have been 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 Article 109(8) EUTMR
(former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be
filed within one month of the date of notification of this fixation of costs and will be
deemed to have been filed only when the review fee of EUR 100
(Annex I A(33) EUTMR) has been paid.