OPPOSITION DIVISION

OPPOSITION No B 2 509 902

Kaufland Warenhandel GmbH & Co. KG, Rötelstr. 35, 74172 Neckarsulm,

Germany (opponent), represented by Boehmert & Boehmert

Anwaltspartnerschaft mbB – Patentanwälte Rechtsanwälte, Hollerallee 32, 28209

Bremen, Germany (professional representative)

a g a i n s t

Petra Magyar-Evellei, Korisfa u. 4. 2/5, 1188 Budapest, Hungary (applicant).

have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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

The opponent filed an opposition against all the goods of European Union trade mark

application No 13 597 489 for the figurative mark , namely against all

the goods in Classes 29, 30 and 32. The opposition is based on international trade

mark registration No 1 011 239 designating the European Union for the figurative

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.

a) The goods

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

Class 30: Confectionery and chocolate products, also in bar form.

The contested goods are the following:

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.

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 assumed to be identical are goods of daily

consumption directed at the public at large.

mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95,

Sabèl, EU:C:1997:528, § 23).

When assessing the similarity of the signs, an analysis of whether the coinciding

components are descriptive, allusive or otherwise weak is carried out to assess the

extent to which these coinciding components have a lesser or greater capacity to

indicate commercial origin. It may be more difficult to establish that the public may be

confused about origin due to similarities that pertain solely to non-distinctive

elements.

The English word ‘COCO’, either alone (as it appears in the contested sign) or in

combination with ‘NUT’ (as it appears in the earlier mark), makes reference to the

‘Kokosnuss’ in German, ‘coco’ in Spanish and Portuguese and ‘kokosnöt’ in Swedish.

All of the relevant goods can contain coconut or have a coconut flavour. In relation to

these goods, the part of the relevant public that understands the meaning of the

words ‘COCO’ and ‘COCONUT’ may perceive them as a reference to the

characteristics of the relevant goods, and therefore as descriptive.

However, for part of the relevant public, namely the Hungarian-, Greek- and Latvian-

speakers, the terms ‘COCO’ and ‘COCONUT’ are distinctive as they have no

meaning in the corresponding language and the equivalent terms in these languages,

namely ‘kókuszdió’ (Hungarian), ‘καρύδα’ (Greek) and ‘kokosrieksts’ (Latvian) are not

sufficiently similar for the consumer to perceive the words ‘COCO’ and ‘COCONUT’

Hungarian) with the aforementioned equivalents in their language. In addition, the

terms ‘COCO’ and ‘COCONUT’ cannot be considered to be basic English terms that

would be understood throughout the European Union. Consequently, these terms

must be considered inherently distinctive for the Hungarian-, Greek- and Latvian-

speaking public.

and have a normal degree of distinctiveness, as this is the most advantageous

white upper case letters in a central position with the number ‘24’ in yellow bold font

below. These verbal elements are placed in the centre of a green and white vortex.

For the reasons set out above, the element ‘COCO’ is inherently distinctive for the

public as referring to the figure it identifies. In relation to the relevant goods, it is not

available any time (24 hours). As such, it is considered to be less distinctive for the

bold dark title case letters, a small figurative element on top that depicts two squares

and two triangles, which might be perceived as a stylised letter ‘K’ and which are

placed within an inner and an outer frame. The earlier mark also contains the word

‘CLASSIC’ written in small white title case letters within the outer frame below the

stylised letter ‘K’.

As mentioned above, the element ‘COCONUT’ is inherently distinctive for the

Hungarian-, Greek- and Latvian-speaking public.

The English word ‘CLASSIC’ of the earlier mark will be understood by the Hungarian,

Greek and Latvian-speaking part of the public in the relevant territory as meaning,

inter alia, ‘serving as a standard or model of its kind’

(www.collinsdictionary.com/dictionary/english/classic). This part of the non-English-

speaking public in the relevant territory will perceive the aforementioned meaning

because of the widespread use of the word ‘CLASSIC’ and similar equivalents in

(klasisks). Bearing in mind that the relevant goods are all foodstuffs and beverages, it

As regards the figurative elements of the signs, it must also be borne in mind that, in

principle, the verbal components usually have a stronger impact on the consumer

than the figurative components when signs consist of both verbal and figurative

components. 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).

both signs. However, they differ in all other verbal and figurative elements of varying

stronger impact as mentioned above, in the present case, the visual overall

verbal elements but also due to the different stylisation of the signs.

The relevant consumers, when perceiving a verbal sign, will not break it down into

several elements unless these elements suggest a concrete meaning, or resemble

of letters as an independent element within the earlier mark.

Therefore, it is concluded that the signs are not visually similar.

Accordingly, the earlier sign will be pronounced /ka tslɑʃʃits tsotso nut/ in

Hungarian, /k klas.ɪk kokonut/ in Greek and /ka tslassits tsuotsuo nut/ in Latvian while

the contested sign will be pronounced /tsotso hhusonneɟ/ in Hungarian, /koko

ikositesera/ in Greek and /tsuotsuo divdesmittʃetʀi/ in Latvian.

While the signs coincide in the sound of the letters ‘COCO’, their pronunciation differs

significantly in all other elements. Even assuming that the relevant consumer would

refer to the earlier mark just as ‘COCONUT’, the relevant consumer would therefore

still perceive clear aural differences. Apart from the differences arising from the

pronunciation of the element ‘24’, which is less distinctive as mentioned above, there

are also differences in the pronunciation of the elements ‘COCO’ and ‘COCONUT’

alone. The speech rhythm differs due to the additional syllable in the earlier sign and

the intonation shifts from the first syllable in case of ‘COCO’ to the last syllable in

case of ‘COCONUT’.

The signs will be associated with a different meaning arising in the case of the earlier

be noted that these conceptual differences will not have a great impact on the

consumer as they arise from weak elements.

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

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its

Greek and Latvian-speaking public in the relevant territory the earlier trade mark as a

distinctiveness of the earlier mark must be seen as normal, despite the presence of a

weak element in the mark, as stated above in section c) of this decision.

compared by making an overall assessment of the visual, aural and conceptual

impression given by the marks, bearing in mind, in particular, their distinctive and

‘COCO’. As set out above in section c) this common element, alone or in combination

with ‘NUT’, will be understood in many Member States of the European Union as

referring to the characteristics of the goods and will therefore be seen as non-

distinctive.

However, there are some territories, namely Hungary, Greece or Latvia, where the

words ‘COCO’ and ‘COCONUT’ will not be understood. The Opposition Division has

therefore focused its analysis on these territories where the public is most prone to

confuse the marks at issue.

The goods are assumed to be identical and the signs have been found to be visually

and conceptually dissimilar. Aurally they are only similar to a low degree. The

relevant public is the public at large displaying an average level of attention at the

time of purchase. The distinctiveness of the earlier mark must be seen as normal for

the Hungarian, Greek and Latvian-speaking public.

Evaluating likelihood of confusion implies some interdependence between the

true that identity of the goods, as assumed in the present case, may sometimes be

Opposition Division holds the view that there are still sufficient differences between

the marks to enable the consumer to safely distinguish between them. In particular,

therefore be perceived as a complex logo, a combination of various verbal and

figurative elements, the consumer, when confronted with the earlier mark, will

primarily perceive a stylised word ‘COCONUT’ which is visually dominant. For the

reasons set out above, it will not be broken down into various elements, but will be

perceived as a whole. The relevant consumer is therefore unlikely to perceive

‘COCO’ as a separate element in the earlier sign.

are fairly ordinary consumer products that are commonly purchased in supermarkets

by the visual impact of the mark they are looking for (see in this regard judgment of

the signs is of particular importance in the overall assessment of a likelihood of

confusion. The aural and conceptual differences identified in section c) above, further

add to the dissimilar overall impression conveyed by the marks at issue. All of this

leads the Opposition Division to find that the relevant consumer will not confuse the

which the elements ‘COCONUT’ and ‘COCO’ are non-distinctive. Even though these

do not carry any weight as trade marks in relation to the relevant goods. This is

meaning of ‘COCONUT’ and ‘COCO’ will therefore rather focus on the remaining

elements of the signs which are all different. As a result, that part of the public will

perceive the signs as being even less similar and will easily distinguish them.

For the sake of completeness, it is noted that, for this part of the public, the

assessment remains the same as regards the elements ‘CLASSIC’ and ‘24’ which will

be perceived as having the meanings described above. The English word ‘CLASSIC’

is a basic English word, commonly used throughout the EU, and there are similar

equivalents in other European languages such as French (classique), German

(klassisch), Italian (classico) or Spanish (clásico). In relation to the relevant goods,

this part of the public will therefore also perceive the elements ‘CLASSIC’ and ‘24’ as

weak.

The opponent refers to a previous decision of the Office to support its arguments,

namely to the decision of the Board of Appeal of 02/11/2016 in the Case R 182/2016-

its previous decisions, as each case has to be dealt with separately and with regard

This practice has been fully supported by the General Court, which stated that,

Even though previous decisions of the Office are not binding, their reasoning and

outcome should still be duly considered when deciding upon a particular case.

similar and no conceptual aspects were taken into account. In that case, the

differences were not considered sufficient to exclude the existence of a likelihood of

confusion. This is, however, different in the case at hand where the contested mark is

a highly stylised figurative mark containing the word ‘COCO’ (not ‘Coconut’). As set

out above, the signs are visually dissimilar and only similar to a low degree from a

phonetic point of view. Although less relevant, there are also some conceptual

aforementioned Board of Appeal decision.

Considering all the above, in particular, the stronger impact of the visual dissimilarity

identical, there is no likelihood of confusion on the part of the public. Therefore, the

opposition must be rejected.

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

and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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. In the present case, the applicant did not appoint a

professional representative within the meaning of Article 120 EUTMR and therefore

did not incur representation costs.

The Opposition Division

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