OPPOSITION No B 2 742 073

Naturian Ökoweine GmbH & Co. KG, Steinbreite 16, 34277 Fuldabrück, Germany (opponent), represented by Taylor Wessing,Thurn-und-Taxis-Platz 6, 60313 Frankfurt am Main, Germany (professional representative).

a g a i n s t

Caves D'Esclans, 4005 route de Callas, 83920 La Motte, France (applicant), represented by IP Sphere, 8, cours Maréchal Juin, 33000 Bordeaux, France (professional representative).

On 27/07/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 742 073 is upheld for all the contested goods.

2.        European Union trade mark application No 15 318 884 is rejected in its entirety.

3.        The applicant bears the costs, fixed at EUR 620.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 318 884. The opposition is based on German trade mark registration No 30 261 945.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

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

Class 33:     Alcoholic beverages (except beers).

The contested goods are the following:

Class 33:     Wine.

The contested wine is included in the broad category of the opponent’s alcoholic beverages (except beers). Therefore, they are identical.

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 are directed at the public at large.

The degree of attention is considered average.  

3. The signs

Le Coq	COQ
Earlier trade mark	Contested sign

The relevant territory is Germany.

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).

Both signs are word marks (thus it is irrelevant whether they are represented in lower or uppercase), containing the word ‘Coq’, while the earlier mark also contains the verbal element ‘Le’ placed first in the mark. The majority of the relevant public will not see any meaning in either of the signs’ word elements, therefore, ‘Le’, and the identical elements ‘Coq’ and ‘COQ’, are of normal distinctiveness. However, a small part of the public, for which French is well understood, will perceive ‘Le Coq’ as ‘cock’ followed by the definite article and ‘COQ’ as ‘cock’. Even if the meaning of ‘COQ’ is understood, it is a distinctive element, since it does not relate to the goods in question. However, ‘Le’ will be perceived as a weak element and an element with less trade mark significance when understood, since it is merely an article.  

Although there may be a conceptual link between the signs for a small part of the public (as stated above), the Opposition Division finds it appropriate to focus the comparison of signs on the majority of the public for which the signs have no meaning. As seen below in section e) of this decision, this is not an unfavourable scenario for examining the opposition for either of the parties, since the signs are more similar overall insofar their meanings are understood (due to ‘Le’ being a weak element).

Conceptually, since neither of the signs have a meaning for the public under analysis, a conceptual comparison is not possible and the conceptual aspect does not influence the assessment of the similarity of the signs.

Visually, the signs coincide in the word element ‘COQ’. They differ in the remaining element, ‘Le’, of the earlier mark, which is placed first in the earlier mark. Although the earlier mark begins with a differing element and it is the element that first catches the attention of the reader (since the public reads from left to right), the signs’ remaining elements (‘Coq’ and ‘COQ’) are identical, making them visually similar to an average degree overall.

Aurally, it is true that ‘Le’ is pronounced first in the earlier mark; nevertheless, the following element of the earlier mark will be pronounced identically to the sole element of contested sign. Therefore, the signs are similar to an average degree.  

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.

5. Global assessment, other arguments and conclusion

According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 29). The likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see Canon, § 16).

In addition, the global assessment of the risk of confusion entails certain interdependence between the factors taken into account and, in particular, between the similarity of the trademarks and the similarity of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (23/10/2002, T-6/01, Matratzen, EU:T:2002:261, § 25).

In the present case, the goods are identical and the signs are visually and aurally similar to an average degree and the conceptual aspect does not influence the comparison of signs (for the reasons explained above in section c) of this decision).  Moreover, the earlier mark is distinctive and the degree of attention of the relevant public is average. Account is also 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).

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s German trade mark registration No 30 261 945. It follows that the contested trade mark must be rejected for all the contested goods.

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

Alexandra APOSTOLAKIS

Christian RUUD

Pedro JURADO MONTEJANO

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.