OPPOSITION No B 2 636 309

Frit Ravich, S.L., Poligon Industrial Massanet, 17412 Massanet de la Selva, Spain (opponent), represented by Oficina Ponti, Slp, Consell de Cent, 322, 08007 Barcelona, Spain (professional representative)

a g a i n s t

Leithart Nuss Holding GmbH, Adelheidstr. 4/5, 30171 Hannover, Germany (applicant), represented by Ksb Intax, Lüerstr. 10-12, 30175 Hannover, Germany (professional representative).

On 28/03/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 636 309 is partially upheld, namely for the following contested goods:

Class 29:         Extruded or pelletised or otherwise manufactured or processed potato products for food, other than potato flour, included in class 29; Potato crisps, potato sticks; Raisins, hazelnut, peanut, cashew nut and pistachio nut kernels, and almonds, dried, roasted, salted and/or spiced; Nut mixtures for snacks; Dried fruit, fruit snacks.

2.        European Union trade mark application No 14 635 387 is rejected for all the above goods. It may proceed for the remaining goods.

3.        Each party bears its own costs.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 14 635 387. The opposition is based on European Union trade mark registration No 10 875 656 and Spanish trade mark registration No 1 682 672. 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:

European Union trade mark registration No 10 875 656

Class 29:         Meat, fish, poultry and game; Meat extracts; Preserved, frozen, dried and cooked fruits and vegetables; Jellies, jams, compotes; Eggs; Milk and milk products; Edible oils and fats.

Spanish trade mark registration No 1 682 672

Class 29:         Nuts.

The contested goods are the following:

Class 29:         Extruded or pelletised or otherwise manufactured or processed potato products for food, other than potato flour, included in class 29; Potato crisps, potato sticks; Raisins, hazelnut, peanut, cashew nut and pistachio nut kernels, and almonds, dried, roasted, salted and/or spiced; Nut mixtures for snacks; Dried fruit, fruit snacks.

Class 30:         Extruded or pelletised or otherwise manufactured or processed savoury/spicy products based on cereals, included in class 30; Crackers, Cereal-based snack food, Rice-based snack food, Savoury biscuits, Salt licks, Pretzels.

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 extruded or pelletised or otherwise manufactured or processed potato products for food, other than potato flour, included in class 29 are processed and preserved potato products and therefore included in the broad category of the opponent’s preserved vegetables. These goods are identical.

The contested potato crisps, potato sticks are included in the broad category of the opponent’s cooked vegetables. These are identical.

The contested raisins, fruit snacks are included in the broad category of the opponent’s dried fruits. These are identical.

The contested hazelnut, peanut, cashew nut and pistachio nut kernels, and almonds, dried, roasted, salted and/or spiced; Nut mixtures for snacks are included in the broad category of the opponent’s nuts. These are identical.

The contested dried fruit is identically mentioned in the opponent’s list of goods.

Contested goods in Class 30

The contested Extruded or pelletised or otherwise manufactured or processed savoury/spicy products based on cereals, included in class 30; Crackers, Cereal-based snack food, Rice-based snack food, Savoury biscuits, Salt licks, Pretzels are various types of food products made of cereals or cereal products (cereal flour). They have different nature, purpose compared to all the goods of the opponent. They have different manufacturers. The goods are dissimilar.

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 average or lower than average since the goods are ordinary foodstuffs.

3. The signs

EUTM No 10 875 656 ES No 1 682 672  FRINUTS	Funnuts
Earlier trade marks	Contested sign

The relevant territory is the European Union (mark a) and Spain (mark b).

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). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The common element NUTS is not meaningful in certain territories, for example, in those countries where English is not understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the non-English speaking part of the public such as the Spanish public.

When signs consist of both verbal and figurative components, such as the earlier mark a), then in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. 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).

The earlier mark a) is a figurative mark. It contains a distinctive word element ‘Frinuts’, in a white slightly fancy typeface in title case. The word is placed on an eye- shaped background which consists of yellow, red and black. The mark has no element that could be considered more dominant (visually eye-catching) than other elements. The earlier mark b) is a word mark.

The contested sign is a distinctive word mark, with no meaning.

Visually, the signs coincide in the letter string F_ _ NUTS, and in the length of the word elements, seven letters each. The marks differ in two letters, in their second and third positions, RI/UN, and in the device and stylisation elements of the earlier mark a), which are not present in the contested mark.

Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the first letter F and last syllables NUTS, considering also that the letters N and NN are pronounced in an identical manner. The pronunciation differs in the sound of the letters RI/U, placed in the middle of the marks.  

Therefore, the signs are aurally similar to an average degree.

Conceptually, none of the elements of the signs have 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.

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.

The goods are partly identical and partly dissimilar. The level of attention is average and lower than average. The similarities and dissimilarities between the marks have been established.

The marks have been found visually and aurally similar to an average degree and the conceptual aspect does not influence the assessment of the similarity of the signs.

Therefore, when the differences in the letters referred to above are overlooked, since they are placed in the middle of the word elements, it is likely that the two signs, in view of the coinciding elements, are perceived as two variations of the same mark, and therefore coming from the same undertaking or economically-linked undertakings.

In addition, account should also be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks and must place his trust in the imperfect picture of them that he has kept in his mind (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323).

Based on the principle of imperfect recollection, and also having regard to the principle of interdependence, it is considered that the coincidences between the signs, together with the partial identity of the goods, are clearly enough to outweigh their dissimilarities and may induce at least part of the public to believe that the conflicting goods found identical come from the same or economically-liked undertakings.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Spanish-speaking  and therefore the opposition is partly well founded on the basis of the opponent’s earlier  trade mark registrations. 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.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical to those of the earlier trade mark.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this article and directed at these goods cannot be successful.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 85(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful only for part of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Francesca DINU

Erkki MÜNTER

Julie GOUTARD

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.