OPPOSITION No B 2 705 336

Kopfsalat Trade, S.L., Mercabarna ZAC, Longitudunal 9, nº 91, 08040 Barcelona, Spain (opponent), represented by Aguilar i Revenga, Consell de Cent, 415 5° 1ª, 08009 Barcelona, Spain (professional representative)

a g a i n s t

Investment Hub Gayrimenkul Yatırım Danışmanlık İnşaat Sanayi ve Ticaret Limited Şirketi, Küçükçamlıca Cumhuriyet Mah. Libadiye Cad. No:37 İç Kapı No:3 Üsküdar, Istanbul, Turkey (applicant), represented by Franco Martegani S.R.L., Via Carlo Alberto, 41, 20052 Monza (MI), Italy (professional representative).

On 10/05/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 705 336 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 of European Union trade mark application No 15 091 192, namely against all the goods in Class 31. The opposition is based on Spanish trade mark registration No 1 991 069. 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 31:        Fresh fruits and vegetables; grains and agricultural, horticultural and forestry products not included in other classes.

The contested goods are the following:

Class 31:        Agricultural, horticultural and forestry products; raw and unprocessed grains and seeds; fresh fruits and vegetables; natural plants and flowers; live animals; foodstuffs for animals; malt.

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 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 relevant goods deemed to be identical are directed at the public at large and/or at business customers with specific professional knowledge or expertise. The degree of attention is considered to be average.

3. The signs

KOPGAVÀ	GAVA
Earlier trade mark	Contested sign

The relevant territory is Spain.

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 signs have no particular meaning in the relevant territory and, therefore, no component more or less distinctive can be identified. Being both word marks, neither of the signs has a dominant element.

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 and aurally, the signs coincide in the four letters ‘GAVA’ and their sounds (although the accent in the earlier mark may slightly modify the pronunciation). These letters are placed at the end of the earlier mark and form the contested sign in its entirety. The signs differ in the first three letters ‘KOP’ (and their sounds) and in the accent placed above the last letter ‘A’ in the earlier mark. It must be pointed out that the additional first letter ‘K’ of the earlier mark is particularly striking for the relevant public, not only because it is placed at the very beginning, but also because it is not commonly used in Spanish. Moreover, at least, for a significant part of the public, the accent will put the stress on the last syllable ‘-VÀ’ of the earlier mark whereas the stress in the contested sign is on the first syllable. The signs also differ in their length (seven letters and three syllables in the earlier mark against only four letters and two syllables in the contested sign).

Therefore, the signs are visually and aurally similar to a low 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.

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

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 8 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C251/95, Sabèl, EU:C:1997:528, § 22).

The signs are similar insofar as they have four letters in common. However, as explained in detail in section c), these coincidences only lead to a finding of a low degree of visual and aural similarity, especially since the earlier mark contains three additional letters in its initial part, namely the part that first catches the attention of the consumer and all the more so as the initial letter 'K' is an unusual letter in Spanish. Moreover, the signs do not have a conceptual link that would lead the public to associate them with each other.

Although the contested mark GAVA is entirely included in the other mark, it will not be recognised and singled out because the public usually perceives trade marks as a whole. Indeed, ‘KOPGAVÀ’ will be perceived in its entirety as an indivisible one-word sign.

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

Catherine MEDINA

Benoit VLEMINCQ

Martina GALLE

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.