OPPOSITION No B 2 698 382
Azimut Consulting Tanácsadó Kft., Kossuth tér 16 I/7, 3000 Hatvan, Hungary (opponent), represented by Interinno Szabadalmi Iroda, Margit krt. 73, 1024 Budapest, Hungary (professional representative)
a g a i n s t
GG Handel i Skara AB, Box 44, 532 21 Skara, Sweden (applicant), represented by Wistrand Advokatbyrå, Lilla Bommen 1, 411 04 Göteborg, Sweden (professional representative).
On 22/05/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 698 382 is upheld for all the contested goods.
2. European Union trade mark application No 15 095 681 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 15 095 681. The opposition is based on, inter alia, Hungarian national mark registration No 178 197. The opponent invoked Article 8(1)(b) and Article 8(4) 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.
The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s Hungarian national mark registration No 178 197.
- The goods
The goods on which the opposition is based are the following:
Class 29: Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, stewed fruit; eggs; milk and dairy products; edible oils and fats.
Class 30: Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, spicy sauces, spices; edible ice.
The contested goods are the following:
Class 29: Vegetables, tinned [canned (am.)]; tomato paste; tomato concentrates [puree]; tomato preserves; condensed tomatoes; processed tomatoes; tomato juice for cooking; vegetables, dried; processed vegetables; vegetables, preserved; vegetables, cooked; preserved vegetables.
Class 30: Catsup; tomato sauce; vegetable purees [sauces]; sauces; canned sauces.
Class 31: Fresh tomatoes; vegetables, fresh.
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
Tomato concentrates [puree]; vegetables, dried; vegetables, preserved; vegetables, cooked; preserved vegetables are identically contained in both lists of goods, despite minor differences in wordings (where applicable).
The contested vegetables, tinned [canned (am.)]; tomato paste; tomato preserves; condensed tomatoes; processed tomatoes; tomato juice for cooking; processed vegetables are included in the broader category of, or overlap with, the opponent’s preserved vegetables. Therefore, they are identical.
Contested goods in Class 30
The contested catsup; tomato sauce; vegetable purees [sauces]; sauces; canned sauces are all sauces and condiments which are similar to a high degree to the opponent´s preserved vegetables in Class 29, because they share the same purpose, are in competition with each other and coincide in their pertinent distribution channels, producers and relevant public.
Contested goods in Class 31
The contested fresh tomatoes; vegetables, fresh are similar to a low degree to the opponent´s cooked fruits and vegetables in Class 29. Although the former are unprocessed and the latter processed, they can coincide in producer, relevant public and distribution channels.
- The signs
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GOLDFASAN |
GOLDFASAN |
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Earlier trade mark |
Contested sign |
The signs are identical.
- Global assessment, other arguments and conclusion
The signs are identical and a part of the contested goods are identical to those covered by the earlier mark, namely:
Class 29: Vegetables, tinned [canned (am.)]; tomato paste; tomato concentrates [puree]; tomato preserves; condensed tomatoes; processed tomatoes; tomato juice for cooking; vegetables, dried; processed vegetables; vegetables, preserved; vegetables, cooked; preserved vegetables.
Therefore, the opposition must be upheld under Article 8(1)(a) EUTMR for these goods.
In addition, the following contested goods are similar to varying degrees to those covered by the earlier trade mark:
Class 30: Catsup; tomato sauce; vegetable purees [sauces]; sauces; canned sauces.
Class 31: Fresh tomatoes; vegetables, fresh.
Given the identity of the signs, there is a likelihood of confusion within the meaning of Article 8(1)(b) EUTMR and the opposition must also be upheld for the goods found to be similar to a high degree.
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).
Taking into account the interdependence principle, the Opposition Division finds that the fact that the signs are identical is clearly sufficient to offset the low degree of similarity found between some of the goods, and, therefore, likelihood of confusion exists in relation to those, too.
Therefore, the opposition is well founded on the basis of the opponent’s Hungarian trade mark registration No 178 197, pursuant to Article 8(1)(b) EUTMR.
It follows that the contested trade mark must be rejected for all the contested goods.
As opponent’s earlier Hungarian trade mark registration No 178 197, leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).
Since the opposition is fully successful on the basis of the ground of Article 8(1) EUTMR, there is no need to further examine the other grounds of the opposition, namely Article 8(4) EUTMR.
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
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Solveiga BIEZA
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Keeva DOHERTY |
Judith NEMETH
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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.