OPPOSITION DIVISION

OPPOSITION No B 2 766 957

Gerolsteiner Brunnen GmbH & Co. KG, Vulkanring, 54568 Gerolstein, Germany

(opponent), represented by CMS Hasche Sigle Partnerschaft von Rechtsanwälten

und Steuerberatern mbB, Kranhaus 1, Im Zollhafen 18, 50678 Köln, Germany

(professional representative)

a g a i n s t

Alimentos Maravilla, S.A., Km 58, 5. Crta. a Siquinala, Municipio de Escuintla,

2. European Union trade mark application No 15 544 216 is rejected in its entirety.

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

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95

have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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

Decision on Opposition No B 2 766 957 page: 2 of 6

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.

fruit juices.

The contested goods are the following:

Class 32: Beer; Mineral waters and other non-alcoholic drinks; Fruit beverages and

fruit juices; Syrups and other preparations for making beverages; Energy drinks;

Isotonic drinks.

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.

Mineral waters and other non-alcoholic drinks, fruit beverages and fruit juices, energy

The contested syrups and other preparations for making beverages and the

opponent’s non-alcoholic beverages are similar to a high degree. These goods target

the same public and have the same purpose. Furthermore, they can have the same

distribution channels and are often in competition.

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 found to be identical or highly similar are directed at

Decision on Opposition No B 2 766 957 page: 3 of 6

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 word element ‘RAPTOR’ present in both signs does not have any official

meaning in German, thus for a part of the public, it will not convey any meaning.

However, it cannot be excluded that by a part of the relevant public, it will be

understood as a reference to predators, due to its meaning in Latin (information

extracted from Pons online German Dictionary on 18/10/2017 at

https://de.pons.com/übersetzung?q=raptor&l=dela&in=ac_la&lf=la), and / or to a type

When signs consist of both verbal and figurative components, 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 dominant elements of the contested sign are the word element ‘RAPTOR’ and

the dinosaur device, due to their size and dimension within the sign. However,

regardless whether its meaning is recognised or not, the relevant public will most

likely focus its attention on the word element ‘RAPTOR’, as it is easier to remember

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Visually, the signs coincide in the verbal element ‘RAPTOR’, constituting the earlier

verbal element is written in two rows, where the syllables RAP/TOR are positioned

under each other within the contested sign, due to the fact that the consumers tend

to read from the top to the bottom, these syllables will be perceived as one word.

The signs differ in the further word elements ‘HAZ MÁS CON…’ and the figurative

elements of the contested sign.

Therefore, the signs are visually similar to a lower than average degree.

identically in both signs. The pronunciation differs in the sound of the letters ‘HAZ

cases by the relevant public. This finding is further supported by the fact that these

words do not have any meaning for the relevant public.

Therefore, the signs are similar to an average degree from an aural point of view.

Conceptually, a part of the public in the relevant territory will not associate the word

element ‘RAPTOR’ present in both signs with any meaning. Further, while the words

‘HAZ MÁS CON…’ of the contested sign will most likely not be associated with

anything, the dinosaur device will convey the concept of an approaching dinosaur.

For this part of the public, the signs are not conceptually similar.

However, for that part of the public which identifies the word ‘RAPTOR’ as a

reference to predators or as a type of dinosaur, the marks will be conceptually similar.

In the latter case, the dinosaur device in the contested sign will only support this

As the signs have been found similar in at least one aspect of the comparison, the

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.

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e) Global assessment, other arguments and conclusion

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).

Some of the relevant goods are identical, and some of them are highly similar.

As follows from the nature of the goods and the target consumers, the degree of

normal.

The signs are visually similar to a lower than average degree, and aurally similar to

For a part of the public, the signs will be conceptually not similar, while for the other

part of the public, the marks are conceptually similar.

From the wording in Article 8(1)(b) EUTMR, ‘the likelihood of confusion includes the

likelihood of association with the earlier trade mark’, it follows that the concept of a

likelihood of association is not an alternative to that of a likelihood of confusion, but

serves to define its scope. Indeed, due to the verbal element that the signs contain

almost identically, ‘RAPTOR’, which plays a distinctive and independent role in both

marks, it is highly conceivable that the relevant consumer will perceive the contested

mark as a sub-brand, a variation of the earlier mark, configured in a different way

according to the type of goods that it designates (23/10/2002, T 104/01, Fifties,

EU:T:2002:262, § 49). Therefore, it is conceivable that the targeted public may regard

the goods designated by the trade mark applied for and by the earlier mark as

COSTS

According to Article 109(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 Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former

Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), the

Decision on Opposition No B 2 766 957 page: 6 of 6

costs to be paid to the opponent are the opposition fee and the costs of

The Opposition Division

appeal must be filed within four months of the same date. The notice of appeal will be

deemed to have been 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 Article 109(8) EUTMR

(former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be

filed within one month of the date of notification of this fixation of costs and will be

deemed to have been filed only when the review fee of EUR 100 (Annex I A(33)

EUTMR) has been paid.