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
a g a i n s t
Alimentos Maravilla, S.A., Km 58, 5. Crta. a Siquinala, Municipio de Escuintla,
Departamento de Escuintla, Guatemala (applicant), represented by Isern Patentes y
Marcas, S.L., Avenida Diagonal, 463 bis, 2° piso, 08036 Barcelona, Spain
On 20/10/2017, the Opposition Division takes the following
1. Opposition No B 2 766 957 is upheld for all the contested goods.
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.
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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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.
The opponent filed an opposition against all the goods of European Union trade mark
application No 15 544 216 for the figurative mark ‘ ’, namely against all
the goods in Class 32. The opposition is based on German trade mark registration
No 302 013 055 824 for the word mark ‘RAPTOR’. The opponent invoked Article 8(1)
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.
a) The goods
The goods on which the opposition is based are the following:
Class 32: Mineral water and carbonated water, flavored mineral water, mineral water
with additives, non-alcoholic beverages; isotonic beverages; lemonades; energy
drinks and sports drinks, as far as included in Class 32; non-alcoholic beverages for
stabilizing the energy balance, as far as included in Class 32; fruit beverages and
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;
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
drinks, isotonic drinks are identically contained in both lists of goods, including
The contested beer and the opponent’s non-alcoholic beverages are similar to a high
degree. These goods target the same public and have the same purpose, namely to
reduce the thirst of the consumers. They can have the same producers and
distribution channels and are in competition.
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
the public at large with an average degree of attention.
Decision on Opposition No B 2 766 957 page: 3 of 6
c) The signs
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).
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
of predatory dinosaurs, popularized by the film ‘Jurassic Park’ worldwide. In any
case, as it is not descriptive, allusive or otherwise weak for the relevant goods it is
The further word elements of the contested figurative sign ‘HAZ MÁS CON…’ have
no meaning for the relevant public and are, therefore, distinctive. The same applies
to the dinosaur device placed above the word elements.
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
and refer to a mark by its word components. The other word elements of the
contested sign, namely ‘HAZ MÁS CON…’ on the other hand, will have a very limited
impact on the consumers, due to their significantly smaller size within the mark. The
same applies to the slight stylisation of the letters, which solely appear thicker than
letters written in bold with a regular font.
Decision on Opposition No B 2 766 957 page: 4 of 6
Visually, the signs coincide in the verbal element ‘RAPTOR’, constituting the earlier
mark, and being the dominant verbal element of the contested sign. Although this
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.
Aurally, the pronunciation of the signs coincides in the syllables RAP-TOR, present
identically in both signs. The pronunciation differs in the sound of the letters ‘HAZ
MÁS CON…’ of the contested sign, which have no counterparts in the earlier mark.
However, taking into account that the word elements ‘HAZ MÁS CON…’ of the
contested sign are written with very small letters within the sign, and their
pronunciation would be unusual and difficult in German language, it is considered
that the impact of these is extremely reduced and will not be even pronounced in all
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
examination of likelihood of confusion will proceed.
d) 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
Decision on Opposition No B 2 766 957 page: 5 of 6
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
attention of the relevant public is average. The distinctiveness of the earlier mark is
The signs are visually similar to a lower than average degree, and aurally similar to
an average degree. Both marks contain the distinctive word element ‘RAPTOR’, and
even though this word element within the contested mark is slightly stylised, it is
without doubt that this element of both marks is the one that will be primarily
remembered by the relevant public.
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
belonging to two ranges of goods coming, nonetheless, from the same undertaking.
Considering all the above, there is a likelihood of confusion on the part of the relevant
public, even for that part of the public which would find the marks at issue
conceptually not similar.
Therefore, the opposition is well founded on the basis of the opponent’s German
trade mark registration No 302 013 055 824. It follows that the contested trade mark
must be rejected for all the contested goods.
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
representation, which are to be fixed on the basis of the maximum rate set therein.
The Opposition Division
Anna Bernadett SOROSI Sigrid DICKMANNS
According to Article 67 EUTMR, any party adversely affected by this decision has a
right to appeal against this decision. According to Article 68 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 for
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.