OPPOSITION No B 2 738 337

Lusiteca – Produtos Alimentares, S. A., Rua das Vagens Nº 56, 2725-466 Mem Martins, Portugal (opponent), represented by J.E. Dias Costa, LDA., Rua do Salitre, 195, 1269-063 Lisboa, Portugal (professional representative)

a g a i n s t

Werbegemeinschaft Lech-Wege, Elbigenalp, Untergiblen 23, 6652 Elbigenalp, Austria (applicant), represented by Franz-Martin Orou, Kapitelgasse 7/5, 1170 Vienna, Austria (professional representative).

On 07/09/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 738 337 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 15 245 558 for the figurative trade mark , namely against all the goods in Class 30. The opposition is based on Portuguese trade mark registration No 495 171 for the figurative trade mark . 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 30:        Confectionery articles, drops, candy, caramels and chewing gum, gelly gums and lollipops.

After the limitation of the list of goods in Class 30, the contested goods are the following:

Class 30:        Bread; pastry and confectionery; edible ices; honey; golden syrup; yeast; baking powder; salt; mustard; vinegar; sauces (condiments); seasonings; spices; ice; flour; cereal preparations.

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.

The contested confectionery includes, as a broader category the opponent’s confectionery articles. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested pastry overlaps with the opponent’s confectionery articles. Therefore, they are identical.

The contested cereal preparations (the latter including sweet cereal bars) are similar to the opponent’s confectionery articles as they have the same purpose. They can coincide in producer, end user and distribution channels. Furthermore, they are in competition.

The contested bread is similar to a low degree to the opponent’s confectionery articles as they can coincide in producer, end user and distribution channels.

The contested edible ices are similar to a low degree to the opponent’s confectionery articles. Although they have a different nature, these goods can coincide in end user and distribution channels. Furthermore, these goods are in competition.

However, the remaining contested goods, namely honey; golden syrup; yeast; baking powder; salt; mustard; vinegar; sauces (condiments); seasonings; spices; ice; flour are dissimilar to the opponent’s as they have a different nature, purpose and method of use from the opponent’s goods

The mere fact that some of these contested goods e.g. honey; yeast; baking powder; flour, spices, salt are products that might be used in the production of some of the opponent’s goods or used in order to enhance their flavour, is not sufficient in itself to establish similarity (see by analogy 26/11/2011, T-72/10, Naty’s, EU:T:2011:635, § 35-36). Neither of the categories of foods in question can serve as a substitute for the other and they are neither in competition. In addition, the fact that diverse foodstuffs can be found in the same sales outlets as in supermarkets and grocery stores is not sufficient to render them similar, since in those sales outlets, consumers can find a whole range of different products without automatically attributing a common origin to them.

The contested ice is to be understood as „cooling ice‟ and therefore, the purpose, the relevant public, the manufacturers and the distribution channels are different from the opponent’s goods as is their nature. Furthermore, they are neither in competition nor complementary.

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 or similar to different degrees are directed at the public at large. Contrary to the applicant’s opinion, the degree of attention is average as these goods are in general purchased on a recurrent, frequent basis.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is Portugal.

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).

Both marks are figurative marks. The earlier mark is consisting of a figurative element, placed above the word ‘lusiteca’ written in slightly stylized lower-case letters. The figurative element will be very likely perceived by the relevant public as a stylized capital letter ‘L’. Both elements are in black colour on a white background.

The contested sign is composed of two white slightly curved lines, placed on a sea green-silverish shaded square background, creating an optical illusion where one can recognize a stylized a capital letter ‘L’.

Neither the elements of the earlier mark nor of the contested sign have a meaning in relation to the goods at issue. Therefore, they are normally distinctive and the conflicting signs have no element that could be considered clearly more distinctive than other elements.

The letter ‘L’ in the earlier mark is of a considerable size. However, it does not overshadow the verbal element ‘lusiteca’ which will be noticeable in that sign without any doubt.

Therefore, none of the marks under comparison have elements which could be considered clearly more dominant (visually eye-catching) than other elements.

Visually, the signs coincide in that they both comprise stylised representations of a capital letter ‘L’. However, they differ in the additional verbal element ‘lusiteca’ of the earlier mark that has no counterpart in the contested sign, the colours and their overall graphical representation. Moreover, the stylisation of the common element ‘L’ is considerably different. The letter ‘L’ in the earlier mark is in black and written with thick one line, having rather roundish shape and edges, whereas the letter ‘L’ in the contested sign is in white and consists of two slightly curved slender lines.

Therefore, the signs are visually similar to a very low degree.

Aurally, the pronunciation of the signs coincides in the sound of the common letter ‘L’ and differs in the word element ‘lusiteca’, of the earlier mark that has no counterpart in the contested sign. Considering the composition of the earlier mark, the Opposition Division is of the opinion that a part of the public will not pronounce the letter ‘L’ there but rather just the verbal element ‘lusiteca’. In any case, whether the letter ‘L’ of the earlier mark is pronounced by the relevant public or not, the pronunciation of the marks differs substantially in their length and rhythm.

Therefore, the signs are aurally dissimilar for a part of the relevant public which will not pronounce the letter ‘L’ in the earlier mark, as for the remaining part, the signs are considered to be aurally similar to a very low degree.

Conceptually, the public in the relevant territory will perceive the concept of a letter ‘L’ in both signs. However, the letter ‘L’ does not evoke any specific concept in relation to the goods in question. The letter ‘L’ in the earlier mark may also be perceived as the initial letter of the verbal element ‘lusiteca’.

The verbal element ‘lusiteca’ in the contested sign lacks any clear meaning in the relevant territory. Therefore, it will be perceived as a fanciful word.

To the extent, that the signs will be associated with the same concept of a single letter ‘L’, they are considered conceptually similar to an average degree.

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 likelihood of confusion must be appreciated globally, taking into account all the factors relevant to the circumstances of the case; this appreciation depends on numerous elements and, in particular, on the degree of recognition of the mark on the market, the association that the public might make between the two marks and the degree of similarity between the signs and the goods and services (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).

The goods at issue have been found identical, similar to various degrees and dissimilar. The degree of attention is deemed to be average.

The similarities between the signs are limited to the fact that each contains the letter ‘L’. Considering this, the way the letter appears in each sign is decisive. As explained above, the letter ‘L’ is depicted in a very different manner in the two signs since they considerably differ in their stylization, colour and shape. Moreover, the two signs also differ in the inclusion of the additional verbal element ‘lusiteca’ in the earlier mark and in the sea green-silverish shaded background of the contested sign, which has no counterpart in the earlier mark.

The signs coincide aurally in the letter ‘L’, only for a part of the relevant public and even for this part of the public, the pronunciation of the two marks as a whole differs clearly.

Although the signs coincide conceptually in the element ‘L’, in terms of the overall visual impressions given by the marks, the differences prevail.

Considering all the above, the differences in the depiction of the letters ‘L’ in the marks and the additional verbal and figurative elements of the marks are clearly perceptible and sufficient to exclude any likelihood of confusion between the marks.

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

Beatrix STELTER

Renata COTTRELL

Denitza STOYANOVA-VALCHANOVA

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.