OPPOSITION DIVISION

OPPOSITION No B 2 782 921

Soria Natural, S.A., Polígono La Sacea, 1, 42162 Garray (Soria), Spain (opponent),

represented by Asociados Pymark S.L., Londres, 67, 2º, 3º, 08036 Barcelona,

Spain (professional representative)

a g a i n s t

Duman Fatih, Wilhelminenstrasse 69, 1160 Wien, Austria (applicant), represented by

Beer & Partner Patentanwälte KG, Lindengasse 8, 1070 Wien, Austria

2. European Union trade mark application No 15 582 811 is rejected for all the

above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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

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

Decision on Opposition No B 2 782 921 page: 2 of 7

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.

(including nuts and pulses); Fish, seafood and molluscs; Antipasto

salads; Pre-packaged dinners consisting primarily of seafood;

Casseroles [food]; Shepherd’s pie; Broth [soup]; Ox bone based broth

(seolleongtang); Caesar salad; Chili con carne; Chicharron; Artificial

milk based desserts; Desserts made from milk products; Dairy-based

dips; Stewed apples; Eggplant paste; Banana chips; Organic nut and

seed-based snack bars; Bisques; Bouillon; Stock cubes; Caponata;

Chile con queso; Chop suey; Dahls; Dairy puddings; Chowder; Dips;

Dolmas; Condensed tomatoes; Roast beef flavoured extract; Stews;

Faggots [food]; Falafel; Cooked dish consisting primarily of chicken

consisting primarily of stired-fried beef and fermented soy sauce

(Sogalbi); Prepared meals made from meat [meat predominating];

Prepared meals made from poultry [poultry predominating]; Prepared

meals containing [principally] eggs; Prepared dishes consisting

principally of meat; Prepared meals containing [principally] chicken;

Prepared meals containing [principally] bacon; Prepared meals

consisting substantially of seafood; Prepared meals consisting

principally of game; Instant soup; Fish in olive oil; Fish with chips;

Steamed cakes of smashed fish and yam (hampen); Vegetable-based

entrees; Bottled vegetables; Chilled meals made from fish; Fritters;

Fish jellies; Fish cakes; Fish crackers; Fish stock; Vegetable-based

snack foods; Vegetable stock; Vegetable chips; Salted nuts; Gumbo;

Scotch eggs; Corned beef hash; Prepared dishes consisting primarily

of fishcakes, vegetables, boiled eggs, and broth (oden); Frozen

prepared meals consisting principally of vegetables; Chicken

croquettes; Chicken stock; Chicken balls; Legume salads; Soy-based

snack foods; Meat boiled down in soy sauce (tsukudani meat);

Decision on Opposition No B 2 782 921 page: 3 of 7

Bombay mix; Instant stew; Instant miso soup; Custard style yoghurts;

Yoghurt desserts; Vegetable soup preparations; Veal stock; Potato

chips; Potato flakes; Potato-based gnocchi; Nuts, prepared; Spiced

nuts; Nut-based food bars; Nut-based snack foods; Sugar-coated

fruits on a stick; Mixes for making broths; Mixes for making soup;

Powdered milk for food purposes; Matzo ball soup; Bologna; Beef

Breaded and fried jalapeno peppers; Omelets; Olives stuffed with

pesto in sunflower oil; Olives stuffed with almonds; Olives stuffed with

red peppers and almonds; Olives stuffed with red peppers; Olives

stuffed with feta cheese in sunflower oil; Pre-cooked miso soup;

Ready cooked meals consisting wholly or substantially wholly of

poultry; Ready cooked meals consisting wholly or substantially wholly

of game; Ready cooked meals consisting wholly or substantially

wholly of meat; Edible birds’ nests; Soya [prepared]; Stock [prepared];

Prepared snails [escargot]; Hazelnuts, prepared; Vegetarian

sausages; Clam juice; Vegetable burgers; Tofu burger patties; Tofu;

batter; White pudding; Prepared meals consisting primarily of meat

substitutes; Chilled foods consisting predominately of fish; Cooked

meals consisting principally of fish; Pre-packaged dinners consisting

primarily of game; Pre-cooked curry stew; Pre-cooked soup.

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 dairy products and diary substitutes include butter. Consequently,

these goods may have the same purpose and relevant public and be in competition

with the opponent’s edible oils in capsules. Therefore, they are similar.

The contested meat products being in the form of burgers; meats; processed fruits,

fungi and vegetables (including nuts and pulses); fish, seafood and molluscs;

Decision on Opposition No B 2 782 921 page: 4 of 7

antipasto salads; pre-packaged dinners consisting primarily of seafood; casseroles

[food]; shepherd’s pie; broth [soup]; ox bone based broth (seolleongtang); caesar

salad; chili con carne; chicharron; artificial milk based desserts; desserts made from

milk products; dairy-based dips; stewed apples; eggplant paste; banana chips;

organic nut and seed-based snack bars; bisques; bouillon; stock cubes; caponata;

chile con queso; chop suey; dahls; dairy puddings; chowder; dips; dolmas;

containing [principally] chicken; prepared meals containing [principally] bacon;

prepared meals consisting substantially of seafood; prepared meals consisting

principally of game; instant soup; fish in olive oil; fish with chips; steamed cakes of

smashed fish and yam (hampen); vegetable-based entrees; bottled vegetables;

chilled meals made from fish; fritters; chilled dairy desserts; frozen cooked fish;

cooked meat dishes; filled potato skins; chile rellenos; frozen pre-packaged entrees

consisting primarily of seafood; frozen french fries; chicken salad; fruit-based snack

food; fruit desserts; prepared meat dishes; meatballs; bouillon concentrates; beef

bouillon; fish sausages; steamed or toasted cakes of fish paste (kamaboko); fish

croquettes; fish jellies; fish cakes; fish crackers; fish stock; vegetable-based snack

preparations; veal stock; potato chips; potato flakes; potato-based gnocchi; nuts,

prepared; spiced nuts; nut-based food bars; nut-based snack foods; sugar-coated

fruits on a stick; mixes for making broths; mixes for making soup; powdered milk for

food purposes; matzo ball soup; bologna; beef jerky; croquettes; soups; canned pork

and beans; coconut shrimp; stuffed cabbage rolls; mincemeat made from fruits;

consommes; radish cubed kimchi (kkakdugi); potato snacks; potato salad; mashed

potato; potato fritters; potato pancakes; potato dumplings; soy burger patties; soy

chips; snack foods based on nuts; potato-based snack foods; snack foods based on

legumes; snack foods based on vegetables; tofu-based snacks; meat-based snack

foods; roasted nuts; roast chestnuts; rosti [fried grated potato cakes]; hash brown

substantially wholly of game; ready cooked meals consisting wholly or substantially

wholly of meat; edible birds’ nests; soya [prepared]; stock [prepared]; prepared snails

[escargot]; hazelnuts, prepared; vegetarian sausages; clam juice; vegetable burgers;

tofu burger patties; tofu; frozen appetizers consisting primarily of seafood; frozen

appetizers consisting primarily of chicken; soup cubes; soup powders; preparations

for making soup; soup pastes; soup concentrates; extracts for soups; canned soups;

potato sticks; puffed pork rind; onion rings; preparations for making bouillon;

Decision on Opposition No B 2 782 921 page: 5 of 7

prepared salads; tzatziki; yuca chips; spicy beef broth (yukgaejang); sausages in

batter; white pudding; prepared meals consisting primarily of meat substitutes; chilled

foods consisting predominately of fish; cooked meals consisting principally of fish;

pre-packaged dinners consisting primarily of game; pre-cooked curry stew; pre-

cooked soup are all food products. However, they are dissimilar to the opponent’s

goods, as they have different natures and origins. They are not complementary, even

In the present case, the goods found to be identical or similar (to various degrees)

are directed at the public at large. The degree of attention is average.

c) The signs

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 earlier mark is a word mark, ‘BONALIN’. It has no meaning for the relevant

public and is, therefore, distinctive.

The contested sign is a figurative mark composed of the verbal element ‘NALIN’ in

stylised orange title case letters. The verbal element has no meaning for the relevant

letters, ‘BO’, of the earlier mark and in the stylisation of the contested mark.

Decision on Opposition No B 2 782 921 page: 6 of 7

Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛NALIN’,

present identically in both signs. The pronunciation differs in the sound of the first

letters, ‛BO’, of the earlier mark, which have no counterparts in the contested sign.

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

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).

Likelihood of confusion covers situations where the consumer directly confuses the

trade marks themselves, or where the consumer makes a connection between the

The signs are visually similar to an average degree and aurally similar to a high

degree, to the extent that they have the verbal element ‘NALIN’ in common. The

verbal element of the contested mark is fully included in the earlier mark. The

difference is limited to only two letters at the beginning of the earlier mark, ‘BO’, and

the stylisation of the letters in the contested sign.

Decision on Opposition No B 2 782 921 page: 7 of 7

Taking into account all the relevant circumstances of the case, the differences

between the marks are not sufficient to counterbalance the similarity between them.

The relevant public may believe that the relevant goods come from the same

undertaking or at least economically-linked undertakings.

Considering all the above, the Opposition Division finds that there is a likelihood of

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must

bear the fees and costs incurred by the other party. According to

Article 109(3) EUTMR, where each party succeeds on some heads and fails on

others, or if reasons of equity so dictate, the Opposition Division will decide a

different apportionment of costs.

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