OPPOSITION No B 2 441 544

Empresa de Licores de Cundinamarca, Carrera 36 No. 10-95, Bogotá, Colombia, (opponent), represented by Silex IP, Calle Velázquez 109, 2º D, 28006 Madrid, Spain (professional representative)

a g a i n s t

Twee Jonge Gezellen Estates Proprietary Limited, 5 Herold Street, Stellenbosch, Western Cape, South Africa (applicant), represented by Urquhart-Dykes & Lord LLP, Arena Point Merrion Way, Leeds, Leeds LS2 8PA, The United Kingdom, (professional representative).

On 22/06/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 441 544 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 13 128 442. The opposition is based on, inter alia, European Union trade mark No 8 208 571. 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.

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 European Union trade mark No 8 208 571.

1. The goods

The goods on which the opposition is based are the following:

Class 33: Colombian aguardiente (anise-flavoured liqueur).

The contested goods are the following:

Class 33: Wines.

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 wines are similar to the earlier Colombian aguardiente (anise-flavoured liqueur) which is a Colombian alcoholic beverage. Although their production processes are different, these goods all belong to the same category of alcoholic drinks intended for the general public and have the same nature. They can be served in restaurants and in bars and are on sale in supermarkets and grocery stores. These drinks can be found in the same section of supermarkets, although they can also be distinguished to some extent by subcategory. Furthermore they are in competition.

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 similar are directed at the public at large.

The degree of attention is average.

2. The signs

AGUARDIENTE NECTAR	NIGHT NECTAR
Earlier trade mark	Contested sign

The relevant territory is the European Union.

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 signs are word marks and have therefore no elements that could be considered clearly more dominant than other elements.

The common element, ‘NECTAR’, means: Any delicious wine or other drink. (Oxford English Dictionary http://www.oed.com). This word exists and has the same meanings in other languages i.e. French, Spanish, Dutch and Portuguese (with an accent ‘néctar’). This word has very similar equivalents also in the remaining territories, for example ‘nektar’ (in Danish, German, Czech, Polish, Swedish, Croatian, Estonian), ‘nettare’ (in Italian), nektár (in Slovak, Hungarian), ‘nektārs’ (in Latvian), ‘nektaras’ (in Lithuanian). Therefore, it refers to the same meanings in the majority of the relevant territories i.e. German, Czech, Polish, Swedish, etc… Bearing in mind that the conflicting goods are wines and Colombian aguardiente (anise-flavoured liqueur), this term is weak as the public will understand it as referring to their kind and quality.

The word ‘AGUARDIENTE’ of the earlier mark means in Spanish and Portuguese  any of several types of strong distilled alcoholic beverage, esp. a brandy made in Spain and Portugal or a liquor made in Latin America from sugar cane (Oxford English Dictionary http://www.oed.com). For the rest of the relevant public, this word does not have any meaning. Bearing in mind that the opponent’s goods is Colombian aguardiente (anise-flavoured liqueur), this term is not distinctive for part of the relevant public as it will understand it as referring to a kind of the goods. For the other part of the public, the term is distinctive.

Finally, the word ‘NIGHT’ is a basic English term likely to be understood by the majority of the relevant public as the part of each day when the sun has set an it is dark outside, especially the time when the people are sleeping. For the other part of the relevant public, the term has no meaning. Contrary to the opponent’s argument, this term is distinctive for all the relevant public taking into account that its meaning has no relation with the contested goods. It does not in any way describe the qualities of the products.

Conceptually, reference is made to the meanings of the signs and their particular elements given above. For the part of the relevant public that will only grasp the common element ‘NECTAR’, the signs coincide conceptually only in a non-distinctive element. As this element cannot indicate the commercial origin of the signs, no conceptual similarity can be established based on this element. Therefore, the conceptual comparison remains neutral for this part of the relevant public. The same applies to the relevant public that will grasp on top of the coinciding element ‘NECTAR’ also the non-distinctive word ‘AGUARDIENTE’, this element has no impact on the conceptual comparison as it merely describes the goods. Therefore, the conceptual comparison remains also neutral for this part of the relevant public.

For the remaining part of the relevant public, that will apart from the common non-distinctive element ‘NECTAR’ will also grasp the meaning of ‘NIGHT’ which is fully distinctive for the relevant goods, the marks are conceptually not similar.

Visually and aurally, the signs coincide in ‘NECTAR’ which is placed in second position in both cases. They differ in their first elements ‘AGUARDIENTE’ and ‘NIGHT’ which are different in length (number of letters). Furthermore,  the fact that they might share some letters in different positions is irrelevant. Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Therefore, considering the limited impact of the non-distinctive element ‘NECTAR’ and the different beginnings of the marks, the signs are visually and aurally similar to a low degree.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

3. 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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark as a whole must be seen as low for all the goods in question, namely Colombian aguardiente (anise-flavoured liqueur) in Class 33, for the Spanish and Portuguese part of the public in the relevant territory. The mark has a normal degree of distinctiveness for the remaining part of the relevant territory, where the word ‘AGUARDIENTE’ has no meaning in relation with the goods in question.

4. Global assessment, other arguments and conclusion

When determining the existence of likelihood of confusion, trade marks have to be compared by making an overall assessment of the visual, aural and conceptual similarities between the marks. The comparison 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)

In the present case, the conflicting goods are similar and the degree of attention paid by the relevant public, which consists of the public at large, is average.

The marks are visually and aurally similar to a low degree. The conceptual comparison remains neutral for part of the public and the signs are not similar for another part. The commonalities result only from the word ‘NECTAR’, which is weak in the context of the goods in question, as explained in detail above in section c) of this decision. According to settled case-law, if trade marks have identical parts that are weak or devoid of distinctive character, the differences between the signs are to be given more importance in the overall assessment of the signs (18/03/2002, R 0814/2001-3, ALL-DAY AQUA / Krüger All Days, § 50; 14/05/2001, R 0257/2000-4, e plus / PLUS, § 22).

When considering the principle of interdependence, as established in the judgment of 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17, to counterbalance a low degree of similarity between the signs, the goods would need to be highly similar or identical, which is not the present case. Further, this principle also takes into account other relevant factors such as the relevant consumers and their degree of attention. In this sense, the fact that the marks coincide in one word which weak and differ in all other elements it enables the marks to be clearly distinguished, even if the attention of the relevant public is considered to be average.

The Opposition Division considers that the differences between the signs are sufficient to exclude the possibility of consumers believing that the goods in question come from the same undertaking or economically linked undertakings.

Considering all the above, there is no likelihood of confusion on the part of the relevant public. Therefore, the opposition must be rejected.

The opponent has also based its opposition on the following earlier trade marks:

• European Union trade mark No 8 208 597  ‘AGUARDIENTE NECTAR CLUB’ for Class 33.
• European Union trade mark No 8 208 589  ‘AGUARDIENTE NECTAR AZUL’ for Class 33.
• European Union trade mark No 8 208 613     for Class 33.

The other earlier rights invoked by the opponent are less similar to the contested mark than the earlier mark compared above. This is because they contain additional words and figurative elements which are not present in the contested trade mark. Moreover, they cover the same scope of the goods. Therefore, the outcome cannot be different with respect to goods for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods.

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

Martin MITURA

Inés GARCIA LLEDO

Saida CRABBE

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.