OPPOSITION DIVISION
OPPOSITION No B 2 519 919
Agrícola Costa Levante, S.L., Calle Mayor 106, 03314 San Bartolomé-Orihuela
(Alicante), Spain (opponent), represented by Gestimarcas, Calle Dr. Sirvent 4, Entlo.
Dcha., 03160 Almoradí (Alicante), Spain (professional representative)
a g a i n s t
Okechamp S.A., ul. Dabrowskiego 259, 60-406 Poznań, Poland (applicant),
represented by Kancelaria Patentowa Patentbox Romuald Suszczewicz, ul.
Piekary 6/17, 61-823 Poznań, Poland (professional representative).
On 12/10/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 519 919 is upheld for all the contested goods.
2. European Union trade mark application No 13 604 129 is rejected in its entirety.
3. The applicant bears the costs, fixed at EUR 650.
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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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:
The opponent filed an opposition against all the goods of European Union trade mark
application No 13 604 129 for the figurative sign . The opposition is
based on European Union trade mark registration No 9 917 527 for the figurative
mark . The opponent invoked Article 8(1)(a) and (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
Decision on Opposition No B 2 519 919 page: 2 of 6
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, inter alia, the following:
Class 31: Fresh fruits and vegetables.
The contested goods are the following:
Class 29: Preserved fruits; preserved vegetables; preserved mushrooms.
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 preserved fruits; preserved vegetables; preserved mushrooms are
foodstuffs of plant origin which have been processed to keep their properties and be
stored for a long time. The opponent’s fresh fruits and vegetables are also foodstuffs
of plant origin in their natural state or otherwise not preserved. They have the same
purposes and can have the same nature, producers or providers, end users and
distribution channels. Moreover, they are in competition. Therefore, they are highly
similar.
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 highly similar are rather cheap goods for
daily consumption, frequently purchased and directed at the public at large. The
degree of attention is, therefore, below average.
c) The signs
Earlier trade mark Contested sign
Decision on Opposition No B 2 519 919 page: 3 of 6
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).
The unitary character of the European Union trade mark means that an earlier
European Union trade mark can be relied on in opposition proceedings against any
application for registration of a European Union trade mark that would adversely
affect the protection of the first mark, even if only in relation to the perception of
consumers in part of the European Union (18/09/2008, C-514/06 P, Armafoam,
EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the
relevant public of the European Union is sufficient to reject the contested application.
The common element ‘OLE’ is meaningful in certain territories, for example, in those
countries where Spanish is understood and it will be perceived as an exclamation of
approval or encouragement. Consequently, the Opposition Division finds it
appropriate to focus the comparison of the signs on the Spanish-speaking part of the
public.
The earlier mark is a figurative mark consisting of the verbal elements ‘VITA OLÉ’
followed by an exclamation mark ‘!’. These elements possess a characteristic
arrangement within the sign and also a characteristic stylisation in red, white and
blue. Next to and partially superimposed on the letter ‘O’ of the word ‘OLÉ’ a black
bull is depicted. All the elements are placed against a light blue background which is
purely decorative and non-distinctive.
The word ‘OLÉ’ will be perceived as the exclamation of approval or encouragement
abovementioned. As it has not any meaning in relation to the goods in question, it
has an average distinctive character.
The word ‘VITA’ will most likely be associated with the Latin word for ‘life’
(28/02/2017, R 1277/2016-5, Vive Soy). Given its similarity to and shared etymology
with the words ‘vitamin’ and ‘vital’ and words that derive therefrom, this word will be
associated with life or health. Bearing in mind that the relevant goods are foodstuffs,
it is considered that this element is allusive of and therefore of limited distinctiveness
for these goods, since consumers will understand it as conveying the message that
the foodstuffs in question are healthy.
The bull device will be perceived as such. As this element is not descriptive or
allusive for the goods in question, it is distinctive.
Taking into account the size and position of all the elements in the earlier mark, the
word ‘OLÉ’ and the exclamation mark ‘!’ are the dominant elements as they are the
most eye-catching ones.
The contested sign is a figurative mark consisting of the verbal element ‘OLE’
followed by an exclamation sign ‘!’ in stylised blue letters against a white and yellow
circle. Therefore it is composed of a distinctive verbal element and a less distinctive
figurative element of a purely decorative nature. Consequently, the verbal element is
more distinctive than the figurative element.
Decision on Opposition No B 2 519 919 page: 4 of 6
Visually, the signs coincide in the word ‘OLE’, followed by an exclamation mark,
which are the dominant or most distinctive elements of the signs. They differ in the
additional accent over the letter ‘É’ and in the additional verbal element ‘VITA’ of
limited distinctive character of the earlier mark. The signs also differ in their figurative
elements: the bull device, the light blue background and the yellow circle. The
stylisation of the verbal elements constitutes a further point of difference.
Account must be taken of the fact that 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). Therefore, the signs
are visually similar to an above average degree.
Aurally, the pronunciation of the signs coincides in the syllables ‘O-LE’, present
identically in both signs, the accent in the earlier mark does not lead to a significant
aural difference. The signs also coincide in the emphasis given by the presence of
the exclamation mark in both signs. The pronunciation differs in the sound of the less
distinctive and non-dominant element ‘VITA’ of the earlier mark, which has no
counterpart in the contested sign. The figurative elements, such as the bull device
and the yellow circle, are not subject to an aural assessment.
Therefore, the signs are aurally highly similar.
Conceptually, the signs will be associated with an exclamation of approval or
encouragement whereas the additional concepts conveyed by the earlier mark are
less obvious because of its reduced visual impact (bull device) or its lower distinctive
character (‘VITA’). Therefore, as they will be associated with a similar meaning, the
signs are conceptually highly similar.
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
normal, despite the presence of less distinctive elements in the mark as stated above
in section c) of this decision.
e) Global assessment, other arguments and conclusion
According to the case-law of the Court of Justice, in determining the existence of
likelihood of confusion, trade marks have to be compared by making an overall
Decision on Opposition No B 2 519 919 page: 5 of 6
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, § 22 et seq.). Likelihood of confusion must be assessed
globally, taking into account all the circumstances of the case.
Likelihood of confusion implies some interdependence between the relevant factors,
and, in particular, similarity between the trade marks and between the goods or
services. Accordingly, a lesser degree of similarity between the goods or 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 conflicting signs and assumes
that the goods/services covered are from the same or economically linked
undertakings.
In the present case, the goods at issue are highly similar. They target the public at
large, which has a lower degree of attention.
The similarity between the signs, taking into account all the relevant factors, results
from the high degree of aural and conceptual similarity and the above average visual
similarity in the most distinctive or dominant verbal elements of the signs.
Account must be taken of the fact that the differences in the additional verbal and
figurative elements and in the stylisation of each mark are likely to have a limited
impact for the public, taking into account that the public’s degree of attention is below
average and consumers rarely have the chance to make a direct comparison
between different marks, but must trust in their imperfect recollection of them
(22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Therefore, these
differences cannot overshadow the visual, aural and conceptual commonalities
between the earlier mark and the contested sign. Consequently, as the goods in
question are highly similar, a likelihood of confusion exists.
Considering all the above, there is a likelihood of confusion on the part of the
Spanish-speaking part of the public. As stated above in section c) of this decision, a
likelihood of confusion for only part of the relevant public of the European Union is
sufficient to reject the contested application.
Therefore, the opposition is well founded on the basis of the opponent’s European
Union trade mark registration No 9 917 527. It follows that the contested trade mark
must be rejected for all the contested goods.
Since the opposition is fully successful on the basis of the ground of Article 8(1)
(b) EUTMR, there is no need to further examine the other ground of the opposition,
namely Article 8(1)(a) EUTMR.
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.
Decision on Opposition No B 2 519 919 page: 6 of 6
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
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
Sigrid
DICKMANNS
Octavio MONGE
GONZALVO
Denitza STOYANOVA-
VALCHANOVA
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.