OPPOSITION No B 2 766 940
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 (professional representative)
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 (professional representative).
On 25/08/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 766 940 is upheld for all the contested goods.
2. European Union trade mark application No 15 544 191 is rejected in its entirety.
3. The applicant bears the costs, fixed at EUR 620.
REASONS:
The opponent filed an opposition against all the goods of European Union trade mark application No 15 544 191 for the word mark ‘RAPTOR’. The opposition is based on German trade mark registration No 30 2013 055 824 for the word mark ‘RAPTOR’. 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 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 fruit juices.
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; Isotonic 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 synonyms.
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.
- The signs
|
RAPTOR |
RAPTOR |
|
Earlier trade mark |
Contested sign |
The signs are identical.
- Global assessment, other arguments and conclusion
The signs are identical and some of the contested goods, namely mineral waters and other non-alcoholic drinks, fruit beverages and fruit juices, energy drinks, isotonic drinks, are identical. Therefore, the opposition must be upheld under Article 8(1)(a) EUTMR for these goods.
Furthermore, the contested beer, syrups and other preparations for making beverages are highly similar to opponent’s goods. Given the identity of the signs, there is a likelihood of confusion within the meaning of Article 8(1)(b) EUTMR and the opposition must also be upheld for these 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 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 Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, 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
|
Martin EBERL |
Alexandra APOSTOLAKIS |
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.