OPPOSITION No B 2 700 733

Intersnack Group GmbH & Co. KG, Peter-Müller-Str. 3, 40468 Düsseldorf, Germany (opponent), represented by Harmsen Utescher, Neuer Wall 80, 20354 Hamburg, Germany (professional representative)

a g a i n s t

Signature Snacks L.L.C,  Dubai Investment Street PO Box 474006, Dubai, United Arab Emirates (applicant), represented by Isern Patentes y Marcas, S.L., Avenida Diagonal, 463 bis, 2° piso, 08036 Barcelona, Spain (professional representative).

On 19/05/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 700 733 is upheld for all the contested goods.

2.        European Union trade mark application No 14 963 425 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 14 963 425. The opposition is based on European Union trade mark registration No 8 950 388. 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 29: Extruded and pelletised or otherwise manufactured or processed potato products for snacks; roasted, dried, salted, spiced, hulled and prepared nuts, cashew nuts, pistachio kernels, almonds, peanuts; preserved, dried and cooked fruits. 

Class 30: Extruded and pelletised or otherwise manufactured or processed tapioca, manioc, rice, maize, wheat or other cereal products for snacks; savoury biscuits and pretzels; muesli bars, mainly consisting of nuts, dried fruits, processed cereal grains; chocolate and chocolate products; sauces. 

Class 31: Unprocessed nuts, cashew nuts, pistachio kernels, almonds, peanuts and seeds.

The contested goods are the following:

Class 30: Crackers; crackers filled with cream.

The contested crackers; crackers filled with cream are included in the broad category of the opponent’s savoury biscuits. Therefore, they are identical.

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

3. The signs

Earlier trade mark	Contested sign

The relevant territory is the European Union.

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.

Since the words ‘SNIPS’ and ‘SNAPS’ convey different meanings in English, the Opposition Division finds it appropriate to focus the comparison of the signs on the non English-speaking part of the public since for them these words are meaningless and therefore they are more likely to confuse these elements.

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).

As regards the contested sign it must be observed that its overall impression is dominated by the word SNAPS, since it is depicted in much bigger letters than the words SIGNATURE SNACKS and placed within a commonplace and therefore weak element. Hence, irrespective of whether the non-English speaking part of the public understands that the words SIGNATURE SNACKS make reference to the supreme quality of the goods in question, the public will pay more attention to the element SNAPS than to the text in the label.

Visually, the dominant element of the contested sign SNAPS and the sole element of earlier mark SNIPS are highly similar since they merely differ in their central vowels I versus A. Although these words differ in their typeface and the contested sign’s additional elements – the label with the word ‘SIGNATURE SNACKS’ inside -, these elements cannot counterbalance the overall similar impression of the competing marks. Considering that consumers only occasionally have the opportunity to compare marks next to each other, they will mainly remember the word SNIPS of the earlier mark and the dominant word SNAPS of the contested sign and not so much their decorative weak elements such as the typefaces of the marks’ verbal elements and the label in the contested sign or the small print within. Hence, the signs must be considered visually similar to an average degree.

Aurally, the words SNIPS and SNAPS will be pronounced in one syllable, all starting and ending with the same consonant string, SN-PS, which gives these words a highly similar rhythm and intonation. The difference in their respective second letters I and A is not sufficiently outstanding to counterbalance the more striking similarities caused by the same two first and last consonants. Since the word SNAPS clearly stands out as the more important verbal element of the contested sign, it is not likely that the lesser visible words SIGNATURE SNACKS will be pronounced. However, even if they would be pronounced, the more remarkable similarity between the words SNIPS and SNAPS will not go unnoticed. Therefore, the marks are aurally at least similar to an average degree.  

Conceptually, neither of the signs as a whole has a meaning for the non-English speaking part of the relevant public and, therefore, the conceptual aspect does not influence the assessment of the similarity of the signs. Even if parts of the contested sign may evoke a concept, like the basic English word SNACKS or the label, this would not serve to differentiate the marks conceptually, since the words snacks would be understood as a clear reference to the nature of the goods and the label as a banal decorative element.  

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 appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (eighth recital of the CTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C-342/97, ‘Lloyd Schuhfabrik’, EU:C:1999:323, § 18; 11/11/1997, C-251/95, ‘Sabèl’, EU:C:1997:528, § 22).

Such a global assessment of a 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 greater degree of similarity between the goods or services may be offset by a lower degree of similarity between the marks, and vice versa (see to that effect, 22/06/1999, C-342/97, ‘Lloyd Schuhfabrik’, EU:C:1999:323, § 20; 11/11/1997, C-251/95, ‘Sabèl’, EU:C:1997:528§ 24; 29/09/1998, C-39/97, ‘Canon’, EU:C:1998:442, § 17).

As has been concluded above, the earlier mark is considered to enjoy a normal degree of inherent distinctiveness. Furthermore, the contested goods were found identical to those of the earlier mark and are directed at the public at large whose level of attention is average. The marks in dispute have been found to be visually and aurally similar to an average degree, while the signs do not convey any clearly differentiating concepts that will aid the relevant consumers in distinguishing between them.

In light of all the foregoing considerations, also taking into account the notion of imperfect recollection and the fact that the marks cover identical goods, the Opposition Division concludes that the differences between the signs in question are not sufficient to rule out a likelihood of confusion considering that these reside in weak figurative elements and are written in much smaller print than the more striking highly similar words ‘SNIPS’ and ‘SNAPS’.  

Therefore, it must be concluded that the relevant non-English speaking part of the public is likely to confuse the marks or believe that the goods in question come from the same undertaking or, as the case may be, economically linked undertakings. 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 8 950 388. It follows that the contested trade mark must be rejected for all the contested 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

Christian RUUD

Adriana VAN ROODEN

Benoit VLEMINCQ

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.