OPPOSITION DIVISION

OPPOSITION No B 2 817 586

Peter Stoppel, Kümmertsweiler 13, 88079 Kressbronn, Germany (opponent),

represented by Würtenbergerkunze, Maximiliansplatz 12b, 80333 München,

Germany (professional representative)

a g a i n s t

Gruppo Tonazzo S.r.l., via Caltana, 55, 35010 Villanova di Camposampiero (PD),

Italy (applicant), represented by Ufficio Veneto Brevetti, Via Sorio, 116, 35141

principally of vegetables; vegetable goods in the form of meatballs;

vegetable rissoles; fruit sauce; burgers made of soya, vegetables;

processed vegetables; preserved, dried and cooked fruits and

vegetables; frozen vegetables; vegetarian burgers; jellies;

vegetarian hotdog sausages; vegetable goods in the form of

burgers; preserved fruits; meatballs of soya, vegetables;

marmalade; preserved vegetables.

Class 30: Confectionery.

Class 31: Agricultural, horticultural and forestry products not included in other

classes; fresh fruits and vegetables.

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.

Decision on Opposition No B 2 817 586 page: 2 of 8

REASONS

The opponent filed an opposition against all the goods of European Union trade mark

application No 15 724 875 for the word mark ‘Wëggy’. The opposition is based on

European Union trade mark registration No 11 196 409 for the word mark ‘WEIGI’.

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 the following:

Class 29: Desiccated fruits.

Class 31: Fruit trees and propagating material from fruit trees; Fresh fruit.

The contested goods are the following:

Class 29: Frozen fruits and vegetables; chicken; eggs, Scotch eggs; beef; edible

Class 30: Spices; milk ices, ice creams made with soya; ice; ice creams

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As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR,

goods or services are not regarded as being similar or dissimilar to each other on the

ground that they appear in the same or different classes under the Nice

Classification.

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

with each other or complementary to each other.

The contested preserved fruits (listed twice) include, as a broader category, the

opponent’s desiccated fruits. Since the Opposition Division cannot dissect ex officio

the broad category of the contested goods, they are considered identical to the

opponent’s goods.

The contested cooked fruits; frozen fruits are similar to a high degree to the

opponent’s desiccated fruits. The goods have the same nature, share the same

distribution channels, target the same relevant public and are produced by the same

undertakings. Moreover, the goods are in competition.

The contested fruit sauce; jellies; marmalade are similar to the opponent’s

desiccated fruits. The goods have the same nature, share the same distribution

channels, target the same relevant public and are produced by the same

undertakings.

The contested frozen vegetables; frozen prepared meals consisting principally of

fruits share the same distribution channels, target the same relevant public and are

produced by the same undertakings. Therefore, they are similar to a low degree.

The contested chicken; eggs (listed twice), Scotch eggs; beef; edible oils and fats;

hamburgers; preserved meat; organic milk; loin; burgers made of gluten; frozen

and milk products; pork; meatballs of gluten; roast beef; egg yolks; meat jerky; meat

extracts and the opponent’s goods are all food products. However, the mere fact that

they all belong to foodstuffs, and that, for instance, milk products can contain fruits

does not render these goods similar. It is not likely that a manufacturer of preserved

fruits would also manufacture milk products. The process of preserving and

Decision on Opposition No B 2 817 586 page: 4 of 8

reference is made to the previous assertions on the goods protected by the earlier

mark. Moreover, they originate from different undertakings. They neither target the

same public nor move through the same distribution channels. Furthermore, there is

no complementarity or interchangeability either. Therefore, the above mentioned

contested goods are dissimilar to the opponent’s goods in Classes 29 and 31.

Contested goods in Class 30

fruits in Class 29 as confectionery includes products like Turkish delight, which are

common with the opponent’s goods in Classes 29 and 31. The contested goods do

not coincide with any of the opponent’s goods in terms of their nature and purpose,

the distribution channels and the sales outlets (they are found in distinct sections in

the supermarkets). Furthermore, they are neither complementary nor in competition.

Therefore, they are considered dissimilar.

Contested goods in Class 31

Fresh fruits are identically contained in both lists of goods.

The contested agricultural and horticultural products not included in other classes

include, as broader categories, the opponent’s fresh fruit. Since the Opposition

Division cannot dissect ex officio the broad categories of the contested goods, they

are considered identical to the opponent’s goods.

category, the opponent’s fruit trees. Since the Opposition Division cannot dissect ex

supermarkets, target the same public and are produced by the same undertakings.

The contested malt; grains; live animals; foodstuffs for animals are considered

dissimilar to the opponent’s goods in Classes 31 and 29. The goods have a different

nature, method of use and intended purpose. Moreover, they differ in the points of

It is worth noting that in regard to the goods found dissimilar, the opponent did not

provide any tangible reasoning or adduce any evidence as to why similarity could be

found.

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In the present case, the goods found to be identical or similar to varying degrees are

directed at both the public at large and professionals in the agricultural sector. The

degree of attention is average.

c) The signs

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

application for registration of a European Union trade mark that would adversely

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.

In the present case, the Opposition Division finds it appropriate to focus the

comparison of the signs on the English and Spanish-speaking part of the public,

themselves are protected, not their written form. Therefore, it is irrelevant whether a

have a normal degree of distinctiveness.

Visually and aurally, the signs are similar to the extent that they both begin with the

letters ‘We’ and also include the letter ‘g’ in the penultimate position. The fact that the

given that this is not used in English or Spanish (only for the letter ‘u’) and does not

However, they differ in the third letter ‘i’ of the earlier mark and the second ‘g’ of the

contested sign. Although the signs also differ from a visual perspective in their final

letters, namely ‘i’ for the earlier mark and ‘y’ for the contested sign, the pronunciation

of these letters is identical as regards the relevant public.

It is important to note that 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

Decision on Opposition No B 2 817 586 page: 6 of 8

first catches the attention of the reader. Moreover, the signs are not short (five letters

both marks), therefore, the differences in the middle and the end of the signs lose

impact as they will not be readily perceived by the public.

Therefore, the signs are visually similar to an average degree and aurally highly

Conceptually, neither of the signs has a meaning for the public in the relevant

not influence the assessment of the similarity of the signs.

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 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.

In the present case, the goods are partly identical, partly similar to varying degrees

and partly dissimilar. The degree of attention is average and the distinctiveness of the

earlier mark is normal.

The signs are visually similar to an average degree and aurally highly similar to the

same endings, ‘gi’ / ‘ggy’. Furthermore, there is no perceived conceptual difference to

offset such similarities. The differences, mainly based on the extra ‘i’ in third position

of the earlier mark and the extra ‘g’ of the contested sign are not sufficient to

counteract the similarities between the signs.

Decision on Opposition No B 2 817 586 page: 7 of 8

reference to the EUTMR, and not to the Office’s practice in earlier decisions

(30/06/2004, T-281/02, Mehr für Ihr Geld, EU:T:2004:198).

While the Office does have a duty to exercise its powers in accordance with the

general principles of European Union law, such as the principle of equal treatment

applied must be consistent with respect to legality. It must also be emphasised that

each case must be examined on its own individual merits. The outcome of any

case, including, for example, the parties’ assertions, arguments and submissions.

In view of the above, it follows that, even if the previous decisions submitted to the

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.

It follows from the above that the contested trade mark must be rejected for the

goods found to be identical or similar to varying degrees, even to a low degree, to

those of the earlier trade mark.

The rest of the contested goods are dissimilar. As similarity of goods and services is

a necessary condition for the application of Article 8(1) EUTMR, the opposition based

on this Article and directed at these goods cannot be successful.

COSTS

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

to bear its own costs.

Decision on Opposition No B 2 817 586 page: 8 of 8

Vanessa PAGE Jorge ZARAGOZA

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