Wëggy | Decision 2817586

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
Padova, Italy (professional representative).
On 08/01/2018, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 817 586 is partially upheld, namely for the following
contested goods:
Class 29: Frozen fruits and vegetables; frozen prepared meals consisting
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.
2. European Union trade mark application No 15 724 875 is rejected for all the
above goods. It may proceed for the remaining goods.
3. Each party bears its own costs.
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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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.

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’.
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.
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
oils and fats; frozen prepared meals consisting principally of
vegetables; vegetable goods in the form of meatballs; eggs; vegetable
rissoles; fruit sauce; hamburgers; preserved meat; organic milk; loin;
burgers made of soya, vegetables, gluten; processed vegetables;
preserved, dried and cooked fruits and vegetables; frozen meat;
frozen vegetables; vegetarian burgers; jellies; frozen burgers;
vegetarian hotdog sausages; vegetable goods in the form of burgers;
fish, poultry and game; white meat; meat; yolk of eggs; milk and milk
products; pork; preserved fruits; meatballs of soya, vegetables, gluten;
marmalade; roast beef; egg yolks; meat jerky; preserved vegetables;
meat extracts.
Class 30: Spices; milk ices, ice creams made with soya; ice; ice creams
containing chocolate, ice lollies; yeast, baking-powder; ice cream
(binding agents for -); flour and preparations made from cereals,
bread, pastry and confectionery, edible ices; vinegar, sauces
(condiments); honey, treacle; ice cream with fruit; coffee, tea, cocoa,
sugar, rice, tapioca, sago coffee substitutes; frozen pastries, pasta,
frozen pre-cooked pasta, preserved pasta; salt, mustard; frozen
pastries.
Class 31: Malt; grains and agricultural, horticultural and forestry products not
included in other classes; fresh fruits and vegetables; live animals;
foodstuffs for animals.

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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
sales outlets, the producers, the method of use and whether they are in competition
with each other or complementary to each other.
Contested goods in Class 29
Dried fruits are identically contained in both lists of goods (including synonyms).
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
vegetables; vegetable goods in the form of meatballs; vegetable rissoles; burgers
made of soya, vegetables; processed vegetables; preserved, dried and cooked
vegetables; frozen vegetables; vegetarian burgers; vegetarian hotdog sausages;
vegetable goods in the form of burgers; meatballs of soya, vegetables; preserved
vegetables are vegetables or foodstuffs such as vegetarian burgers for which the
main ingredient is a vegetable like mushrooms or soya. The opponent’s desiccated
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
meat; frozen burgers; fish, poultry and game; white meat; meat; yolk of eggs; milk
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
packaging of preserved fruits is not the same as milk processing and requires
different plant installations and machinery. Furthermore, they are neither
complementary nor in competition. In short, these goods do not share any relevant
points of contact.
The opponent’s goods in Class 31 have no relevant commonalities with the contested
goods. There is a fundamental difference in the nature and purpose and indeed

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
The contested confectionery is similar to a low degree to the opponent’s desiccated
fruits in Class 29 as confectionery includes products like Turkish delight, which are
related to dried fruits. Therefore, they share the same distribution channels, target
the same relevant public and may be produced by the same undertakings.
As regards the rest of the contested goods listed above, they have nothing in
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.
The contested forestry products not included in other classes include, as a broad
category, the opponent’s fruit trees. 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 fresh vegetables are considered similar to a high degree to the
opponent’s fresh fruit. The goods have the same nature and share the same
distribution channels. They are usually found in the same sections of the
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
sales and are not in competition or complementary.
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.
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 consumers degree of attention is likely to vary
according to the category of goods or services in question.

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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
WEIGI Wëggy
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).
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.
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,
where the signs show more similarities. Furthermore, from an aural point of view, the
sound of the endings of the signs, namely ‘gi’ and ‘ggy’, is identical for this part of the
public.
The signs in conflict are word marks. In the case of word marks, the words
themselves are protected, not their written form. Therefore, it is irrelevant whether a
word mark is depicted in lower or upper case or in a combination of the two.
Neither of the marks has any meaning in the relevant territory and, therefore, they
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
letter ‘e’ in the contested sign has an umlaut is not a significant visual difference
given that this is not used in English or Spanish (only for the letter ‘u’) and does not
prevent the relevant public from merely seeing the fifth letter of the alphabet.
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

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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
similar.
Conceptually, neither of the signs has a meaning for the public in the relevant
territory. Since a conceptual comparison is not possible, the conceptual aspect does
not influence the assessment of the similarity of the signs.
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 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.
e) Global assessment, other arguments and conclusion
Evaluating likelihood of confusion implies some interdependence between the
relevant factors and, in particular, a similarity between the marks and between the
goods or services. Therefore, a lesser degree of similarity between goods and
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).
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
extent that the signs have the same length, the same beginning, ‘We’, and aurally
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.
The applicant refers to previous decisions of the Office to support its arguments that
the marks are sufficiently different from the visual and phonetic point of view.
However, the Office is not bound by its previous decisions, as each case has to be
dealt with separately and with regard to its particularities.
This practice has been fully supported by the General Court, which stated that,
according to settled case-law, the legality of decisions is to be assessed purely with

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
and the principle of sound administration, the way in which these principles are
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
particular case will depend on specific criteria applicable to the facts of that particular
case, including, for example, the parties’ assertions, arguments and submissions.
Finally, a party in proceedings before the Office may not rely on, or use to its own
advantage, a possible unlawful act committed for the benefit of some third party in
order to secure an identical decision.
In view of the above, it follows that, even if the previous decisions submitted to the
Opposition Division are to some extent factually similar to the present case, the
outcome may not be the same.
Considering all the above, the Opposition Division finds that there is a likelihood of
confusion on the part of the English and Spanish-speaking part of the public and,
therefore, the opposition is partly well founded on the basis of the opponent’s
European Union trade mark registration No 11 196 409. 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.
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
bear the fees and costs incurred by the other party. According to Article 109(3)
EUTMR, where each party succeeds on some heads and fails on others, or if
reasons of equity so dictate, the Opposition Division will decide a different
apportionment of costs.
Since the opposition is successful for only some of the contested goods, both parties
have succeeded on some heads and failed on others. Consequently, each party has
to bear its own costs.

Decision on Opposition No B 2 817 586 page: 8 of 8
The Opposition Division
Vanessa PAGE Jorge ZARAGOZA
GOMEZ
Marta GARCÍA COLLADO
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.

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