DECISION

of the Fifth Board of Appeal

of 22 April 2016

In Case R 1024/2015-5

MHCS
Paris France	Applicant / Appellant

represented by ELZABURU, S.L.P., Madrid, Spain

v

R.M. RIOJA, S.L. (Sociedad Limitada)
Laguardia Spain	Opponent / Respondent

represented by Jose Julián Fuentes Palancar, Madrid, Spain

APPEAL relating to Opposition Proceedings No B 2 236 050 (European Union trade mark application No 11 743 821)

The Fifth Board of Appeal

composed of G. Humphreys (Chairperson), A. Pohlmann (Rapporteur) and A. Szanyi Felkl (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 16 April 2013, MHCS (‘the applicant’) sought to register the word mark

ALTUM VILLARE

for goods in Classes 21, 25 and 33, among them the following goods:

Class 33 ‒ Alcoholic beverages (except beers); cider; digesters (liqueurs and spirits); wine; spirits [beverages]; alcoholic extracts or essences; wine with the registered designation of origin champagne; sparkling wine.

2. The application was published in the EUTM Bulletin No 2013/103 of 4 June 2013.

3. On 3 September 2013, R.M. Rioja, S.L. (‘the opponent’) filed a notice of opposition, based, inter alia, on its Spanish registration No M2 848 796 for the figurative mark

registered on 20 May 2009 for ‘alcoholic beverages (except beers)’ in Class 33.

4. The opponent invoked Article 8(1)(b) EUTMR. The opposition was directed against the goods in Class 33 listed above in paragraph 1 and based on all goods in Class 33 of the earlier mark.

5. The opposition was also based on two additional earlier marks: Spanish registration No M2 549 654 for the word ‘CORTIJO DE LOS VILLARES’ (registration date 11 December 2003) and Spanish registration No M2 588 378 for the word ‘CAMPO VILLARES’ (registration date 27 September 2004). On 15 April 2014, the applicant requested proof of use for these two marks, in accordance with Article 42(2) EUTMR. On 17 June 2014, the opponent furnished evidence of use.

6. On 26 March 2015, the Opposition Division adopted its decision (‘the contested decision’) upholding the opposition in its entirety and ordering the applicant to bear the costs. Its reasoning was as follows:

• The Opposition Division first examined the opposition in relation to earlier Spanish trade mark registration No M2 848 796.

• The contested ‘alcoholic beverages (except beers); cider; digesters (liqueurs and spirits); wine; spirits [beverages]; wine with the registered designation of origin champagne; sparkling wine’ are identically included or covered by the general term ‘alcoholic beverages (except beers)’ of the opposing mark. The contested goods ‘alcoholic extracts or essences’ are products of high alcohol content obtained from adding alcohol to herbs or similar condiments. ‘Alcoholic essences’ are essences/products used to create alcoholic beverages by adding alcohol to them. They have a complementarity link with the ‘alcoholic beverages’ of the earlier mark. They can coincide in distribution channels and relevant public. The goods are similar to a low degree.

• The conflicting signs are similar. Visually, the signs are similar to the extent that they coincide in the letter string ILLARE, although being different in the stylised typeface used in the earlier mark. The pictorial element which precedes these letters in the earlier mark will be identified as a letter ‘V’ depicted in highly ornate and ancient calligraphic style, however this is visually dissimilar to the standard letter ‘V’ appearing in the contested mark. The marks also differ in the final letter ‘S’ appearing in the earlier mark, and also in the remaining word and figurative elements in the marks. Aurally, the pronunciation of the signs almost coincides in the sound of the words VILLARES and VILLARE and to that extent the signs are aurally similar. In parts of the relevant territory, in the Andalusian region, these two words have an identical pronunciation, as the last letter ‘S’ will be omitted. The pronunciation differs in the sound of the elements EL CORTIJO DE LOS/ALTUM of the respective marks.

• Conceptually, the public in the relevant territory will perceive the earlier sign’s words ‘El Cortijo de los Villares’ as signifying ‘The country estate or a farm of/from the small villages’. The contested mark consists of the Latin word ‘Altum’ (meaning ‘high’) and the word ‘Villare’. The word ALTUM is very similar to the Spanish word ALTO, having the same root and the same meaning. This word is often used in the wine industry indicating the origin of the grapes, as coming from low lands or high lands, both of which have different oenological characteristics. Although VILLARE is not a Spanish word as such, it would be easily perceived by the relevant consumer as referring to ‘small town or village’ due to the similarity to the corresponding Spanish word (VILLAR). Spanish consumers will therefore understand the contested mark as referring to the concept of a hilltop village. As both signs will be perceived as referring to a small village/group of small villages, the signs are conceptually similar to that extent. The signs are not similar in respect of the remaining word elements. The signs are also not similar in respect of the device elements in the earlier mark, which contain a representation of an image of a winery or a country estate often related with wine production, not present in the contested sign.

• The element El CORTIJO (de los) of the earlier mark will be perceived as ‘a country estate/a farm’. The image of a building in the device element of the mark will similarly be perceived as that of a large country estate, winery or a farmhouse. Bearing in mind that the relevant goods are alcoholic beverages it is considered that these elements are non-distinctive for these goods because country houses or farm houses may be associated with vineyards and wine production. The public understands the meanings of these elements and will not pay as much attention to these non-distinctive elements as to the other more distinctive elements of the mark. Consequently, the impact of these elements is limited when assessing the likelihood of confusion between the marks at issue.

• The element ALTUM of the contested sign, despite the fact that it is a Latin and not a Spanish word, may be perceived as such due to a close similarity to the Spanish word ‘alto’ meaning ‘ high ground/ hill’. Bearing in mind that the relevant goods are various alcoholic beverages it is considered that this element is allusive for these goods. This word is often used in the wine industry indicating the origin of the grapes, as coming from low lands or high lands, both of which have different oenological characteristics. The part of the relevant public who understands the meaning of that element will not pay as much attention to this element as to the other more distinctive elements of the mark. Consequently, the impact of this element is limited when assessing the likelihood of confusion between the marks at issue.

• The inherent distinctiveness of the earlier mark as a whole must be seen as normal.

• The goods found to be identical or similar are directed at the public at large.

• It is considered that, when a sign consists of both word and figurative components, as is the case with the earlier mark, the word component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public will most readily refer to a sign by its verbal component rather than by describing the elements of stylisation.

• The marks have visual, aural and conceptual similarities in respect of the element VILLARE, present in the contested mark in its entirety and being fully incorporated in the element VILLARES of the earlier sign. Notwithstanding the visual differences in the presentation of these elements it is considered that they could be pronounced in an identical way by some Spanish speakers and in a very similar way be other Spanish speakers. Although VILLARE is not a Spanish word, it would be easily perceived by the relevant consumer as a ‘small town or village’ due to the similarity to the corresponding Spanish word (VILLAR). It is worthwhile mentioning that VILLARES is a plural form of VILLAR, thus creating a further link. Although both signs also contain further word elements EL CORTIJO DE LOS/ALTUM, these have been considered to have limited distinctiveness for the relevant public for the reasons given above. The device elements and stylisation elements of the earlier mark are typical of a bottle label, and do not deflect attention from the word elements upon which attention will be concentrated. As the goods are everyday goods, the attention of the public is average.

• The opposition is well founded on the basis of the opponent’s Spanish trade mark registration. It follows that the contested mark must be rejected for all the contested goods. As the earlier right ES No M2 848 796 leads to the success of the opposition and to the rejection of the contested mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent.

7. The applicant filed a notice of appeal on 25 May 2015 and sent its statement of grounds on the same day.

8. On 3 August 2015, the opponent submitted its observations.

Submissions and arguments of the parties

9. The applicant requests to set aside the decision of the Opposition Division and to award the costs to the applicant. Its reasoning is as follows:

• Both the opponent and the Opposition Division attached too much significance to the word ‘Villares’. Although it is true that there is a resemblance between ‘VILLARE’ and ‘VILLARES’ one has to bear in mind that the word ‘VILLAR’ is widely used, in combination with other elements or toponyms, by many businesses and, particularly, wineries as a brand name for beverages in Class 33.

• The Spanish word ‘villar’ (plural ‘villares’) comes from the Latin ‘villaris’ and means ‘village’. It is not surprising that the word is chosen for use in connection with wines. For example, in the wine production area ‘Rioja’ various municipalities exist which include the word ‘Villar’.

• Looking at the whole of Spain, there exist almost 200 towns or villages whose names include the word ‘VILLAR’, ‘VILLARE’ or ‘VILLARES’. Accordingly, there exist many Spanish trade marks with the word ‘Villar’ for goods in Class 33. These facts confirm that the term ‘VILLARES’, in itself, has a low degree of originality.

• Consequently, the overall visual and phonetic differences and the different conceptual associations evoked by the additional element ‘El Cortijo de los’ of the earlier marks are sufficient to exclude any likelihood of confusion between the marks.

10. In its observations, the opponent points out that the elements ‘VILLARE’ and ‘VILLARES’ are distinctive whereas the additional word ‘Cortijo’ has a low intrinsic distinctiveness. Overall, it has to be concluded that a likelihood of confusion exists between the marks in Spain.

Reasons

11. The appeal complies with Articles 58, 59 and 60 EUTMR and Rule 48 of the Implementing Regulation. It is, therefore, admissible. However, it is not well founded, for the reasons indicated here below.

On the likelihood of confusion

12. Article 8(1)(b) EUTMR provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

13. The risk that the public might believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the perception which the relevant public has of the signs and the goods or services in question, account being taken of all factors relevant to the circumstances of the case (see 09/07/2003, T‑162/01, Giorgio Beverly Hills, EU:T:2003:199, § 30 to 33 and the case-law cited therein).

14. For the purposes of applying Article 8(1)(b) EUTMR, a likelihood of confusion presupposes both that the two marks are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see 22/01/2009, T‑316/07, easyHotel, EU:T:2009:14, § 42 and the case-law cited therein).

15. The Opposition Division started the examination of the opposition on the basis of the earlier Spanish trade mark No M2 848 796 (listed at para. 3 above). The Board will proceed accordingly and first examine a likelihood of confusion for that right.

The relevant public

16. The earlier trade mark is a Spanish trade mark. The relevant public for assessing a likelihood of confusion between the marks consists of consumers in Spain.

17. Furthermore, the goods at issue, i.e. alcoholic beverages in Class 33, are aimed at the public at large. In this respect, it must be borne in mind that where the goods with which the registration application is concerned are intended for the public at large, as in the case at hand, the relevant public must be deemed to be composed of the average consumer, who is reasonably well informed and reasonably observant and circumspect (see 26/04/2007, C‑412/05 P, Travatan, EU:C:2007:252, § 62).

18. The Board recalls that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see 07/10/2010, T‑244/09, Acsensa, EU:T:2010:430, § 18 and the case-law cited therein). Alcoholic beverages like wines or sparkling wines are everyday consumer products in Spain. Thus, given the characteristics of the goods at issue, it can be stated that with regard to both parties’ goods in Class 33 that the level of attention paid by the relevant public is average (29/02/2012, T-525/10, Servo Suo, § 21); 25/10/2006, T-13/05, Oda, EU:T:2006:335, § 46).

Comparison of the goods

19. In assessing the similarity of the goods and services, all the relevant factors should be taken into account, including, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 23). Other factors may also be taken into account, such as the distribution channels of the goods and services concerned (11/07/2007, T-443/05, Pirañam, EU:T:2007:219, § 37), the usual origin and the relevant public of the goods and services.

20. The reference point is whether the relevant public would perceive the relevant products as having a common commercial origin (04/11/2003, T-85/02, Castillo, EU:T:2003:288, § 38).

21. The assessment of the similarity of the goods and services is part of the matters of law submitted for examination by the Office and a matter of law may have to be ruled on by the EUIPO, even though it was not raised by the parties, if it is necessary to resolve that matter in order to ensure a correct application of the EUTMR (16/10/2014, T‑444/12, Linex, EU:T:2014:886, § 29; 01/02/2005, T‑57/03, Hooligan, EU:T:2005:29, § 21).

22. The Board agrees with the Opposition Division’s finding that the contested goods ‘alcoholic beverages (except beers); cider; digesters (liqueurs and spirits); wine; spirits [beverages]; wine with the registered designation of origin champagne; sparkling wine’ are identical to the ‘alcoholic beverages (except beers)’ of the earlier mark.

23. As regards the contested goods ‘alcoholic extracts or essences’, the Board shares the view of the Opposition Division that they are similar to alcoholic beverages. ‘Alcoholic extracts and essences’ are generally not intended for immediate consumption but serve as a flavouring or a basic ingredient for a beverage to which another liquid is added, in particular in order to mix it (with another drink) or to dilute it (with water). Apart from this, the nature and final purpose of ‘alcoholic extracts and essences’ on the one hand and ‘alcoholic beverages (except beers)’ on the other, coincide. Furthermore, the same beverage companies are responsible for the production of these goods and they may be found next to each other for instance in liquor stores. Hence, they are highly similar (20/06/2013, R 814/2012-1, Соборное Игристое (fig.) / Российское корнет Игристое (fig.), § 23).

Comparison of the signs

24. The signs to be compared are:

	ALTUM VILLARE
Earlier Spanish mark	EUTM applied for

25. The relevant territory is Spain.

26. The conflicting marks have to be compared visually, phonetically and conceptually. Such a comparison must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (06/10/2005, C-120/04, Thomson Life, EU:C:2005:594, § 28; 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 25).

27. Furthermore, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more visual, phonetic or conceptual aspect (02/12/2009, T-434/07, Solvo, EU:T:2009:480, § 31; 13/09/2010, T-149/08, Sorvir, EU:T:2010:398, § 29; 14/04/2011, T-466/08, Acno focus, EU:T:2011:182, § 52).

28. The assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (12/06/2007, C-334/05 P, Limoncello, EU:C:2007:333, § 41).

29. The contested sign is a word mark consisting of the two words ‘ALTUM’ and ‘VILLARE’. The earlier Spanish mark is a rectangular label including word and figurative elements. The centre of the label depicts the words ‘El Cortijo de los Villares’ in a stylised script. In particular, the first letters ‘E’ and ‘V’ of the words ‘El’ and ‘Cortijo’ respectively are highly stylised. The parties do not contest that the relevant Spanish consumers will understand and pronounce the word elements of the contested sign as ‘El Cortijo de los Villares’ despite the elaborated design of the letters. The picture of a country house inside a frame can be identified on the upper part of the label.

30. The Board will first examine the dominant and distinctive elements of the signs at issue before evaluating their similarity.

31. The Board agrees with the Opposition Division that the words ‘El Cortijo’ and the picture of a country estate included in the earlier mark as well as the word ‘Altum’ of the contested sign are less distinctive than the words ‘Villares’ and ‘VILLARE’. The literal meaning of ‘El villar’ is ‘little village’. As the applicant pointed out in the statement of grounds, ‘Villar’ is likely to be perceived by the Spanish public as a toponym or part of a toponym. In that respect, ‘Villar’ can be compared with other Spanish place names like ‘El Otero’ (meaning ‘hillock’ in English) or ‘El Pazo’ (meaning ‘ancestral home’ in English). On the other hand, the term ‘El villar’ is not used in common parlance as a generic term for ‘(little) village’. Accordingly, the Spanish consumer would normally not use ‘el villar’ or ‘los villares’ when referring to a ‘village’ in general. The common Spanish word for ‘village’ is ‘pueblo’, not ‘villar’.

32. In other words, when being confronted with ‘Los Villares’ or ‘VILLARE’ the Spanish consumer will not think of generic words (‘little village’ or ‘little villages’ in general) but rather associate those terms with a (possibly invented or fictitious) Spanish place name consisting of or including those components. This association with a place name is vague, i.e. the public will not think of a specific Spanish place (like Madrid or Barcelona) but of a place name located somewhere in Spain with the element ‘Villares’/‘VILLARE’.

33. According to the applicant, there exist a large number of towns and villages in Spain including the element ‘VILLAR’ (Attachment 2). However, most of the listed place names have a specific structure and start either with ‘Villar de(l)’ (e.g. Villar de Argañan, Villar de Sapos, Villar de Matacabras) or are a combined word (e.g. Villardiga, Villargusan, Villarrubia). Only eleven villages in that list are called ‘(el) villar’ or ‘los villares’. Moreover, the number of Spanish places with the term ‘Villar’ has to be seen in the context of thousands upon thousands of different existing names for towns and villages in Spain, a country of 46 million inhabitants. Furthermore, it is unclear how many inhabitants live in the ‘VILLAR’-villages quoted by the applicant. It is a well-known fact that many Spanish villages have suffered from rural flight and depopulation. Consequently, it is likely that most of the villages listed by the applicant are not known at all by the Spanish public. From the evidence submitted by the applicant, it is impossible to conclude that ‘VILLAR’ as such is such a common and widespread place name in Spain that it could be considered weak when used in relation to alcoholic beverages.

34. Finally, the applicant did not show that ‘VILLAR’ was commonly used in relation to alcoholic beverages. The list of Spanish trade marks submitted by the applicant (Attachment 3) does not necessarily reflect the situation on the Spanish market. It is unclear how many of those registered marks (if any) have ever been used for goods in Class 33 on the Spanish market and, if yes, for which specific beverages and in which form. Most of the marks in that list are also very different from the conflicting signs.

35. To sum up, the documents submitted by the applicant are insufficient to conclude that the elements ‘Villares’ and ‘VILLARE’ are weak in relation to goods in Class 33 from the perspective of the Spanish consumer of those goods.

36. On the other hand, the word ‘El Cortijo’ is a commonly used Spanish term for ‘country estate; country house’. The Spanish consumers of alcoholic beverages will associate the term ‘El Cortijo’ with a country estate where the beverage is made, e.g. a wine estate. The picture on the upper part of the earlier mark shows a country house and thus reinforces the message conveyed by the word ‘El Cortijo’. Apart from that, where a trade mark is composed of verbal and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by quoting their name than by describing the figurative element of the trade mark (see, by analogy, 15/12/2009, T‑412/08, Trubion, EU:T:2009:507, § 4 and the case-law cited therein). In light of the characteristics of the graphic elements of the earlier mark which either reinforce the message of ‘El Cortijo’ or are banal and hardly memorable or eye-catching (the rectangular label), the Board takes the view that this reasoning applies to the present case.

37. Likewise, the word ‘ALTUM’ of the contested sign will be associated immediately with the Spanish word ‘alto’ which means ‘tall; high; upper’. The term ‘alto’ is commonly used in Spanish to refer to upper geographical places (e.g. ‘el alto Aragón’).

38. The words ‘El Cortijo’ and ‘ALTUM’ of the conflicting signs qualify and draw the public’s attention to the subsequent terms ‘de los Villares’ and ‘VILLARE’ respectively: The concept conveyed by ‘El Cortijo de Los Villares’ is that of a country estate called ‘Los Villares’ or being situated near places called ‘Villar’ or ‘Villares’. ‘ALTUM VILLARE’ refers also to a place name ‘VILLARE’ situated on higher ground.

39. It is true that consumers normally pay more attention to the beginning of a sign. However, this rule does not apply in all cases and has to be balanced with the general principle, according to which the overall impression caused by the signs has to be taken into account when examine their similarities (05/02/2016, T‑135/14, kicktipp/KICKERS et al., EU:T:2016:69, § 142; 21/01/2016, T-802/14, Lenah.C/LEMA, EU:T:2016:25, § 29; 23/04/2008, T‑35/07, Celia, EU:T:2008:125, § 37; 09/09/2008, T‑363/06, Magic seat, EU:T:2008:319, § 38; 23/09/2011, T‑501/08, See more, EU:T:2011:527, § 38).

40. In the case at hand, the ‘El Cortijo’ component of the earlier mark is a generic reference to a country estate where alcoholic beverages like wines are produced. In the Board’s opinion, the element ‘El Cortijo’ is weak in relation to alcoholic beverages. Likewise, the adjective ‘ALTUM’ (‘alto’ in Spanish) simply informs the consumers of the fact that the place name called ‘VILLARE’ is situated on higher grounds, e.g. on a hill or plateau. Both elements are weak and characterise or qualify the subsequent toponyms ‘Los Villares’ and ‘VILLARE’ as explained in paras 36-38 above. The elements ‘Los Villares’ and ‘VILLARE’ are therefore more dominant and distinctive than the first word components of those signs.

41. It is before that background that the similarity of the conflicting signs has to be assessed.

42. Visually, the element ‘VILLARE’ of the contested sign is similar to the word ‘los Villares’ of the earlier mark despite the fact that the latter is written in stylised letters. Both signs contain additional word elements, namely ‘El Cortijo de’ and ‘ALTUM’. The earlier mark also includes further figurative elements (the rectangular label and the image of a country house). Although those additional components must not be disregarded their role is less important than that of the words ‘VILLARE’ and ‘Villares’, for the reasons explained above (see para. 31-40 above). Overall, the signs are similar to a low degree.

43. Phonetically, the pronunciation of ‘VILLARE’ and ‘Villares’ is highly similar from the perspective of the Spanish public. Although the additional words of the conflicting signs have to be taken into account when evaluating the phonetic similarity between the signs, it is undeniable that the marks overlap in the pronunciation of the words ‘VILLARE’/‘Villares’. The marks, therefore, have a degree of phonetic similarity between them.

44. Conceptually, both signs will be associated by the Spanish public with a toponym called ‘Villare’ or ‘Villares’ (meaning ‘small village(s)’). Being confronted with the term ‘El Cortijo de los Villares’ the Spanish consumers will think of a country estate or country house called ‘los Villares’ or being situated near villages with the same toponym ‘Villar’. The contested sign evokes the (fictitious) name of a village called ‘ALTUM VILLARE’ (meaning ‘upper small village’). Thus, the signs are conceptually similar insofar as both marks relate, in a vague manner, to place names called ‘Villar(es)’ located somewhere in Spain (see para. 32 above).

45. Consequently, the signs are similar overall.

Conclusion on a likelihood of confusion

46. The distinctive character of the earlier mark is one of the relevant factors which need to be considered in the context of the global assessment of likelihood of confusion. The examination of the distinctive character of the earlier mark is particularly relevant in circumstances where the signs have been found similar to a low degree and where it is necessary to find out whether this low degree can be offset by a higher degree of similarity between the goods (22/09/2011, T‑174/10, A, EU:T:2011:519, § 34; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 24). In the case at hand, the earlier mark enjoys a normal degree of inherent distinctiveness for the goods at issue.

47. The most distinctive and dominant elements of the conflicting signs are the words ‘los Villares’ and ‘VILLARE’. In comparison, the additional words ‘El Cortijo’ and ‘ALTUM’ are of secondary importance when assessing the likelihood of confusion between the marks because ‘El Cortijo’ will be perceived as the country estate where the alcoholic beverage is produced whereas ‘ALTUM’ simply qualifies the subsequent word ‘VILLARE’ in the sense that the place called ‘VILLARE’ is geographically situated on higher ground (e.g. on a plateau).

48. Moreover, a global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and the similarity of the goods or services concerned. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (see 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17; 14/12/2006, T‑81/03, T‑82/03 and T‑103/03, Venado, EU:T:2006:397, § 74). Given the aforesaid, a likelihood of confusion between the marks exists for identical or highly similar goods (see paras 22-23 above) even if one took the view that the marks were only similar to a low degree.

49. Finally, account must be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must rely on his or her imperfect recollection of them (see 12/06/2007, C‑334/05 P, Limoncello, EU:C:2007:333 , § 35 and the case-law cited; 09/07/2003, T‑162/01, Giorgio Beverly Hills, EU:T:2003:199, § 33 and the case-law cited). When being confronted with a sign including the word ‘VILLARE’ for identical or highly similar beverages it cannot be excluded that the relevant Spanish public may confuse that sign with the beverages marketed by the opponent under an earlier mark with the component ‘Villares’.

50. In view of a) the identity or high degree of similarity of the goods covered by the marks, b) the visual, phonetic and conceptual similarities between the signs, c) the inherent distinctiveness of the earlier mark and d) the dominant and distinctive character of the elements ‘Villares’/‘VILLARE’ in the conflicting signs, the Board concludes that a likelihood of confusion exists between the marks from the Spanish public’s perspective.

51. As a result, the Opposition Division was right in finding that the marks in conflict are confusingly similar within the meaning of Article 8(1)(b) EUTMR in relation to all the contested goods under appeal. Since the opposition was fully successful on the basis of the earlier Spanish registration No M2 848 796 it is not necessary to assess Article 8(1)(b) EUTMR on the basis of the remaining opposing marks.

52. It follows that the appeal is dismissed in its entirety with the consequence that the Opposition Division’s refusal of the EUTM application for all the contested goods under appeal must be confirmed.

Costs

53. Since the applicant is the losing party within the meaning of Article 85(1) EUTMR, it must be ordered to bear the fees and costs.

Fixing of costs

54. In accordance with Article 85(6) EUTMR and Rule 94(7)(d)(i) and (vi) of the Implementing Regulation (IR), the Board fixes the costs to be reimbursed by the losing party. These consist of the opponent’s representation costs in the appeal proceedings of EUR 550 pursuant to Rule 94(7)(d)(vi) IR. With respect to the costs of the opposition procedure, the contested decision already contains a decision allocating and fixing the costs.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Orders the applicant to bear the costs of the appeal proceedings;

3. Fixes the total amount of costs in the appeal proceedings to be reimbursed by the applicant to the opponent at EUR 550.

Signed G. Humphreys

Signed A. Pohlmann

Signed A. Szanyi Felkl

Registrar: Signed H.Dijkema