OPPOSITION No B 2 442 336

Rauch Fruchtsäfte GmbH, Langgasse 1, A-6830 Rankweil, Austria (opponent), represented by Michael Konzett, Fohrenburgstr. 4, A-6700 Bludenz, Austria (professional representative)

a g a i n s t

Ioan Popa, Scarisoara No. 95, Alba Iulia, Alba, Romania (applicant), represented by Cabinet M. Oproiu, 42 Popa Savu Street, Sector 1, Bucharest, Romania (professional representative).

On 02/09/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 442 336 is upheld for all the contested goods and services, namely

Class 29: Fresh and frozen poultry meat, products based on poultry meat; poultry; meat poultry extracts.

Class 43: Services for providing fresh and frozen poultry meat, products based on poultry meat, poultry and meat poultry extracts; temporary accommodation.

2. European Union trade mark application No 13 169 024 is rejected for all the contested goods and services. It may proceed for the remaining services.

3. The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 13 169 024 namely against all the goods and services in Classes 29 and 43. The opposition is based on, inter alia, Austrian trade mark registration No 278 314, as well as four other Austrian, one Estonian and five International trade mark registrations. The opponent invoked Article 8(1)(b) and 8(5) 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 opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s Austrian trade mark registration No 278 314.

1. The goods and services

The goods on which the opposition is based are the following:

Class 29: Meat, fish, poultry and game; Meat extracts; Preserved, frozen, dried and cooked fruits and vegetables; Jellies, jams, compotes; Eggs; Milk and milk products; Edible oils and fats; Fruit pulp; Fruit puree; Fruit concentrates; Preserved fruits; Fruit preparations: Fruit jellies; Apple puree; Tomato puree; Milk and milk products with coffee or a coffee flavour.

Class 30: Coffee, tea, cocoa and artificial coffee; Coffee based drinks: Drinking chocolate; Coffee beverages with milk; coffee-based beverages with milk; Cappuccino; Macchiato: Latte-macchiato; Iced coffee; Rice; Tapioca and sago; Flour and preparations made from cereals; Bread, pastry and confectionery; Edible ices; Sugar, honey, treacle: Yeast, baking-powder; Salt: Mustard; Vinegar, sauces (condiments); Fruit sauces; Spices; Ice; Tea drinks; Ice tea; Tea-based beverages; Tea based and/or water-based beverages; Tea­ based beverages with fruit flavouring: Non-alcoholic beverages with tea flavour; Fruit teas: Fruit teas with lemon and/or elderflower flavour; Fruit tea with peach and/or honey favour; Coffee flavoured soft drinks; Non-alcoholic beverages containing tea or tea extracts; Non-alcoholic beverages containing coffee or coffee extracts.

Class 32: Beers; Mineral and aerated waters; Non-alcoholic beverages: Fruit beverages and fruit juices: Nectars: Fruit nectars; Fruit nectar beverages; Vegetable drinks and vegetable juices: Syrups and other preparations for making beverages: Energy Drinks: Lemonades: Non-alcoholic beverages, in particular with fruit flavouring: Smoothies; Flavoured water-based and/or tea-based beverages: Tea-based and/or water­ based beverages: Coconut juice; Coconut water: Tomato juice; Non-alcoholic beverages made with fruits; Nan-alcoholic fruit extracts; Fruit juice concentrate; Cocktails, non-alcoholic; Isotonic drinks; Non-alcoholic beverages with coffee components or a coffee flavour, non-alcoholic energy drinks with coffee components or a coffee flavour; Must; Non-alcoholic aperitifs; Non-alcoholic beverages consisting of coconut juice or with coconut juice flavouring or with coconut flavouring; Whey beverages; Non-alcoholic beverages with tea favour: Coffee favoured soft drinks: Non-alcoholic beverages with fruit flavouring; Non-alcoholic beverages containing fruits or fruit extracts.

Class 33: Alcoholic beverages (except beers); Alcoholic fruit beverages; Fruit (Alcoholic beverages containing -); Pre-mixed alcoholic beverages, other than beer-based; Alcoholic cocktail mixes.

Class 43: Services for providing food and drink, including providing food and beverages, and temporary accommodation; Catering; Bar services, in particular juice bars services.

The contested goods, after a limitation requested by the applicant, are the following:

Class 29: Fresh and frozen poultry meat, products based on poultry meat; poultry; meat poultry extracts.

Class 43: Services for providing fresh and frozen poultry meat, products based on poultry meat, poultry and meat poultry extracts; temporary accommodation.

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

The contested fresh and frozen poultry meat, products based on poultry meat, poultry all fall into the broad category poultry covered by the opponent’s earlier right. The same applies to the contested meat poultry extracts which belong to the opponent’s broad category meat extracts. Therefore the goods are identical.

Contested services in Class 43

Temporary accommodation is included in both lists of services, while the contested services for providing fresh and frozen poultry meat, products based on poultry meat, poultry and meat poultry extracts fall under the broad category of the opponent’s services for providing food. Therefore the services are also 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 meat products and extracts in Class 29 and the temporary accommodation services in Class 43 mainly target the public at large. The same applies, in principle, to the contested services in Class 43, while it should be noted that services providing frozen meat and meat extracts usually target professionals of the restaurant business or the food industry, including businesses who will select their suppliers of meat with particular scrutiny. The attentiveness of the relevant public will thus range from average to high.

3. The signs

BRAVO
Earlier trade mark	Contested sign

The relevant territory is Austria.

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 earlier mark is a word mark “BRAVO”, which will be perceived as a cheer meaning excellent, well done. Apart from some vague positive connotations, the distinctive character of this term is normal as “it is unclear who says ‘BRAVO’ to whom, and what is being praised (judgment of 04/10/2001, C-517/99, Bravo, EU:C:2001:510).”

The contested sign is a figurative mark consisting of the word “bravis” written in fairly standard yellow lower case characters placed within a red rectangle with yellow edges. The letter “b” is somewhat stylised by a drop-shaped graphic sign and a red dot.

Visually, the signs coincide in their initial letters “BRAV” and they differ in the ending letters “O” of the earlier sign and “IS” of the contested sign.

It is important to note that in word marks or in signs containing a verbal element, the first part is generally the one that primarily catches the consumer’s attention and, therefore, will be remembered more clearly than the rest of the sign. This means that in general the beginning of a sign has a significant influence on the general impression made by the mark (judgments of 15/12/2009, T-412/08, Trubion, EU:T:2009:507, § 40; 25/03/2009 T-109/07, Spa Therapy, EU:T:2009:81, § 30).

As for the particular stylisation of the contested sign, it should be remembered that when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37; decisions of 19/12/2011, R 233/2011‑4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011‑5, Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).

Therefore, the design elements of the contested sign, i.e. the fairly standard typeface, the red rectangle with yellow edges, the drop-shaped graphic sign and the red dot will have less impact on the consumer than the coinciding initial letters.

Therefore, the signs are visually similar to a high degree.

Aurally the signs coincide in their initial sounds “BRAV” and they differ in the ending sounds “O” of the earlier sign and “IS” of the contested sign.

Therefore, the signs are aurally similar to a high degree.

Conceptually, as seen above, the earlier sign will be perceived by the relevant public as a cheer. As this meaning is unlikely to be perceived in the contested sign, the signs are conceptually not similar.

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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

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 and services 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

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods covered are from the same or economically linked undertakings.

Moreover, account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

In the present case, it is considered that the similarities existing between the signs outweigh the differences. Notably, the Opposition Division is of the view that the visual and aural coincidence placed in the first part of the signs will catch the consumer’s attention to such an extent that cannot be counteracted by the differences in the final one or two letters, the basic stylisation of the contested sign, or the concept identified only in the earlier sign.

Given the high degree of visual and aural similarity of the signs in the context of identical goods and services, consumers with average, but also those with high degree of attentiveness will be likely to assume that these goods and services come from the same or economically linked undertakings.

As for the other arguments of the parties, notably the applicant’s claim that the sign applied for is a well-known brand for fresh chicken products in Romania, it should be stressed that the right to an EUTM begins on the date when the EUTM is filed and not before, and from that date on the EUTM has to be examined with regard to opposition proceedings.

Therefore, when considering whether or not the EUTM falls under any of the relative grounds for refusal, events or facts which happened before the filing date of the EUTM are irrelevant because the rights of the opponent, insofar as they predate the EUTM application, are earlier than the applicant’s EUTM.

The applicant also refers to a previous decision of the Romanian Trademarks Office which found no likelihood of confusion between a Romanian registration identical to the contested EUTM application and two, verbal and figurative, international trade mark applications consisting of the element “BRAVO”, which are in fact two of the earlier rights the current opposition is based on.

However, it must be noted that decisions of national courts and national offices regarding conflicts between identical or similar trade marks on the national level do not have a binding effect on the Office since the European Union trade mark regime is an autonomous system which applies independently of any national system (13/09/2010, T‑292/08, Often, EU:T:2010:399).

In this context it is also worth pointing out that the applicant himself applied for the re-examination of said decision, and this appeal is currently pending in front of the Romanian Trademarks Office.

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s Austrian trade mark registration No 278 314. It follows that the contested trade mark must be rejected for all the contested goods and services.

Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing marks due to their reputation as claimed by the opponent. The result would be the same even if the earlier marks enjoyed an enhanced degree of distinctiveness.

As the earlier Austrian trade mark registration No 278 314 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods and services against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(5) EUTMR.

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

Liina PUU

Marianna KONDAS

Benoît 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 shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.