OPPOSITION No B 2 498 056

Hancock Bryggerierne A/S, Humlevej 32, 7800 Skive, Denmark (opponent), represented by Lett Law Firm P/S, Raadhuspladsen 4, 1550 Copenhagen V, Denmark (professional representative)

a g a i n s t

A.Le Coq, Laulupeo pst 15, 50050 Tartu, Estonia, (applicant), represented by Patent Bureau Kaitsepurus, Mulla 4-3, 10611 Tallin, Estonia (professional representative).

On 04/08/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 498 056 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 13 338 521. The opposition is based on, Danish trade mark registration No VR 1996 06650, HANCOCK (1), Danish trade mark registration No VR 1996 06648, (2) and Danish trade mark registration No VR 1952 00133, (3). 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:

• No 1) Earlier trade mark registration No VR 1996 06650 and No 2) earlier trade mark registration No VR 1996 06648 :

Class 32: Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

• No 3) Earlier trade mark registration No VR 1952 00133 :

Class 32: Beers and mineral waters.

The contested goods are the following:

Class 32: Beers

Beers are identically contained in the contested application and all the earlier trade mark lists of goods. 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 considered to be average.

3. The signs

The office will first compare earlier marks No 2 and No 3:

2) No VR 1996 06648 3) No VR 1952 00133
Earlier trade marks	Contested sign

The relevant territory is Denmark.

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 marks No 2 and 3 are figurative marks that contain a graphical representation of a cock’s profile facing to the left in the case of No 2 and the same graphical representation of a cock under which the word “Hancock” is placed for No 3.

The contested sign is a figurative mark that depicts a cock’s profile facing to the right and inserted in a circle, under which the word elements “A. LE COQ”, “EXTRA” and “BEER” are placed in three different levels in different fonts and sizes. These words are furthermore written in white in a black rectangle surrounded of two grey lines.

The words, “Handcock” of the earlier marks and “A.LE COQ” do not have a meaning in Danish. They are therefore distinctive of the goods at issue.

The word “extra” of the contested sign is laudatory in as much as it express a superior quality. It is thus weak for the goods at issue.

The English term “beer” in the EUTM application is descriptive of the goods in conflict. It is a basic English word that would be understood for part of the relevant public. It is therefore non-distinctive.

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).

Visually, the common feature of the marks is the device of a cock. All cocks are depicted in profile, facing to the left in the contested sign and facing the right in the earlier signs. The differences appear firstly in the graphic style of the illustrations in question. The EUTM application has a more clearly defined cock than the earlier mark where the cocks are more stylised. Finally, the general composition of the marks strengthens the visual dissimilarities.

Therefore, from a visual point of view the trade marks similar to a low degree.

Aurally, purely figurative signs are not subject to a phonetic assessment. As the earlier mark 2) is purely figurative, it is not possible to compare them aurally.

As regards the earlier mark 3), it will be pronounced as /hancock/ and the EUTM application will be referred to as /A. LE COQ EXTRA BEER/ or simply as /A. LE COQ/. They coincide in one syllable ‘COQ’ and ‘COCK’ (as it will be identically pronounced by the relevant public).

The trade marks are aurally similar to a low degree.

Conceptually, the figurative element included in all the signs, will be associated with a cock. To that extent, the signs are conceptually similar to an average degree (and not identical because the presence of the additional word elements, part of them understood in Denmark (EXTRA and BEER) as basic English words which will nevertheless be noted).

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed on the basis of earlier marks No 2 and 3.

2. Distinctiveness of the earlier marks

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 marks will rest on its distinctiveness per se. In the present case, the earlier trade marks as a whole have 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.

2. Global assessment, other arguments and conclusion

The contested goods in Class 32 are identical to the opponent’s goods.

The earlier marks 2) and 3) and the contested sign are visually and aurally similar to a low degree and conceptually similar to an average degree because a cock will be recognised by all consumers in the territory.

Nevertheless, although the signs have a cock in common, the portrayal of this element is quite different in the signs. Furthermore, there are sufficient additional elements to help consumers to differentiate the marks, such as the addition of the words “A.Le coq” and the rectangle in the contested sign, the typefaces, etc.

It is therefore unlikely that the consumer, encountering the use of both signs in relation to identical goods and having an imperfect recollection of the earlier marks, might think that the goods on which the contested mark appears are produced by the same undertaking as those sold under the earlier marks.

Considering all the above, there is no likelihood of confusion on the part of the public.

Therefore, the opposition must be rejected on the basis of the earlier Danish trade mark registration No VR 1996 06650 and Danish trade mark registration No VR 1996 06648.

The other earlier right invoked by the opponent, No 1 – corresponding to Danish trade mark registration No VR 1952 00133 is composed of the word “Hancock”. It is therefore less similar to the contested mark than the previous above compared marks. This is because it does not contain figurative elements such as the cock.

Therefore, there is no likelihood of confusion on the part of the public on the basis of this earlier right. The opposition must also be rejected on the basis of the earlier Danish trade mark registration No VR 1952 00133.

For the sake of completeness, the applicant argues that its EUTMA has reputation and filed various pieces of evidence to substantiate this claim.

The right to a EUTM begins on the date when the EUTMA 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 EUTMA falls under any of the relative grounds for refusal, events or facts which happened before the filing date of the EUTMA are irrelevant because the rights of the opponent, insofar as they predate the EUTMA, are earlier than the applicant’s EUTMA.

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 opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, the costs to be paid to the applicant are the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Jessica LEWIS

Inés GARCIA LLEDO

Ana MUÑIZ RODRÍGUEZ

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.