OPPOSITION No B 2 542 184

Kaufland Warenhandel GmbH & Co. KG, Rötelstr. 35,74172 Neckarsulm, Germany (opponent), represented by Boehmert & Boehmert Anwaltspartnerschaft mbB - Patentanwälte Rechtsanwälte, Hollerallee 32, 28209 Bremen, Germany (professional representative)

a g a i n s t

Vicente Peris S.A.,Travesía Roca 1-3 Barrio Cuiper, 46134 Foios, Spain (applicant), represented by Adelaida Espinosa Cuartero, c/ San Cristobal 5-5ª, 46003 Valencia, Spain (professional representative).

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

DECISION:

1. Opposition No B 2 542 184 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 13 788 419 for the figurative mark . The opposition is based on International trade mark registration No 1 158 866 designating the EU for the figurative mark . 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:

Class 29: Curd and curd preparations with fruit purée or fruit preparations; yoghurt and yoghurt preparations with fruit purée or fruit preparations.

The contested goods are the following:

Class 29: Preserved, frozen, dried and cooked fruits and vegetables.

Class 31: Fresh fruits and vegetables.

The contested preserved, frozen, dried and cooked fruits and vegetables in Class 29 are dissimilar to the opponent’s yoghurt and curd. Although the goods might target the same end users, their nature is different. Moreover, the goods in comparison are usually produced by different undertakings, since the process of preserving and packaging of preserved fruits is not the same as milk processing and requires different plant installations and machinery, and they are commercialised through different distribution channels. Furthermore, they are neither complementary nor in competition with each other.

The fact that the earlier yoghurts (or curds) contain as ingredients some of the opponent´s goods, preparations with fruit purée or fruit preparations, is not in itself sufficient to find them similar since consumers will not think that the same entity is responsible for manufacturing those goods.

As regards the contested fresh fruits and vegetables in Class 31, these goods are essentially products that have not been subjected to any form of preparation for human consumption (according to the explanatory note for the class). In general, the producers, end consumers and distribution channels of the goods in Class 31 generally also differ significantly from those of the opponent´s goods in Class 29. The sole fact that yogurt may be used in some manner in conjunction with the contested fruits, is not in itself enough to find them similar since this link is not a material one.

Therefore, all goods of the contested mark are dissimilar to the goods protected by the earlier mark.

2. Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

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

Natascha GALPERIN

Gonzalo BILBAO TEJADA

Dorothée SCHLIEPHAKE

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.