OPPOSITION No B 2 569 757

Nutrition et Nature, Z.I. de la Pomme - BP 33, 31250 Revel, France (opponent), represented by Cabinet Morelle & Bardou, Parc Technologique du Canal 9, avenue de l'Europe, 31520 Ramonville Saint Agne, France (professional representative)

a g a i n s t

Cerealps GmbH, Nummer 221, 6543 Nauders, Austria (applicant), represented by Torggler & Hofinger, Wilhelm-Greil-Str. 16, 6020 Innsbruck, Austria (professional representative).

On 08/10/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 569 757 is partially upheld, namely for the following contested goods:

Class 29: Low-fat potato chips; potato snacks; grated potato nuggets; potato-based snack foods.

Class 30: Enriched rice [uncooked]; flavoured rices; flavoured sugar confectionery; flavoured popcorn; snack food products consisting of cereal products; cereal-based snack food; snack food products made from potato flour; snack foods prepared from maize; snacks manufactured from muesli; baked goods, confectionery, chocolate and desserts; crackers; crackers made of prepared cereals; couscous [semolina]; corn flakes; crisps made of cereals; grain-based chips; cereals; buckwheat noodles; bread improvers being cereal based preparations; rice-based pudding dessert; breakfast cereals; breakfast cereals, porridge and grits; chocolate coated fruits; extruded food products made of rice; extruded food products made of maize; extruded food products made of wheat; extruded snacks containing maize; ready-to-eat cereals; chocolate based products; breakfast cereals made of rice; breakfast cereals containing fibre; breakfast cereals containing a mixture of fruit and fibre; breakfast cereals containing fruit; breakfast cereals containing honey; breakfast cereals flavoured with honey; cereals prepared for consumption by humans; processed oats for food for human consumption; whole wheat grains being cooked; fried corn; fried rice; flaked wheat; hominy; milled rice for human consumption; pellet-shaped rice crackers (arare); corn kernels being toasted; husked barley; barley prepared for human consumption; barley flakes; husked oats; husked rice; cereals for use in making pasta; chips [cereal products]; cereal cakes for human consumption; cereal preparations consisting of oatbran; cereal preparations consisting of bran; cereal products in bar form; cereal bars; preparations made from cereals; whole wheat grains being dried; sugared almonds; glazed popcorn; instant porridge; instant doughnut mixes; cereal snack foods flavoured with cheese; snack foods made from wheat; puffed corn snacks; snack foods made from corn and in the form of puffs; snack foods made from corn and in the form of rings; snack foods made from corn; snack food products made from soya flour; snack food products made from rice flour; rice-based snack food; snack food products made from cereal flour; foodstuffs containing cocoa [as the main constituent]; oat flakes; crushed oats; rolled oats and wheat; oats for human consumption; semolina; kasha [meal]; caramel coated popcorn with candied nuts; caramel coated popcorn; bran preparations for human consumption; rice crisps; whole wheat grains being preserved; artificial rice [uncooked]; vegetable flavoured corn chips; corn, roasted; food preparations based on grains; milk chocolate bars; almonds covered in chocolate; muesli; muesli desserts; muesli bars; cereal bars and energy bars; oat-based food; pasta; cereal based foodstuffs for human consumption; foods with a cocoa base; foodstuffs made from cereals; foodstuffs made from oats; foodstuffs made from maize; foodstuffs made of rice; foods produced from baked cereals; food mixtures consisting of cereal flakes and dried fruits; natural rice [processed] for food for human consumption; wild rice [prepared]; natural rice flakes; noodles; chocolate-coated nuts; nut confectionery; high-protein cereal bars; chocolates; popcorn; candy coated popcorn; puffed rice; rice; rice crackers; bars based on wheat; cereal based food bars; sesame snacks; chocolate bars; chocolate candies; candy bars; seed based snack bars; granola-based snack bars; snack bars containing a mixture of grains, nuts and dried fruit [confectionery]; cheese flavored puffed corn snacks; snack food products made from cereal starch; snack food products made from maize flour; snack food products made from rusk flour; snack foods made of whole wheat; spaghetti; sweets (non-medicated -) in compressed form; confectionery bars; confectionery chips for baking; corn candy; potato flour confectionery; sweetmeats [candy]; snack foods consisting principally of extruded cereals; coated nuts [confectionery]; processed grains; processed cereals for food for human consumption; processed cereals; processed sorghum; processed corn; processed quinoa; processed oats; maize (processed -) for consumption by humans; processed teff; processed wheat; processed grains, and goods made thereof; processed unpopped popcorn; ready to eat savory snack foods made from maize meal formed by extrusion; processed semolina; wholemeal noodles; wholemeal rice; graham crackers; wheat germ; wheat germ for human consumption; wheat germ [other than a dietary supplement]; wholewheat crisps; hot breakfast cereals; muesli consisting predominantly of cereals; whole wheat grains being precooked; chocolate-based ready-to-eat food bars; steamed rice; oatmeal for human consumption; ready-made baking mixtures; flour based chips; cake mixes; cake powder; mixed flour for food; flour mixtures for use in baking; flour mixes; preparations for making bakery products; mixes for the preparation of bread; preparations for making waffles; preparations for making pizza bases; preparations for making gateaux.

2. European Union trade mark application No 14 096 218 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 14 096 218 . The opposition is based on French trade mark registrations No 98 744 612 and No 154 181 253 . The opponent invoked Article 8(1)(b) EUTMR.

PROOF OF USE

In accordance with Article 42(2) and (3) EUTMR (in the version in force at the time of filing of the opposition, now Article 47(2) and (3) EUTMR), if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of publication of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of the French trademark registration No 98 744 612 on which the opposition is based.

The contested application was published on 29/05/2015. The opponent was therefore required to prove that the trade mark on which the opposition is based was put to genuine use in France from 29/05/2010 to 28/05/2015 inclusive.

The request was submitted in due time and is admissible as the earlier trade mark was registered more than five years prior to the relevant date mentioned above.

Furthermore, the evidence must show use of the trade mark for the goods on which the opposition is based.

The goods on which the opposition is based and subject to proof of use are the following:

Class 29: Ready meals: shepherd's pie; sausages.

Class 31: Cereal wafers; ready meals: ravioli, lasagna, canneloni; pizza; sweet or savoury pies.

According to Article 10(3) EUTMDR (former Rule 22(3) EUTMIR, in force before 01/10/2017), the evidence of use must consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods or services in respect of which it is registered and on which the opposition is based.

On 05/04/2018, in accordance with Article 10(2) EUTMDR (former Rule 22(2) EUTMIR, in force before 01/10/2017), the Office gave the opponent until 15/06/2018 to submit evidence of use of the earlier trade mark. On 15/06/2018, within the time limit, the opponent submitted evidence of use.

The evidence to be taken into account is the following:

• Annex 1 (Item 1.1 to Item 1.6) - Price lists for the years from 2010 to 2015, whereby the actual prices of the goods have been hidden by the opponent for reasons of confidentiality. These documents are in French and an English translation of the main part has been provided. On the top left of the pages, the earlier mark appears depicted either as a wordmark (‘Céréalpes’) or in its figurative form, , sometimes also displayed together with the additional text ‘Du soleil et des idées’, as . The products appearing in the lists are various types of cereal wafers (also referred to as ‘cereal pancakes’ by the opponent, ‘galettes de céréales’ in the original language, that is French) containing also vegetables and/or cheese; polenta and ‘panisse’ (or ‘panissa’, which according to the explanation of the opponent is a Provencal speciality based on chickpea flour).

• Annex 2 (Item 2.1 to Item 2.4) – The Items in this Annex include, respectively, 3 invoices dated 2011; 4 invoices dated 2012; 3 invoices dated 2013; 3 invoices dated 2014 and 2 invoices dated 2015. The invoices are in French and a translation into English of the main parts is provided. The prices of the goods in these documents have been hidden for reasons of confidentiality. The invoices are dated from 2/03/2011 to 6/02/2015 (i.e. within the relevant period) and are issued to clients in France. The amount of each of the products sold and shown in each invoice is quite considerable. For instance, in invoice No 11116017 of 9/11/2011, the first goods, Article code: 194021- ‘Galette Sesame BIO’ are sold for 102 packages, the second goods Article code 194023- ‘Galette Provencal BIO’ are sold for 150 packages, the third goods Article code 194024- ‘Galette Jardiniere BIO’ are sold for 102 packages, and so on. It is also noted, as duly pointed out by the opponent, that the products codes appearing on the invoices match the product codes on the price lists (Annex 1).

• Annex 3 (Item 3.1 to Item 3.4) – Advertisements in French with a translation of the main parts into English which have appeared in various French magazine/publications. In particular, Item 3.1: advertisement on the magazine ‘Top Nature’, edition July-August 2010 (outside the relevant period), Item 3.2: advertisement on the free magazine ‘Bio contact’ dated January 2012, of which 240.000 copies where published; Item 3.3: advertisement on the free magazine ‘Bio contact’ dated July/August 2013 (225.500 copies published); Item 3.4; advertisement on the free magazine ‘Bio contact’ dated December 2013 (233.500 copies published). The advertisements relate to the opponent’s polenta, cereal wafers, shown in their packages and bearing the opponent’s mark . On the advertisements, the earlier mark appears, on occasion, as .

• Annex 4 – Extracts from the opponent’s website, www.cerealpes.fr, showing pictures of the opponent’s wafers made of cereals, wafers made of polenta, polenta and ‘panisse’ under the earlier mark. They also show images of cookies bearing the earlier mark, which, however, are not referred to in any of the remaining documents submitted and do not form part of the basis of the present opposition. These documents are in French with a partial translation provided into English. The opponent underlines that, as mentioned in the section ‘Our history’ present on the screenshots, the opponent’s brand has been started in 1975. On the last screenshot of this annex also the development of the opponent’s mark over the years is shown:

.

Place of use

The documents submitted show that the place of use is France. This can be inferred from the language of the documents (French) and some addresses in France. Therefore, the evidence relates to the relevant territory.

Time of use

Most of the evidence is dated within the relevant period.

Extent of use

As regards the extent of use, all the relevant facts and circumstances must be taken into account, including the nature of the relevant goods or services and the characteristics of the market concerned, the territorial extent of use, and its commercial volume, duration and frequency.

The assessment of genuine use entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use.

In the present case, the documents filed, namely the invoices (Annex 2), the price lists (Annex 1) and the advertisements (Annex 4) provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use. Admittedly the total amount of 15 invoices submitted, although not particularly numerous, provide valuable information on the fact that the opponent’s products have been sold in considerable quantities over the years to clients in France. Moreover, the fact that the invoices’ numbers, as shown on the documents, are not consecutive, allows to conclude that there have been a number of other invoices issued by the opponent in between the invoices that have been filed as proof of use. In other words, the invoices are only examples since the opponent is not under the obligation of submitting every single invoice. The invoices, which are intended for retailers of the opponent’s products, refer to large quantities of products and have been issued over a period of five years. Although these documents are not a direct proof that the products in question have in fact reached the relevant public, the sales of those goods can be, nonetheless, inferred from the fact that there is a certain continuity and frequency of sales over the relevant period to the retailers.

It follows that the mark has been genuinely used on the relevant market and in the relevant period, at least for part of the goods covered by the mark, as will be seen more in detail below.

Therefore, the Opposition Division considers that the opponent has provided sufficient indications concerning the extent of use of the earlier mark.

Nature of use

The evidence shows that the mark has been used in accordance with its function and as registered for at least some of the goods for which it is registered. In this respect it is noted that the use of the mark in a form that slightly diverge from the mark as registered does not necessarily tantamount use of the mark in a different form than registered.

Indeed, the purpose of Article 18(1)(a) EUTMR, which avoids imposing strict conformity between the form in which the trade mark is used and the form in which it was registered, is to allow its proprietor, when exploiting it commercially, to vary it in such a way that, without altering its distinctive character, enables it to be better adapted to the marketing and promotion requirements of the goods or services concerned (23/02/2006, T-194/03, Bainbridge, EU:T:2006:65, § 50).

In the present case, the mark has been mostly used in a written form (‘CEREALPS’) or as registered (despite some change of the colours, a slightly different adjustment of the figurative elements and the lower case letter ‘r’, which are all non-striking details that are not readily perceptible, vs ) as can be ascertained from the images of the packaging of products, the invoices, the extracts from the opponent’s website and most of the price lists and advertising material.

However, the mark has been also used, to a lesser extent, with the inclusion of the additional text ‘Du soleil et des idées’, . The latter use is, in the opinion of the Oppostiion Division, not capable of altering the distinctive character of the earlier mark as registered, insofar as the earlier mark is clearly visible and in a prominent position in the overall composition, whilst the additional text is based at the bottom right of the mark in smaller size.

Moreover, the French text that translated into English would read as ‘Sun and ideas’ will most likely be perceived as a slogan conveying a positive message.

Considering that this representation of the earlier mark is confined to very few instances in the evidence, as opposed to the predominant use of the mark as registered (despite the slight alterations mentioned above that are certainly not capable per se of altering its distinctive character), that the representation of the earlier mark in its registered form is clearly dominant in the composition of the figurative sign and in view of the secondary role played by the additional text, due to its size and position, the distinctive character of the trademark as registered is not considered altered by the differing representation made of it in part of the material, representation that overall can be deemed to constitute an acceptable variation (10/12/2015, T-690/14, Vieta, EU: T: 2015: 950, § 50).

The Court of Justice has held that there is ‘genuine use’ of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (11/03/2003, C‑40/01, Minimax, EU:C:2003:145; 12/03/2003, T‑174/01, Silk Cocoon, EU:T:2003:68).

Taking into account the evidence in its entirety, although the evidence submitted by the opponent is not particularly exhaustive, it does reach the minimum level necessary to establish genuine use of the earlier trade mark during the relevant period in the relevant territory.

However, as also pointed out by the applicant, the evidence filed by the opponent does not show genuine use of the trade mark for all the goods covered by the earlier trade mark.

According to Article 47(2) EUTMR, if the earlier trade mark has been used in relation to only some of the goods or services for which it is registered it will, for the purposes of the examination of the opposition, be deemed to be registered in respect only of those goods or services.

In the present case, the evidence shows genuine use of the trade mark for cereal wafers which can be either plain or flavoured with, or contain, other additional ingredients, such as cheese, vegetables or legumes. Indeed, in the evidence submitted these goods all bear the name ‘Galettes de cereals’ and they appear on the price lists divided into sections depending on their specific flavour, for example ‘Natural flavours’; ‘Terroir flavours’, ‘Mediterranean flavours’, ‘Exotic flavours’, etc. These goods are all cereal wafers, regardless the specific added flavour or ingredients.

Furthermore, the mark appears to be also used in relation to ‘galettes de polenta’ (wafers made of polenta) including different vegetables and legumes. Since these goods are considered cereal-based products, insofar as the preparation of polenta involves the use of cornmeal as a main ingredient, they are to be considered encompassed by the broader specification of the earlier mark cereal wafers.

As regards the other goods shown in the evidence, it is observed that, as mentioned above, ‘polenta’ is a dish of boiled cornmeal. It may be served as a hot porridge, or it may be allowed to cool and solidify into a loaf that can be baked, fried, or grilled. ‘Panisse’ is a type of thin, unleavened wafers or crêpe made of chickpea flour. These products, which appear in the price lists in the ‘Specialities’ section, are ready meals which, as such, do not fall within any of the categories for which the earlier mark is registered in Classes 29 and 30 . Indeed, although the earlier mark cover rather specific ready meals such as shepherd's pie in Class 29 and ravioli, lasagna, cannelloni in Class 30, they do not encompass polenta or ‘panisse’.

Therefore, the use of the mark shown for ‘polenta’ and ‘panissa’, for which the earlier mark that is subject to proof of use has no protection, is not relevant for the purposes of the present proceedings.

Finally, no evidence has been submitted in relation to the remaining goods on which the opposition is based, namely ready meals: shepherd's pie; sausages. Ready meals: ravioli, lasagna, canneloni; pizza; sweet or savoury pies.

Therefore, the Opposition Division will only consider cereal wafers in its further examination of the opposition.

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 French trademark registration No 154 181 253, which was not subject to use requirement and which contains the broadest specification that also encompasses the goods for which the earlier French trademark registration No 98 744 612 has been considered registered for the purpose of these proceedings.

1. The goods

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

Class 30: Cereal and/or vegetable based preparations; biscuits; polenta; cereal wafers.

The contested goods are the following:

Class 29: Apple flakes; banana chips; potato chips; dates; edible dried flowers; peanuts, prepared; edible nuts; edible seeds; figs; low-fat potato chips; fruit chips; fruit-based snack food; ground nuts; almonds, ground; roasted peanuts; roasted nuts; salted nuts; shelled nuts; dried cranberries; dried dates; dried figs; dried fruit products; dried pulses; dried persimmon (got-gam); coconut, desiccated; dried lentils; dried nuts; dried soya beans; dried fruit; candied fruit snacks; crystallized fruits; potato snacks; coconut powder; coconut flakes; mixtures of fruit and nuts; nuts, prepared; spiced nuts; grated potato nuggets; nut-based food bars; raisins; seeds, prepared; fruit peel; potato-based snack foods; soy chips; soya [prepared]; edible sunflower seeds; sultanas; dried fruit mixes; processed pulses; pates; processed apricots; processed betel nuts; processed apples; coated peanuts; processed nuts; processed lychee fruit; processed peaches; prepared walnuts; prepared pistachio; processed fruits, fungi and vegetables (including nuts and pulses); sweetcorn [preserved]; prepared fruits; cashew nuts (prepared -); prepared coconut; sunflower seeds, prepared; processed pumpkin seeds.

Class 30: Enriched farina [meal]; enriched rice [uncooked]; flavoured rices; flavoured sugar confectionery; flavoured popcorn; snack food products consisting of cereal products; cereal-based snack food; snack food products made from potato flour; snack foods prepared from maize; snacks manufactured from muesli; wheat flour; baked goods, confectionery, chocolate and desserts; flour ready for baking; ready-made baking mixtures; crackers; crackers made of prepared cereals; couscous [semolina]; corn flakes; crisps made of cereals; flour based chips; grain-based chips; cereals; buckwheat noodles; buckwheat flour [for food]; bread improvers being cereal based preparations; rice-based pudding dessert; breakfast cereals; breakfast cereals, porridge and grits; chocolate coated fruits; extruded food products made of rice; extruded food products made of maize; extruded food products made of wheat; extruded snacks containing maize; ready-to-eat cereals; chocolate based products; breakfast cereals made of rice; breakfast cereals containing fibre; breakfast cereals containing a mixture of fruit and fibre; breakfast cereals containing fruit; breakfast cereals containing honey; breakfast cereals flavoured with honey; cereals prepared for consumption by humans; processed oats for food for human consumption; whole wheat grains being cooked; fried corn; fried rice; flaked wheat; crushed barley; hominy; flour of rice; milled rice for human consumption; unsorted wheatflour; pellet-shaped rice crackers (arare); roasted and ground sesame seeds; corn kernels being toasted; husked barley; barley prepared for human consumption; barley flakes; barley meal; barley flour [for food]; husked oats; husked rice; cereals for use in making pasta; chips [cereal products]; cereal cakes for human consumption; cereal flour; cereal preparations consisting of oatbran; cereal preparations consisting of bran; cereal products in bar form; cereal bars; cereal powders; preparations made from cereals; whole wheat grains being dried; sugared almonds; glazed popcorn; instant porridge; instant doughnut mixes; cereal snack foods flavoured with cheese; snack foods made from wheat; puffed corn snacks; snack foods made from corn and in the form of puffs; snack foods made from corn and in the form of rings; snack foods made from corn; snack food products made from soya flour; snack food products made from rice flour; rice-based snack food; snack food products made from cereal flour; flour of millet; foodstuffs containing cocoa [as the main constituent]; flour of oats; oat flakes; crushed oats; rolled oats and wheat; oats for human consumption; semolina; kasha [meal]; potato flour; caramel coated popcorn with candied nuts; caramel coated popcorn; cocoa mixes; cocoa products; cocoa; cocoa extracts for human consumption; bran preparations for human consumption; rice crisps; whole wheat grains being preserved; cake mixes; cake powder; artificial rice [uncooked]; flour; mixed flour for food; flour mixtures for use in baking; flour mixes; flour concentrate for food; flour for doughnuts; pulse flour for food; adlay flour for food; corn flour; corn starch [for food]; corn flour [for food]; vegetable flavoured corn chips; corn, roasted; corn, milled; linseed for human consumption; food preparations based on grains; milk chocolate bars; preparations for making bakery products; mixes for the preparation of bread; almonds covered in chocolate; muesli; muesli desserts; muesli bars; cereal bars and energy bars; oat-based food; pasta; cereal based foodstuffs for human consumption; foods with a cocoa base; foodstuffs made of a sweetener for making a dessert; foodstuffs made from cereals; foodstuffs made from oats; foodstuffs made from maize; foodstuffs made of rice; foods produced from baked cereals; food mixtures consisting of cereal flakes and dried fruits; natural rice [processed] for food for human consumption; wild rice [prepared]; natural rice flakes; noodles; chocolate-coated nuts; nut confectionery; nut flours; high-protein cereal bars; chocolates; popcorn; candy coated popcorn; puffed rice; rice; rice crackers; rice starch flour; bars based on wheat; cereal based food bars; rye flour; rye full grain grist; sesame seeds; sesame snacks; grist; chocolate bars; chocolate candies; candy bars; chocolate powder; chocolate chips; seed based snack bars; granola-based snack bars; snack bars containing a mixture of grains, nuts and dried fruit [confectionery]; cheese flavored puffed corn snacks; snack food products made from cereal starch; snack food products made from maize flour; snack food products made from rusk flour; snack foods made of whole wheat; soya flour; soya flour for food; spaghetti; farina [meal]; sweets (non-medicated -) in compressed form; dough flour; tapioca flour; confectionery bars; confectionery chips for baking; corn candy; potato flour confectionery; sweetmeats [candy]; snack foods consisting principally of extruded cereals; coated nuts [confectionery]; processed grains; processed cereals for food for human consumption; processed cereals; processed sorghum; processed corn; processed quinoa; processed oats; maize (processed -) for consumption by humans; processed teff; processed wheat; processed grains, starches, and goods made thereof, baking preparations and yeasts; processed unpopped popcorn; ready to eat savory snack foods made from maize meal formed by extrusion; processed semolina; wholemeal noodles; wholemeal rice; preparations for making waffles; preparations for making pizza bases; preparations for making gateaux; preparations based on cocoa; pounded wheat; wheat starch flour; graham crackers; wheat flour [for food]; wheat germ; wheat germ for human consumption; wheat germ [other than a dietary supplement]; wholewheat crisps; hot breakfast cereals; muesli consisting predominantly of cereals; whole wheat grains being precooked; chocolate-based ready-to-eat food bars; steamed rice; oatmeal for human consumption.

Class 31: Grains [cereals]; berries, fresh fruits; cereal seeds, unprocessed; unprocessed grain; barley; hazelnuts; oats; germ grains; bran; coconuts; maize; nuts [fruits]; natural seeds; rye; sunflower seeds; unprocessed grains for eating; unprocessed flax seeds; raw nut kernels; unprocessed corn; unprocessed oats; unprocessed buckwheat; unprocessed wheat; unprocessed teff; unprocessed cereals; wheat seed; wheat.

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 low-fat potato chips; potato snacks; grated potato nuggets; potato-based snack foods are considered at least similar to the opponent’s cereal and/or vegetable based preparations, insofar as the latter goods may include, for example, cereal bars and grain-based chips. The goods at issue are in competition, since they can all be consumed as snack foods and they have the same end users and distribution channels and can also be found in the same sections of supermarkets.

The remaining contested goods in Class 29 are essentially various types of processed products, including nuts, seeds and pulses, also in the form of spreads (pates). These goods have a different nature, purpose and method of use than the opponent’s goods in Class 30. They are not in competition with each other or complementary to each other. Therefore, they are dissimilar.

Contested goods in Class 30

The contested semolina; kasha [meal] are considered similar to the opponent’s polenta, insofar as these goods share the same method of use, stem from the same manufacturers and are sold through the same distribution channels. Furthermore, they are in competition.

The contested enriched rice [uncooked]; flavoured rices; flavoured sugar confectionery; flavoured popcorn; snack food products consisting of cereal products; cereal-based snack food; snack food products made from potato flour; snack foods prepared from maize; snacks manufactured from muesli; baked goods, confectionery, chocolate and desserts; crackers; crackers made of prepared cereals; couscous [semolina]; corn flakes; crisps made of cereals; grain-based chips; cereals; buckwheat noodles; bread improvers being cereal based preparations; rice-based pudding dessert; breakfast cereals; breakfast cereals, porridge and grits; chocolate coated fruits; extruded food products made of rice; extruded food products made of maize; extruded food products made of wheat; extruded snacks containing maize; ready-to-eat cereals; chocolate based products; breakfast cereals made of rice; breakfast cereals containing fibre; breakfast cereals containing a mixture of fruit and fibre; breakfast cereals containing fruit; breakfast cereals containing honey; breakfast cereals flavoured with honey; cereals prepared for consumption by humans; processed oats for food for human consumption; whole wheat grains being cooked; fried corn; fried rice; flaked wheat; hominy; milled rice for human consumption; pellet-shaped rice crackers (arare); corn kernels being toasted; husked barley; barley prepared for human consumption; barley flakes; husked oats; husked rice; cereals for use in making pasta; chips [cereal products]; cereal cakes for human consumption; cereal preparations consisting of oatbran; cereal preparations consisting of bran; cereal products in bar form; cereal bars; preparations made from cereals; whole wheat grains being dried; sugared almonds; glazed popcorn; instant porridge; instant doughnut mixes; cereal snack foods flavoured with cheese; snack foods made from wheat; puffed corn snacks; snack foods made from corn and in the form of puffs; snack foods made from corn and in the form of rings; snack foods made from corn; snack food products made from soya flour; snack food products made from rice flour; rice-based snack food; snack food products made from cereal flour; foodstuffs containing cocoa [as the main constituent]; oat flakes; crushed oats; rolled oats and wheat; oats for human consumption; caramel coated popcorn with candied nuts; caramel coated popcorn; bran preparations for human consumption; rice crisps; whole wheat grains being preserved; artificial rice [uncooked]; vegetable flavoured corn chips; corn, roasted; food preparations based on grains; milk chocolate bars; almonds covered in chocolate; muesli; muesli desserts; muesli bars; cereal bars and energy bars; oat-based food; pasta; cereal based foodstuffs for human consumption; foods with a cocoa base; foodstuffs made from cereals; foodstuffs made from oats; foodstuffs made from maize; foodstuffs made of rice; foods produced from baked cereals; food mixtures consisting of cereal flakes and dried fruits; natural rice [processed] for food for human consumption; wild rice [prepared]; natural rice flakes; noodles; chocolate-coated nuts; nut confectionery; high-protein cereal bars; chocolates; popcorn; candy coated popcorn; puffed rice; rice; rice crackers; bars based on wheat; cereal based food bars; sesame snacks; chocolate bars; chocolate candies; candy bars; seed based snack bars; granola-based snack bars; snack bars containing a mixture of grains, nuts and dried fruit [confectionery]; cheese flavored puffed corn snacks; snack food products made from cereal starch; snack food products made from maize flour; snack food products made from rusk flour; snack foods made of whole wheat; spaghetti; sweets (non-medicated -) in compressed form; confectionery bars; confectionery chips for baking; corn candy; potato flour confectionery; sweetmeats [candy]; snack foods consisting principally of extruded cereals; coated nuts [confectionery]; processed grains; processed cereals for food for human consumption; processed cereals; processed sorghum; processed corn; processed quinoa; processed oats; maize (processed -) for consumption by humans; processed teff; processed wheat; processed grains, and goods made thereof; processed unpopped popcorn; ready to eat savory snack foods made from maize meal formed by extrusion; processed semolina; wholemeal noodles; wholemeal rice; graham crackers; wheat germ; wheat germ for human consumption; wheat germ [other than a dietary supplement]; wholewheat crisps; hot breakfast cereals; muesli consisting predominantly of cereals; whole wheat grains being precooked; chocolate-based ready-to-eat food bars; steamed rice; oatmeal for human consumption; ready-made baking mixtures; flour based chips; cake mixes; cake powder; mixed flour for food; flour mixtures for use in baking; flour mixes; preparations for making bakery products; mixes for the preparation of bread; preparations for making waffles; preparations for making pizza bases; preparations for making gateaux can be divided in categories of goods belonging to the market sector of cereals and cereal preparations of various kind. The relevant categories of goods are essentially rice, breakfast cereals, porridge, cereal based preparations for human consumption, pasta and noodles, baked goods, confectionery and desserts, convenience food and snacks.

The opponent’s goods cover products belonging to the same or similar sectors of baked goods and cereal based preparations. Even if it cannot be excluded that some of the contested goods would coincide in numerous relevant criteria such as their nature, purpose, method of use, their complementarity, whether they are competing goods or that they are even identical, these goods clearly belong to one homogeneous sector of products on the market and for the majority of them they are - at least - produced by the same companies, target the same end user and are being sold through the same channels of distribution. Based on this conclusion, none of the contested goods can be considered dissimilar.

It follows, therefore, that all the contested goods are at least similar to a low degree to the opponent’s goods.

Finally, if on the one hand the opponent’s goods are finished products ready for consumption, on the other hand the remaining contested goods, namely: enriched farina [meal]; wheat flour; flour ready for baking; buckwheat flour [for food]; crushed barley; flour of rice; unsorted wheatflour; roasted and ground sesame seeds; barley meal; barley flour [for food]; cereal flour; cereal powders; flour of millet; flour of oats; potato flour; cocoa mixes; cocoa products; cocoa; cocoa extracts for human consumption; flour; flour concentrate for food; flour for doughnuts; pulse flour for food; adlay flour for food; corn flour; corn starch [for food]; corn flour [for food]; corn, milled; nut flours; rice starch flour; rye flour; linseed for human consumption; foodstuffs made of a sweetener for making a dessert; rye full grain grist; sesame seeds; grist; chocolate powder; chocolate chips; soya flour; soya flour for food; farina [meal]; dough flour; tapioca flour; starches, and goods made thereof; baking preparations and yeasts; preparations based on cocoa; pounded wheat; wheat starch flour; wheat flour [for food] are ingredients, mixes and preparations used for cooking and, in particular, for making bakery goods. These contested goods are considered dissimilar to all the opponent’s goods for the following reasons. Ingredients used for the preparation of foodstuffs are a subcategory of raw materials which need to be processed in order to become part of the ready to eat product. Nevertheless, the mere fact that one ingredient is needed for the preparation of a foodstuff is not sufficient in itself to show that the goods are similar, even though they all fall under the general category of foodstuffs (26/10/2011, T-72/10, Naty’s, EU:T:2011:635, § 35-36). Although flour may be used as an ingredient of some of the opponent’s goods, they have different natures, purposes or methods of use, are usually not produced by the same manufacturers and do not share the same points of sale (flour is usually not sold in the baked goods-section of a supermarket). The goods are also not complementary since complementarity applies only to the use of goods and not to their production process (11/05/2011, T-74/10, Flaco, EU:T:2011:207, § 40 and decision of 11/12/2012, R 2571/2011-2, FRUITINI, § 18).

Contested goods in Class 31

The contested goods in this class are land products not having been subjected to any form of preparation for consumption, such as various types of unprocessed grains, nuts and seeds. The opponent goods are, as seen above, finished products. While all the contested and the opponent’s goods belong to a general category of foodstuffs, this is not sufficient to consider them similar. The mere fact that they both have the aim of satisfying human nutritional needs is a very general purpose; considering that these goods cannot be said to meet the same or similar nutritional needs, the purpose is not necessarily the same. Also the fact that some of these goods may be offered in the same stores and supermarkets is not sufficient to assume similarity, since they differ in nature, method of use and commercial origin (by analogy 07/06/2018, R 2379/2017-5, OROBIO (fig.) / ORO et al.). It follows that they are dissimilar.

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 good found to be at least similar to a low degree are directed at the public at large.

Being that the goods at issue are every day consumer goods, of a relatively low price, the degree of attention is expected to be at most average.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is France.

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 verbal element ‘Céréalpes’ of the earlier mark, presented in handwriting upper and lower case letters, does not exist as such in French. However, it is expected to be perceived by the relevant public as the merging of the two words ‘céréal(es)’ and ‘Alpes’. In particular, despite the absence of the letters ‘es’ at the end of the word ‘Céréales‘ and the letters ‘al’ at the beginning of the word ‘alpes’ the public will have no difficulty to recognise in that verbal element the words ‘céréales alpes’. This is believed to be the case since it is common practice in commerce to use abbreviations of words or word combinations that, when merged together, lose some of their coinciding letters (as in this case, where the missing letters ‘al’ at the beginning of the word ‘alpes’ coincide with the ending of the word ‘céréal’). A similar reasoning can be applied, mutatis mutandis, to the contested sign, in which the word element ‘Cerealps’ will be easily associated to the same combination of words ‘Céréales’ and ‘Alpes’, notwithstanding the missing accents on the two ‘e’ and the misspelling of the word ‘alp’ for ‘Alpes’.

The public will therefore associate verbal elements of both marks, ‘Céréalpes’ and ‘Cerealps’, respectively, to the concept of cereals originating from the Alps area. Since these verbal elements inform consumers of the kind or ingredients of the goods at issue (indeed, cereals or cereal based goods) and their geographical origin (the Alps region), the distinctive character of these word elements is considered to be below average.

The figurative element of the earlier marks will be perceived as the stylised silhouette of two mountains and a sun placed behind them. Although this figurative element has no clear and direct meaning in relation to the relevant goods, it is nonetheless observed that the depiction of a sun or mountains on the labels of products of agricultural origin is a rather common, or even banal, feature and therefore not particularly distinctive in the present case.

The graphic representation of ears of wheat in the contested mark is considered non-distinctive since they clearly indicate the types or main characteristics of the goods in question (cereal or cereal based foodstuff).

Neither of the marks under comparison has any element that could be considered clearly more dominant than other elements.

Visually, the verbal elements of the signs coincide in the sequence of letters ‘Cerealp*s’ and differ in the additional ‘e’ at the eight position in the earlier mark. The signs further differ in the figurative elements and colours.

Taking into consideration the distinctive character of the elements of the marks, as explained above, the marks are considered visually similar to an average degree.

Aurally, since in French the letters ‘es’ in ‘Alpes’ are mute, the ending ‘alpes’ (earlier sign) and ‘alps’ (contested sign) are pronounced in the same way, hence the marks will be both pronounced as ce/re/alp.

It follows that the marks are aurally identical.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As both signs will be perceived as an allusion to ‘céréales’ and ‘Alpes’, ad taking into account the figurative elements which are, however, of a limited distinctiveness, the signs are conceptually highly 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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as below average for all the goods in question.

5. 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).

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/services covered are from the same or

economically linked undertakings.

In the present case the goods are at least similar to a low degree and are directed at the public at large who will use, at most, an average degree of attention while purchasing those goods.

The signs are considered visually similar to an average degree, aurally identical and conceptually highly similar insofar as they share an almost identical verbal element. The signs have certain differences especially due to their respective figurative elements and stylisations, albeit those features have a rather limited impact, as explained above.

Moreover, the distinctiveness of the earlier mark as a whole has been found to be below average. In this respect, it is worth to recall that although the distinctive character of an earlier mark must be taken into account when assessing the likelihood of confusion, it is only one factor among others involved in that assessment. Thus, even in a case involving an earlier mark of weak distinctive character, on the one hand, and a trade mark applied for which is not a complete reproduction of it, on the other, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see judgment of 16/03/2005, T-112/03 ‘Flexi Air’).

In particular, although the verbal elements ‘Céréalpes’/’Cerealps’ have been found distinctive to a below average degree in both signs, they are still the main indicators of commercial origin in the marks, and, therefore, the difference in their stylisation is not enough to dispel the existence of a likelihood of confusion, even for goods found similar to a low degree, as there are no other more distinctive elements in the signs.

Considering all the above and taking into account the principle of interdependence as well as 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), the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s French trade mark registration No 154 181 253.

It follows from the above that the contested trade mark must be rejected for the goods found to be at least similar 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.

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 mark due to its extensive use as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

The opponent has also based its opposition on the French trademark registration No 98 744 612 .

However, since this mark differ in minor details from the mark that has been compared and cover a narrower scope of goods, the outcome cannot be different with respect to goods for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods.

In respect of the latter mark, and for the sake of completeness, the same considerations made above concerning the claim of enhanced distinctiveness also apply. Even if the opponent had successfully shown enhanced distinctiveness for French trademark registration No 98 744 612, the conflicting goods would still be dissimilar. Since the similarity of goods and services is a condicio sine qua non for a likelihood of confusion to occur, it would be irrelevant, to that extent, whether the mark had acquired a higher degree of distinctive character as a result of its intensive use.

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.

The Opposition Division

Zuzanna STOJKOWICZ

Claudia ATTINA

Cynthia DEN DEKKER

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.