OPPOSITION No B 2 606 260

Groupe LFE B.V., Dierenriem 5, 3738 TP Maartensdijk, Netherlands (opponent), represented by Landmark B.V. Drentsestraat 4, 3812 EH Amersfoort, Netherlands (professional representative)

a g a i n s t

Les Grands Chais De France, 1 rue de la Division Leclerc, 67290 Petersbach, France (applicant), represented by Romy Boesch, 1 rue de la Division Leclerc, 67290 Petersbach, France, (employee representative).

On 05/10/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 606 260 is upheld for all the contested goods.

2. European Union trade mark application No 14 433 701 is rejected in its entirety.

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

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 14 433 701 in Classes 32 and 33. The opposition is based on, inter alia, international trade mark registration No 1 265 293 designating Austria, France and the United Kingdom. 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.

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 international trade mark registration No 1 265 293 designating Austria, France and the United Kingdom. Furthermore, based on the principle of economy of proceedings, the examination will proceed on the basis of the United Kingdom.

1. The goods

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

Class 33:

Wines.

The contested goods are the following:

Class 32:	Beers; mineral and aerated waters and other non-alcoholic beverages; fruit beverages and fruit juices; syrups and other preparations for making beverages; aperitifs, non-alcoholic.
Class 33:	Alcoholic beverages (except beers), cider; digesters (liqueurs and spirits); wine; spirits [beverages].

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 32

The contested beers are similar to the opponent’s wines in Class 33. Although their production processes are different, these goods all belong to the same category of alcoholic drinks intended for the general public. They can be served in restaurants and in bars and are on sale in supermarkets and grocery stores. These drinks can be found in the same section of supermarkets, although they can also be distinguished to some extent by subcategory. Furthermore, they can originate from the same undertakings.

Aperitifs, non-alcoholic are beverages usually served before a meal to stimulate the appetite. As such those goods are in competition with the opponent’s wines in Class 33; they also have the same method of use, are typically distributed through the same commercial channels and target the same relevant public. Therefore they are similar to a low degree.

The contested goods mineral and aerated waters and other non-alcoholic beverages; fruit beverages and fruit juices; syrups and other preparations for making beverages are similar to a low degree to the opponents’ wines in Class 33 as they have the same method of use, are commonly distributed via the same channels and target the same relevant public. Moreover they can be in competition with the opponent’s goods.

Contested goods in Class 33

The contested wine is included in the opponent’s list of goods. Therefore, they are identical.

The contested alcoholic beverages (except beers) include, as broader category, the opponent’s wines. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested cider is an alcoholic beverage made from the fermented juice of apples. Although ciders’ production processes are different to the opponent’s wines, these goods all belong to the same category of alcoholic drinks intended for the general public. They can be served in restaurants and in bars and are on sale in supermarkets and grocery stores. These drinks can be found in the same section of supermarkets, although they can also be distinguished to some extent by subcategory. Furthermore, they can originate from the same undertakings. Therefore, they are similar.

Spirits [beverages] are drinks produced by distilling fermented grain, fruit, or vegetables. Digesters (liqueurs and spirits) are drinks, typically alcoholic, that are normally served after a meal, in theory, to aid digestion. Therefore spirits [beverages]; digesters (liqueurs and spirits) are similar to the opponent’s wines. Despite the differences in their production processes, these goods all belong to the same category of alcoholic drinks intended for the general public. They can be served in restaurants and in bars and are on sale in supermarkets and grocery stores. These drinks can be found in the same section of supermarkets, although they can also be distinguished to some extent by subcategory. Furthermore, they can originate from the same undertakings.

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 or similar to varying degrees are goods for daily consumption, not expensive and directed at the public at large. The degree of attention is considered to be average.

3. The signs

WIJNRADLER
Earlier trade mark	Contested sign

As previously noted, based on the principle of economy of proceedings, the Opposition Division’s assessment is based on the relevant territory being the United Kingdom.

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 consisting of the single word ‘WIJNRADLER’.

The contested sign is a figurative mark. It consists of various figurative elements, the first represents some lemons with some leaves with water splashes behind. Below this figurative element there is a second device consisting of a rectangle with a blue background the base of which contains a narrower rectangle or bar in yellow. In the top blue rectangle the wording ‘WITH YOU’ between quotation marks can be seen depicted in standard, capital letters in yellow. Immediately below is the text ‘Wein‑Radler’ in a rather stylised, handwritten, bigger font written in upper and lowercase white letters. Below, inside the narrower yellow rectangle or bar, the verbal element ‘·aromatized wine based drink·’ is found written in fairly minute, lower case light blue letters with a standard font.

The earlier mark as a word mark consisting of a single word has no elements that could be considered clearly more distinctive than other elements. Moreover this word (‘WIJNRADLER’) has no meaning as a whole for the relevant public in the relevant territory.

Regarding the contested sign, the text ‘Wein-Radler’ as a whole or its components (‘Wein’ and ‘Radler’ in case the relevant public would split it due to the presence of the hyphen) have no meaning in English and are not understood by the relevant public in the territory. Therefore, this element of the contested sign has a normal degree of distinctiveness for the goods at issue.

As regards the other verbal elements of the contested sign: ‘WITH YOU’ between quotation marks is devoid of any distinctive character for all the contested goods as it is merely banal or allusive to the closeness of the product to the consumer or suggesting the idea of enjoying the beverage with a partner. Regarding the element ‘·aromatized wine based drink·’ it is fully descriptive for the goods at issue; moreover due to its size and colours it is difficult to read.

Regarding the figurative device of the contested sign, the rectangles are commonplace and banal, as they consist in simple geometrical shapes. Concerning the lemons with leaves and water splashes, this device will be perceived by the relevant public as an indication of the ingredients of the goods themselves or as a serving suggestion for such goods for which protection is sought, therefore it is considered weak for all the goods at issue.

The contested sign has no elements that could be considered clearly more dominant (visually eye-catching) than other elements, though some could say that ‘Wein‑Radler’ is more visually striking given its size in comparison to the other elements.

Visually, the signs coincide in eight of the ten letters of the earlier sign: ‘W‑*‑*‑N‑R‑A‑D‑L‑E‑R’. As outlined above, this component has a higher visual impact and is the more distinctive part of the contested sign and is the totality of the earlier sign. The signs differ in the second and third letters of the earlier sign and of the dominant element of the contested mark ‘I‑J’ and ‘E‑I’ respectively, both of which contain the letter ‘I’ though in different position, and in the hyphen present only in the contested sign. They also differ in the other verbal components ‘WITH YOU’ between quotation marks and ‘·aromatized wine based drink·’ which are weak and descriptive.

The signs also differ in the figurative nature of the contested sign and the devices included therein (the rectangles) which as stated above are considered at least weak. In this respect, 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 signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛W‑*‑*‑N‑*‑R‑A‑D‑L‑E‑R’. These coincidences are in the most distinctive and noticeable element of the contested sign and in the only element of the earlier mark. As there is a natural break between the consonants ‘N’ and ‘R’ of the earlier mark, it will have the same aural effect as the hyphen present in the contested mark. The signs differ in the pronunciation of the differing letters ‘I-J’ and ‘E-I’, which will be pronounced ɪdʒ and eɪ in that order by the relevant public in English, and in the remaining verbal elements which, as already explained are weak and descriptive. Having said that, though, it cannot be excluded that part of the public could eventually pronounce the element ‘WITH YOU’.

Therefore, the signs are aurally similar to an average degree.

Conceptually, the earlier sign is a word mark with no meaning in English, and as previously mentioned, the verbal element ‘Wein-Radler’ of the contested sign or its components (‘Wein’ and ‘Radler’) have no meaning either. However the other verbal elements ‘WITH YOU’ and ‘aromatized wine based drink’ and the figurative device included in the contested sign do convey a concept. Since one of the signs will not be associated with any meaning by the public in the relevant territory, the signs are not conceptually 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.

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 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 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/services covered are from the same or economically linked undertakings.

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).

The contested goods have been found identical and similar to varying degrees. The earlier sign has a normal degree of distinctive character, and the signs are visually and aurally similar to an average degree, whilst they are not conceptually similar.

Although the coincidences in the signs are prima facie less obvious than the differences, a likelihood of confusion still exists, as the coinciding element plays an independent distinctive role in both signs and in fact is the most distinctive element. It is particularly important to consider that the relevant goods consist of beverages and given that such goods are frequently ordered in noisy establishments (bars, nightclubs) the phonetic identity between the signs is particularly relevant (see judgment of 15/01/2003, T-99/01, Mystery, EU:T:2003:7, § 48 which reflects this line of reasoning). Further, the General Court has held that in the wines sector, consumers also usually describe and recognise wine by reference to the verbal element that identifies it, in particular in bars and restaurants, in which wines are ordered orally after their names have been seen on the wine list (judgments of 23/11/2010, T-35/08, Artesa Napa Valley, EU:T:2010:476, § 62; 13/07/2005, T-40/03, Julián Murúa Entrena, EU:T:2005:285, § 56; 12/03/2008, T-332/04, Coto d’Arcis, EU:T:2008:69, § 38). Moreover the visual similarities between the signs are high as the differences are confined to less distinctive figurative elements that cannot overcome the verbal element which is practically identical in both marks.

Considering all the above, given that there is a likelihood of confusion in one of the Member States designated by the International Registration, in this case United Kingdom, there is no need to undertake an examination based on the remaining Member States as the outcome would be no better.

Therefore, the opposition is well founded on the basis of the opponent’s international trade mark registration No 1 265 293 designating, inter alia, the United Kingdom. It follows that the contested trade mark must be rejected for all the contested goods. Indeed, the similarities between the signs are more than sufficient to lead to confusion even for those goods found similar to a low degree.

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

Alistair BUGEJA

Fabián GARCIA QUINTO

Vanessa PAGE

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.