OPPOSITION No B 2 769 191

La Zaragozana S.A., Ramón Berenguer IV, 1, 50007 Zaragoza, España (opponent), represented by Polopatent, Dr. Fleming, 16, 28036 Madrid, Spain (professional representative)

a g a i n s t

Przedsiębiorstwo Handlowe Andrzej Czachorowski, Czaple 23, 80-298 Gdańsk-Kokoszki, Poland (applicant).

On 30/06/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 769 191 is rejected in its entirety.

2. The opponent bears the costs.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 14 941 215 namely against some of the goods in Class 32. The opposition is based on, inter alia, Spanish trade mark registration No 83 762. 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 Spanish trade mark registration No 83 762.

1. The goods

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

Class 32: Beers of all kinds.

The contested goods are the following:

Class 32: Non-alcoholic beer, Ginger ale; semi-finished; Non-alcoholic extracts of hops for making beer.

Some of the contested goods are identical to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark.

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 assumed to be identical are directed at the public at large as well as at business customers with specific professional knowledge or expertise.

The degree of attention is considered to be average.

3. The signs

AMBAR
Earlier trade mark	Contested sign

The relevant territory is Spain.

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).

Neither of the verbal elements of the contested sign has no meaning for the relevant public. Therefore, they are distinctive.

The earlier mark, AMBAR, will be understood as ‘a brownish yellow; a hard, transparent, yellowish-brow substance that was formed in ancient times from resin’. This element is considered to be distinctive.

The rather standard stylisation of the contested sign is purely decorative.

The initial part of the contested sign is completely different to the earlier mark. Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Visually, the signs coincide in the letters ‘A-M-B-*-R’. However, they differ in the letter ‘A’ of the earlier mark and the letter ‘E’ and the words ‘not’, ‘spead’, ‘from’ and ‘water’ and the stylisation of the contested sign.

Therefore, the signs are similar to a very low degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛ A-M-B-*-R’, present in both signs. The pronunciation differs in the sound of the letter ‘A’ of the earlier mark and the letter ‘E’ and the words ‘not’, ‘sped’, ‘from’ and ‘water’ of the contested sign.

Therefore, the signs are similar to a very low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Since one of the signs will not be associated with any meaning, 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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as normal for all of the goods in question.

5. Global assessment, other arguments and conclusion

The marks are visually and aurally similar to a very low degree, and they are conceptually not similar. In particular, they are similar only to the extent they coincide in the letters ‘A-M-B-*-R’. However, they have a very different length, structure and composition. The earlier mark is composed by one word whereas the contested sign is composed by five words. The earlier mark, AMBER is similar only to the third element of the contested sign, ‘AMBER’, that is lost among other elements that are totally different to the earlier mark. Moreover, the earlier mark has a meaning for the relevant public whereas the element ‘AMBER’ lacks of meaning.

The additional elements of the contested sign are clearly perceivable and sufficient to exclude any likelihood of confusion between the marks.

Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

The opponent has also based its opposition on the following earlier trade marks:

European Union trade mark registration No 4 328 911 for the word mark CERVEZAS AMBAR;

European Union trade mark application No 13 960 621 for the figurative mark ;

European Union trade mark registration No 14 749 535 for the figurative mark

;

Spanish trade mark registration No 1 674 949 for the word mark AMBAR-GREEN;

Spanish trade mark registration No 2 760 463 for the figurative mark .

Spanish trade mark registration No 3 018 141 for the word mark CERVISIA AMBAR.

The other earlier rights invoked by the opponent are less similar to the contested mark. This is because they contain further figurative elements and additional words such as ‘FAB’, ‘GREEN’, etc., which are not present in the contested trade mark. Therefore, the outcome cannot be different with respect to goods for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods. The contested sign conveys a meaning for the English-speaking public. Insofar the earlier marks, only the earlier mark ‘CERVEZA AMBAR’ will convey a meaning for the English-speaking public as the element ‘CERVEZA’ is a basic Spanish term and will be understood as ‘beer’. This element is non-distinctive for the relevant goods. Therefore, in that case, even more so, there is no likelihood of confusion.

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. In the present case the applicant did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.

The Opposition Division

Birgit FILTENBORG

Francesca CANGERI SERRANO

Michele M. BENEDETTI-ALOISI

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.