OPPOSITION No B 2 893 306

Société Anonyme des Eaux Minérales d'Evian, 11, avenue du Général Dupas, 74500 Evian les Bains, France (opponent), represented by T Mark Conseils, 9 avenue Percier, 75008 Paris, France (professional representative)

a g a i n s t

Contemporary Drinks GmbH, Van-der-Smissen-Str. 1, 22767 Hamburg, Germany (applicant), represented by Harmsen Utescher, Neuer Wall 80, 20354 Hamburg, Germany (professional representative).

On 27/02/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 893 306 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 16 314 015 for the word mark ‘SALVE’, namely against some of the goods in Class 32. The opposition is based on French trade mark registration No 3 334 083 for the mark . The opponent invoked Article 8(1)(b) EUTMR.

PROOF OF USE

In accordance with 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 filing or, where applicable, the date of priority 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.

Proof of use of the earlier mark was requested by the applicant. However, at this point, the Opposition Division does not consider it appropriate to undertake an assessment of the evidence of use submitted (15/02/2005, T‑296/02, Lindenhof, EU:T:2005:49, § 41, 72). The examination of the opposition will proceed as if genuine use of the earlier mark had been proven for all the goods invoked, which is the best light in which the opponent’s case can be considered.

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.

a) The goods

The goods on which the opposition is based are, inter alia, the following:

Class 32: Still or sparkling water (mineral or not).

The contested goods are the following:

Class 32: Mineral water [beverages]; aerated water; non-alcoholic beverages.

The contested mineral water [beverages]; aerated water; non-alcoholic beverages include, or overlap with, the opponent’s still or sparkling water (mineral or not). Therefore, they are identical.

b) 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.

c) The signs

	SALVE
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 element ‘LA’ in the earlier mark is a definite article in French; it is used to highlight the noun that follows it. Although definite articles have less impact on consumers than the words that follow them and, consequently, are weak, the presence of this element cannot be entirely ignored in the present case, but must be considered to have a certain impact on the overall impression that the mark produces, taking into account that consumers generally tend to focus on the beginning of a sign when they encounter a trade mark, as 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.

Part of the relevant public will not perceive the element ‘SALVETAT’ in the earlier mark as having any meaning. However, another part of the relevant public will perceive it as a reference to (part of) a geographical term. Nevertheless, it is reasonable to assume that it will not be perceived as designating the geographical origin of the relevant goods for this part of the public, since it is not the name of a geographical place in itself, and since the applicant has not provided any convincing arguments for the opposite. Therefore, this element is considered to have a normal degree of distinctiveness in relation to the relevant goods, whether it is perceived as a geographical reference or not.

The element ‘SALVE’ constituting the contested sign means ‘salvo’ in English and has the following meaning: ‘discharge of fire from weapons in unison, esp on a ceremonial occasion’. Furthermore, when used within the expression ‘salve d'applaudissements‘, this element refers to ‘an outburst, as of applause’ (information extracted from Larousse and Collins Dictionary on 18/02/2019 at https://www.larousse.fr/dictionnaires/francais/salve/70767?q=salve#70001 and https://www.collinsdictionary.com/dictionary/english/salvo). As this element has no meaning in relation to the relevant goods, it has a normal degree of distinctiveness.

Neither the earlier mark nor the contested sign has any element that could be considered clearly more dominant (visually eye-catching) than other elements.

Visually, the signs coincide in the sequence of letters ‘** SALVE***’. However, they differ in the initial two letters ‘LA’, the space and the last three letters in the earlier mark, which are not present in the contested sign.

Therefore, the signs cannot be found any more than visually similar to a lower-than-average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛SALVE’. For this reason, the pronunciation differs in the sound of the letters) ‛LA *****TAT’. It is noted that the last letter in the earlier mark, ‘T’, is silent, and therefore will not be pronounced. The sounds of the pronounced differing letters have no counterparts in the contested sign. Furthermore, the stress is on the last two letters that are pronounced in the earlier mark, ‘TA’, whereas the stress is on the first three letters of the contested sign, ‘SAL’. It follows that the earlier mark consists of four syllables (/LA-SAL-VE-TAT/) with stress on the last one (the ‘T’ not being pronounced), whereas the contested sign consists of two syllables (/SAL-VE/) with stress on the first one.

Therefore, the signs are aurally similar only to a low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. For the part of the public for which both signs convey a meaning, the signs are conceptually not similar, as the conceptual meanings are dissimilar. For the part of the public for which the earlier mark has no meaning, the signs are not conceptually similar either, since one of the signs will not be associated with any meaning.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

d) 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 claimed that the earlier trade mark enjoys enhanced distinctiveness but did not file any evidence in order to prove such a claim.

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, as explained above. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) 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).

In the present case, the signs are visually similar to a lower-than-average degree, aurally similar to a low degree and conceptually not similar. The goods are identical and they are directed at the public at large displaying an average degree of attention. The distinctiveness of the earlier mark is normal for the relevant goods.

The opponent refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

While the Office does have a duty to exercise its powers in accordance with the general principles of European Union law, such as the principle of equal treatment and the principle of sound administration, the way in which these principles are applied must be consistent with respect to legality. It must also be emphasised that each case must be examined on its own individual merits. The outcome of any particular case will depend on specific criteria applicable to the facts of that particular case, including, for example, the parties’ assertions, arguments and submissions. Finally, a party in proceedings before the Office may not rely on, or use to its own advantage, a possible unlawful act committed for the benefit of some third party in order to secure an identical decision.

In view of the above, it follows that, even if the previous decisions submitted to the Opposition Division are to some extent factually similar to the present case, the outcome may not be the same.

The opponent also refers to a previous national decision to support its arguments. However, it must be noted that decisions of national courts and national offices regarding conflicts between identical or similar trade marks at national level do not have a binding effect on the Office since the European Union trade mark regime is an autonomous system, which applies independently of any national system (13/09/2010, T‑292/08, Often, EU:T:2010:399).

Even though previous national decisions are not binding, their reasoning and outcome should be duly considered, particularly when the decision has been taken in the Member State that is relevant to the proceedings.

In the present case, the previous case referred to by the opponent is not applicable to the present proceedings, as the signs in that case are completely different from the signs under comparison in the present proceedings. Therefore, this case is not relevant.

While the signs coincide in the element ‘SALVE’, this element has a clear meaning, which neutralises the lower-than-average visual similarity and low aural similarity between the signs. Although the definite article, ‘LA’, in the earlier mark is weak in itself, the fact that the signs differ both in their beginnings and endings is considered to be a relevant factor when assessing whether or not a likelihood of confusion exists, as these differences together produce a rather striking impact on the overall impressions created by the signs, making the consumers able to safely distinguish between them.

Considering all the above, even for identical goods, there is no likelihood of confusion for the public in the relevant territory. Therefore, the opposition must be rejected.

Given that the opposition is not well founded under Article 8(1) EUTMR, it is unnecessary to examine the evidence of use filed by the opponent.

COSTS

According to Article 109(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 Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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

Richard BIANCHI

Mads Bjørn Georg JENSEN

Raphaël MICHE

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.