OPPOSITION No B 2 918 095

Cristal Liminana Distillerie de la Méditerranée, 99/101, Boulevard Jeanne d'Arc, 13005 Marseille, France (opponent), represented by Novagraaf France, Bâtiment O2 - 2, rue Sarah Bernhardt CS 90017, 92665 Asnières-sur-Seine, France (professional representative)

a g a i n s t

Tokarev Oleg Viktorovich, str. Zavodskaya 4/25 AP. 45, Pushkino, Russia (applicant), represented by Patentna Pisarna D.O.O., Čopova 14, 1001 Ljubljana, Slovenia (professional representative).

On 10/05/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 918 095 is upheld for all the contested goods.

2. European Union trade mark application No 16 406 704 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 620.

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 16 406 704 ‘1852 Kurant Crystal’ (word mark). The opposition is based on French trade mark registration No 3 204 886 ‘CRISTAL’ (word mark). The opponent invoked Article 8(1)(b) EUTMR.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs, and the relevant public.

1. The goods

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

Class 33: Alcoholic beverages (except beers and wines).

The contested goods are the following:

Class 33: Vodka (other than sparkling vodka)]

The contested goods fall in the broad category of the opponent´s goods. They are therefore identical.

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 are directed at the public at large. Consumers will pay an average degree of attention during the purchase of the goods involved.

The opponent argues that the degree of attention will vary from ‘medium to low’. However, it does not provide any reasoning in relation to the possible circumstances that could lead consumers to paying a low degree of attention. The Opposition Division notes that a lower degree of attention can be associated, in particular, with habitual buying behaviour. Purchase decisions in this area relate to, for example, inexpensive goods purchased on a daily basis (judgment of 15/06/2010, T-547/08, Strumpf, EU:T:2010:235, § 43).

Since this is not strictly the case of the goods herein involved, a low degree of attention is not likely to be paid, but rather an average degree.

3. The signs

CRISTAL	1852 Kurant Crystal
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 word ‘CRISTAL’ forming the earlier mark is the French term used to refer to a glass containing a significant proportion of lead oxide, of higher density, refractive index, brightness and clarity, than other glasses. French consumers will attribute this same concept to the word ‘CRYSTAL’ in the contested sign (being highly similar in spelling and aurally identical to ‘cristal’ – see comparison below).

Even if the words ‘CRYSTAL’/’CRISTAL’ could be seen as evocative, when perceived in conjunction with the goods involved, these words are in no way descriptive of the characteristics of said goods, and therefore their evocative character, if perceived at all, does not affect their degree of distinctive character, which is considered average (this line of reasoning follows the Judgment of 24/04/2007, C-131/06 P, CRISTAL CASTELLBLANCH, EU:C:2007:246.P, §54)

The number ‘1852’ in the contested sign is, as argued by the opponent, likely to be seen as a year. Indeed, it constitutes frequent market practice to include in trade marks the number of a year that constitutes a relevant point in time for the goods or services it covers (e.g. the year of production of the goods, the year of creation of the company producing/offering the goods/services, etc.). Therefore, the year is of lower than average distinctive character.

Lastly, regarding the word ‘Kurant’ in the contested mark, the opponent argues that it will be perceived as a misspell of the English word ‘currant’, which is a small seedless raisin used in cooking, and therefore as descriptive of the goods in question (i.e. their flavour or ingredients). In this regard, the opponent submits a picture of a bottle containing ‘kurant’ in the label, together with pictures of similar bottles containing names of other fruits in the labels. However, the opponent´s arguments or photographs do not demonstrate that the French-speaking part of the public is aware of any meaning of the word ‘Kurant’.Since for the French-speaking part of the public the word ‘Kurant’ is perceived as a meaningless invented term, it is of average distinctive character.

According to the above, the contested mark is formed by the distinctive elements ‘Kurant Crystal’, and by the element ‘1852’, of lower than average distinctive character.

Visually, the signs coincide in the sequence of letters ‘cr-stal’ of their verbal elements ‘cristal’ and ‘crystal’, in the earlier and contested signs, respectively.

They differ in the letters ‘i’ and ‘y’ of the terms referred to above, and in the elements ‘1852’ and ‘Kurant’ in the contested mark.

The coincidences are found in distinctive elements that constitute almost the entirety of the only word forming the earlier mark, and one of the most distinctive elements in the contested mark.

According to the above, and taking into account the reduced weight that the elements with less than average distinctive character have for consumers trying to identify the commercial origin of the marks, it is considered that the marks are visually similar to a low degree.

Aurally, French-speaking consumers will pronounce ‘CRISTAL’ and ‘Crystal’ identically. The signs differ aurally in the sound of ‘1852 Kurant’.

The aurally coinciding elements ‘CRISTAL’/’Crystal’ constitute the entire earlier mark, being a distinctive element, and it is aurally entirely contained in the contested mark, as one of the most distinctive elements in it.

According to the above, and taking into account the reduced weight that the elements with less than average distinctive character have for consumers trying to identify the commercial origin of the marks, it is considered that the marks are aurally similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Both signs have the concept of ‘crystal’, and only the contested mark has the concept of a specific year, being this considered as of lower than average distinctive character.

Once again, and taking into account the reduced weight that the elements with less than average distinctive character have for consumers trying to identify the commercial origin of the marks, it is considered that the marks are conceptually similar to an average degree.

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 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

The goods are identical and are directed at the public at large. These consumers are deemed to pay an average degree of attention during the purchase of the goods involved.

The earlier mark is of average distinctive character.

The signs are visually similar to a low degree, and aurally and conceptually similar to an average degree. The earlier mark is aurally entirely contained in the contested mark.

The coincidences are found in a distinctive element that constitutes the only word forming the earlier mark, and one of the most distinctive elements in the contested mark.

It should be borne in mind that the relevant goods are beverages and, since these are frequently ordered in noisy establishments (bars, nightclubs), the phonetic similarity 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).

Furthermore, the General Court has held that, in the wines sector, consumers usually describe and recognise wine by reference to the verbal element that identifies it, particularly in bars and restaurants, where wines are ordered orally after their names have been seen on the wine list (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). Accordingly, in such cases, it may be appropriate to attach particular importance to the phonetic similarity between the signs at issue. These considerations come into play in the finding of likelihood of confusion. In this case, as indicated before, the signs are aurally similar to an average degree, and this similarity comes from the fact that the earlier mark is aurally entirely contained in the contested mark.

Account is taken of 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 average consumer of the category of goods concerned is deemed to be reasonably well-informed and reasonably observant and circumspect.

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 or services 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).

Even though there is an established legal practice according to which it is considered that consumers pay more attention to the beginning of a mark, this consideration cannot prevail in all cases and cannot, in any event, undermine the principle that an examination of the similarity of the signs must take account of the overall impression produced by those signs, since the average consumer normally perceives a sign as a whole and does not examine its individual details (27/06/2012, T‑344/09, Cosmobelleza, EU:T:2013:40, § 52).

Taking into account the circumstances described above, it is considered that the coincidences between the signs, together with the identity of the goods involved, are enough to outweigh their dissimilarities, and may induce at least part of the public to believe that the conflicting goods come from the same or economically-liked undertakings.

In addition, it is common practice in the relevant market for manufacturers to make variations to their trade marks, for example by altering the typeface or colours, or adding verbal or figurative elements, in order to denote new product lines or to endow a trade mark with a new, fashionable, image.

In the present case, although the public in the relevant territory might detect certain differences between the signs, the likelihood that it might associate the signs with each other is very real. It is highly likely that the relevant consumer will perceive the contested sign as a sub-brand, a variation of the earlier mark, configured in a different way depending on the type of goods that it designates. It is, therefore, conceivable that the relevant public will regard the goods designated by the conflicting signs as belonging to two ranges of goods coming from the same undertaking (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49)

Considering all the above, there is a likelihood of confusion on the part of the public.

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 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 Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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

Eva Inés PÉREZ SANTONJA

María del Carmen SUCH SANCHEZ

Vanessa PAGE

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.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Article 109(8) EUTMR (former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be filed within one month of the date of notification of this fixation of costs and will be deemed to have been filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.