OPPOSITION No B 2 932 609

Eckes-Granini International GmbH, Ludwig-Eckes-Platz 1, Nieder-Olm, Germany (opponent), represented by Heinrich Prinz Reuss, Ludwig-Eckes-Platz 1, 55268 Nieder-Olm, Germany (employee representative)

a g a i n s t

Siovann S.L., Av. Diagonal 468, 8º 1ª, 08006 Barcelona, Spain (applicant), represented by ABG Patentes S.L., Avenida de Burgos, 16D, 4ª planta, Edificio Euromor, 28036 Madrid, Spain (professional representative).

On 11/07/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 932 609 is rejected in its entirety.

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

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As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain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. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. 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 some of the goods of European Union trade mark application No 16 495 211 ‘SIOVANN’ (word mark), namely against all the goods in Classes 32 and 33. The opposition is based on international trade mark registration No 1 016 650 designating the European Union for the word mark ‘SIÓ’. 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 32: Beers; mineral water and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

The contested goods are the following:

Class 32 Non-alcoholic beverages; beer; mineral waters and other non-alcoholic drinks; fruit beverages and fruit juices; syrups and other preparations for making beverages.

Class 33 Alcoholic beverages (except beer).

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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

Beer; mineral waters and other non-alcoholic drinks; fruit juices; syrups and other preparations for making beverages are identically contained in both lists of goods. The fact that beer and waters are used in different countable forms of the nouns in the opponent’s list does not affect their meaning and scope of protection.

The contested non-alcoholic beverages and the opponent’s non-alcoholic drinks are synonymous, and therefore they are identical.

The contested fruit beverages and the opponent’s fruit drinks are synonymous, and therefore they are identical.

Contested goods in Class 33

The opponent’s non-alcoholic drinks in Class 32, on the one hand, and the contested alcoholic beverages (except beer) in Class 33 on the other, are often sold side by side, both in shops and bars and on drinks menus. These goods target the same public and may be in competition. Therefore, they are similar to a low degree.

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 a low degree are directed at the public at large. The degree of attention is considered to be average.

3. The signs

SIÓ	SIOVANN
Earlier trade mark	Contested sign

The relevant territory is the European Union.

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).

Each of the signs under comparison comprises a single element, namely ‘SIÓ’ in the earlier mark and ‘SIOVANN’ in the contested sign.

The earlier mark, ‘SIÓ’, has a meaning for part of the relevant public, namely the Hungarian-speaking part, for which ‘SIÓ’ will be perceived as the name of an artificial channel in central Hungary, which is the outlet of Lake Balaton. For the remaining part of the relevant public, the word lacks any particular meaning.

The opponent claims that ‘SIOVANN’ is a ‘popular Spanish name’. However, it did not submit any evidence to support that claim. Therefore, the opponent’s claim has to be set aside.

The element ‘SIOVANN’ of the contested sign has no particular meaning for the public in the relevant territory. It is also unlikely that the public that perceives a meaning in ‘SIÓ’, as specified above, would dissect the contested sign (into ‘SIO’ and ‘VANN’), to perceive such a meaning, because the sequence of letters ‘VANN’ does not have any particular meaning for that part of the public.

The opponent further claims that the ‘word element “SIÓ” is the clearly dominating element of “SIOVANN” ’. Contrary to what the opponent claims, the element ‘SIOVANN’ has no component that could be considered more dominant (visually eye-catching) than other components. The sign is a word mark and, in the case of word marks, it is the word as such that is protected and not its written form. Therefore, the sign has no component that is visually dominant. Consequently, the opponent’s argument has to be set aside.

The element ‘SIOVANN’ of the contested sign has no meaning for the public in the relevant territory and therefore is distinctive. Either the element ‘SIÓ’ of the earlier sign has no meaning for part of the public or the meaning conveyed by it has no relation to the relevant goods (which are beverages and preparations therefor). Therefore, it is considered distinctive.

Visually, the signs coincide in the sequence of letters ‘SIO’, which constitute the earlier mark and the first three letters of the contested sign. However, they differ in the accent on the letter ‘O’ in the earlier sign and also in the letters ‘VANN’ of the contested sign, which have no counterpart in the earlier mark. Furthermore, the earlier mark consists of three letters, while the contested sign consists of seven letters. Bearing in mind their significant difference in length and their differing letters, the signs are visually similar only to a low degree.

Aurally, for part of the public, the pronunciations of the signs coincide in the sound of the sequence ‘SIO’, which constitutes the earlier mark and the first three letters of the contested sign. Part of the public, such as the Hungarian-speaking part, would pronounce the accented ‘Ó’ of the earlier mark with a longer sound than the ordinary ‘O’ of the contested sign.

Furthermore, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs differs in the sound of the letters ‘VANN’ of the contested sign, which have no counterpart in the earlier mark. Furthermore, the additional phonemes render the pronunciation of the contested sign considerably longer than that of the earlier mark. The signs do not comprise the same number of syllables, namely ‘SI-O’ in the earlier mark and ‘SI-O-VANN’ or ‘SI-OV-ANN’ in the contested sign. It follows that the signs have different rhythms and intonations.

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

Conceptually, although part of the public in the relevant territory (the Hungarian-speaking part), will perceive a meaning in the earlier sign, as explained above, the other sign has no particular meaning for that part of the public. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar for that part of the relevant public.

For the remaining part of the public in the relevant territory, neither of the signs has a meaning. Since a conceptual comparison is not possible, for that part of the public, the conceptual aspect does not influence the assessment of the similarity of the signs.

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

The contested goods are identical or similar to a low degree to the opponent’s goods.

The distinctiveness of the earlier mark is average. The marks under comparison are visually and aurally similar to the extent that they coincide in the letter sequence ‘SIO’, as already explained above.

However, this similarity is not sufficient for a finding of likelihood of confusion, as there are considerable visual and aural differences between the signs. It must be noted that ‘assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole’ (12/06/2007, C‑334/05 P, Limoncello, EU:C:2007:333, § 41).

The signs are visually and aurally similar to a low degree, due to the letters and sounds they have in common, as specified above. However, their differences lie in the additional letters and sounds of the contested sign, the different number of syllables between the signs, as well as the accent in the earlier mark (which will also change the pronunciation for part of the relevant public). The fact that the letters constituting the earlier mark are placed at the beginning of the contested sign is not sufficient to counteract the significant differences between the signs, which will be clearly perceptible to the relevant public.

Moreover, the marks are not conceptually similar. Even the part of the public that will recognise a concept in the earlier mark would not dissect the contested sign to derive the verbal element of the earlier mark, as the remaining sequence of letters in the contested sign would be meaningless.

The abovementioned differences are sufficient to outweigh the similarities between the signs. The Opposition Division, therefore, does not find it plausible to conclude that the relevant consumer, who, for the purposes of the assessment, is considered reasonably well informed and reasonably observant and circumspect, might believe that the goods, found to be identical or similar to a low degree, come from the same undertaking or economically linked undertakings.

Considering all the above, there is no likelihood of confusion on the part of the public.

Therefore, the opposition must be rejected.

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

Judit NÉMETH

Maria SLAVOVA

Irina SOTIROVA

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.