OPPOSITION No B 2 928 599

Tovarna Olja Gea D.D., Trg svobode 3, 2310 Slovenska Bistrica, Slovenia (opponent)

a g a i n s t

Foodium Trgovina D.O.O., Milje 89, 4212 Visoko, Slovenia (applicant), represented by Peter Rondaij, Dunajska 76, 1000 Ljubljana, Slovenia (professional representative).

On 19/07/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 928 599 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As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain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from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626.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 16 544 124 ‘ORGEA’ namely against some of the goods in Class 29. The opposition is based on European Union trade mark registration No 3 440 104 (earlier trade mark 1), Slovenian trade mark registration No 200 271 536 (earlier trade mark 2), and Slovenian trade mark registration No 9 471 402 ‘GEA’ (earlier trade mark 3). 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:

Earlier trade mark 1

Class 29: Refined and unrefined edible oils, cold-pressed edible oils; edible fats, including vegetable fat; edible vegetable oils of all kinds; edible oils for baking.

Earlier trade mark 2

Class 29: Refined and unrefined edible oils; cold-pressed edible oils; edible fats, including vegetable fat, edible vegetable oils of all kinds; edible oils for baking.

Earlier trade mark 3

Class 29: Unrefined and refined edible oils; cold-pressed edible oils.

The contested goods are the following:

Class 29: Olive oil; Sunflower oil for food; oils and fats.

The term ‘including’, used in the opponent’s list of goods, indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (on the use of ‘in particular’, which has the same function as ‘including’, see a reference in 09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

The contested olive oil; sunflower oil for food are included in the broad category of the opponent’s refined and unrefined edible oils (all the earlier trade marks). Therefore, they are identical.

The contested oils include as a broader category the opponent’s cold-pressed edible oils (all the earlier trade marks). 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 fats are synonymous with edible fats, including vegetable fat (earlier trade marks 1 and 2), as the fats in Class 29 of the Nice Classification are edible goods. Therefore, the goods are considered 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. The goods may, furthermore, be subject to habitual buying behaviour. Purchase decisions of this kind are made in relation to, for example, inexpensive goods purchased on a daily basis (15/06/2010, T‑547/08, Strumpf, EU:T:2010:235, § 43).Therefore, the degree of attention when purchasing the relevant goods will vary from lower than average to average, depending on the price of the goods and the frequency of purchase.

3. The signs

(earlier trade mark 1) (earlier trade mark 2) GEA (earlier trade mark 3)	ORGEA
Earlier trade marks	Contested sign

The relevant territories are the European Union (earlier trade mark 1) and Slovenia (earlier trade marks 2 and 3).

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).

Earlier trade marks 1 and 2 are figurative signs consisting of the element ‘GEA’ depicted in slightly stylised, lower case, bold, black characters. Above that element is a stylised image of a encircled heart. Earlier trade mark 1 contains the additional verbal elements ‘Tovarna olja Gea’, placed under the element ‘GEA’ in much smallerletters. Earlier trade mark 3 is a word mark consisting of the word ‘GEA’.

The element ‘ORGEA’ of the contested sign has no particular meaning for the public in the relevant territory and is, therefore, distinctive.

The word ‘GEA’ of the earlier trade marks will be perceived as meaningless in some languages of the European Union, for instance in Danish. Conversely, this word is meaningful in other languages of the European Union, such as (i) Slovenian, where it will be perceived as meaning ‘non-living components of the earth’s surface, in a specific area’ and (ii) Italian and Spanish, in which it refers to ‘the personification of the Earth, one of the Greek primordial deities’. The element ‘GEA’ is, however, distinctive, since either it will be perceived as having no particular meaning or the meaning that will be perceived is not related to the relevant goods.

The figurative element of earlier trade marks 1 and 2 will be perceived by the relevant public as a stylised encircled heart. Bearing in mind that the relevant goods are oils and fats, this element is laudatory for the relevant goods, as it may bring to mind the healthy properties of the goods. In addition, the element ‘Tovarna olja’ will be perceived by part of the public, such as the Slovenian-speaking part of the public, as meaning ‘Oil factory’. Therefore, this element is considered non-distinctive in relation to the relevant goods, as it directly refers to the kind of products sold by the opponent. Conversely, this element is meaningless in other languages of the European Union, such as Italian and Spanish, and is, therefore, distinctive for another part of the public.

The element ‘GEA’ and the stylised encircled heart in earlier trade mark 1 are the dominant elements, as they are the most eye-catching. Conversely, earlier trade mark 2 has no element that could be considered clearly more dominant than other elements.

In the assessment of the visual and aural similarity of the marks in question it must be borne in mind that 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 and aurally, the signs coincide in the letters ‘GEA’. However, they differ in the first two letters, (and sounds) ‘OR’, of the contested sign. Furthermore, the signs differ visually in the graphical elements and stylisation of trade marks 1 and 2, and they differ visually and aurally in the verbal elements (and sounds) ‘Tovarna olja Gea’ of trade mark 1.

Therefore, taking into account the abovementioned principles and conclusions regarding the distinctive and dominant elements of the signs, the marks are similar to a low degree.

Conceptually, the public in the relevant territories will perceive the meanings of the earlier marks’ verbal and figurative elements as explained above. However, as the contested sign 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 marks

The distinctiveness of the earlier marks 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 marks are particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. In the present case, the earlier trade marks as a whole have 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 marks must be seen as normal, despite the presence of some laudatory and descriptive elements in earlier trade marks 1 and 2, as stated above in section c) of this decision.

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. Account is also 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).

In the case at issue, the goods are identical and they target the public at large whose degree of attention will vary from lower than average to average.

The signs are visually similar to a low degree due to the coinciding sequence of letters ‘GEA’. However, the differing letters ‘OR’, placed at the beginning of the contested sign, and the different lengths of the signs will be clearly noticeable to the relevant public.

In particular, it must be emphasised that the differences between the marks result, inter alia, from the beginnings of their verbal elements, which will help the relevant public to distinguish between the marks, as these parts of the marks will attract the consumer’s primary attention. In addition, it should be recalled that the length of signs may influence the effect of the differences between them. In principle, the shorter a sign, the more easily the public is able to perceive all its single elements. In the present case, ‘GEA’, which is the verbal element of earlier trade mark 2 and earlier trade mark 3 and the dominant verbal element of earlier trade mark 1, can be considered a short sign or elements, consisting of three letters, while the contested sign is composed of five letters. Therefore, given the different lengths of the signs or the verbal elements thereof, the relevant public will easily perceive the differences between them.

Moreover, the Court has held that average consumers normally perceive a mark as a whole and will not proceed with an artificial dissection of the sign except when word elements suggest a specific meaning or resemble words known to them (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57). In the present case, the similarities between the signs are limited to the sequence of letters ‘GEA’, which form the last three letters of the contested sign, ‘ORGEA’. However, the fact that the signs have some letters in common does not necessarily lead to a finding of likelihood of confusion. Confusion is particularly unlikely when the overlapping part is not perceived as an independent element in one of the marks, as in the present case, where the coinciding part, ‘GEA’, is not isolated by the use of a special character, hyphen or any other punctuation mark in the contested sign. Accordingly, the relevant public would have no reason to dissect the sign into ‘OR’ and ‘GEA’, and thus to connect the latter part with the earlier signs. It follows from the above that the differences between the signs are sufficient to enable the relevant public to safely distinguish between them.

Finally, it should be mentioned that the signs differ even further for the part of the public that perceives a meaning in the element ‘GEA’ of the earlier marks, as the same concept is not conveyed by the contested sign. This additional difference will enable consumers to clearly distinguish between the signs on a conceptual level and, consequently, help prevent them from mistakenly believing that the goods have the same origin.

The abovementioned differences are enough to outweigh the similarities between the signs, originating from the sequence of letters that they have in common. Consequently, the Opposition Division does not find it plausible to conclude that the relevant consumer, who, for the purposes of the assessment, is considered to be reasonably well informed and reasonably observant and circumspect, might believe that the goods, even though they are identical, came from the same undertaking or economically linked undertakings, even when the degree of attention is lower than average.

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

Paloma PERTUSA MARTÍNEZ

Aldo BLASI

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.