OPPOSITION No B 2 991 340

Berentzen-Gruppe Aktiengesellschaft, Ritterstr 7, 49740 Haselünne, Germany (opponent)

a g a i n s t

Jeronimo Martins Polska S.A., ul. Żniwna 5, 62-025 Kostrzyn, Poland (applicant), represented by Kancelaria Prawno-Patentowa Ryszard Skubisz, ul. Piastowska 31, 20-610 Lublin, Poland (professional representative).

On 29/07/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 991 340 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 16 888 216, (word mark ‘Polaris’), namely against all the goods in Class 32. Following a parallel opposition decision (19/12/2018, No B 2 986 530), some of those goods were refused and removed from the specification. Consequently, the present opposition is directed against the remaining goods. The opponent was duly informed and the opposition was not withdrawn. The opposition is based on European Union trade mark registration No 1 197 961, (word mark ‘Polar’). The opponent invoked Article 8(1)(b) EUTMR.

PROOF OF USE

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 the following:

Class 33: Alcoholic beverages (except beers).

The contested goods (following the aforementioned partial refusal) are the following:

Class 32: Aerated and non-aerated mineral water.

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.

The contested aerated and non-aerated mineral water are dissimilar to the opponent’s alcoholic beverages (except beer) in Class 33. Water is a liquid that is found naturally, is not refined and is aimed at satisfying basic human needs, whereas alcoholic drinks are made using a complex production process, have a stimulating effect on a person and are often consumed in the evening or at night. Moreover, these goods are not complementary. The purchase of one is not indispensable or important for the use of the other and there is no reason to assume that the purchaser of one of these types of products would be led to purchase the other as well. Furthermore, alcoholic beverages and the contested goods are not interchangeable, due to their different tastes, the consequences of their consumption and how they are normally used. It is true that all these goods can be served in bars and restaurants, usually come in bottles, and are intended for human consumption. However, these factors refer to all drinks, even the most disparate (15/02/2005, T‑296/02, Lindenhof, EU:T:2005:49, § 58), and cannot diminish the fact that the distinction between alcoholic beverages and water is of high importance, for example, for drivers, or people of certain religions or ages. On a more concrete level, they are different in nature, often serve a different purpose and do not usually compete with each other (07/12/2017, R 739/2017‑1, SUMMUM ESSENTIAL / SUMMUM (fig.), § 41). Consequently, consumers will consider it normal for aerated and non-aerated mineral water and alcoholic beverages (except beer) to come from different companies and will therefore expect this (15/02/2005, T‑296/02, Lindenhof, EU:T:2005:49, § 51).

b) Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and 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

Renata COTTRELL

Alexandra APOSTOLAKIS

Tu Nhi VAN

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.