OPPOSITION No B 2 969 254

Anheuser-Busch InBev S.A., Grand Place 1, 1000 Brussels, Belgium (opponent), represented by Bird and Bird, LLP, Avenue Louise 235, box 1, 1050 Brussels, Belgium (professional representative)

a g a i n s t

Medatlantica Europa S.L., Calle Marques de Cuba, 25-3ºD, 28014 Madrid, Spain (applicant), represented by David Peral Cerdá, Calle Mariano Benlliure, 6 — Entlo. D, 03201 Elche (Alicante), Spain (professional representative).

On 19/10/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 969 254 is upheld for all the contested services.

2. European Union trade mark application No 16 906 422 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the services of European Union trade mark application No 16 906 422 ‘STELA’. The opposition is based on, inter alia, European Union trade mark registration No 15 626 039 . 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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 15 626 039.

1. The services

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

Class 43: Services for providing food and drinks; cafes; bar services; restaurants.

The contested services are the following:

Class 43: Services for providing food and drink; temporary accommodation.

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.

Services for providing food and drink are identically contained in both lists of services (including synonyms).

The contested temporary accommodation is similar to the opponent’s services for providing food and drinks because they have the same distribution channels, end users and providers.

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 services found to be identical or similar are directed at the public at large, which has an average degree of attention.

3. The signs

	STELA
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).

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The earlier sign is a figurative trade mark composed of the verbal elements ‘STELLA’ and ‘ARTOIS’ depicted in simple black upper case letters and a less distinctive figurative element, a red star, separating the two words.

The second verbal element of the earlier sign, ‘ARTOIS’, will be associated with a region in the north of France by part of the public, such as the French public. Consequently, the Opposition Division, for reasons of procedural economy, finds it appropriate to focus the comparison of the signs on this part of the public. Accordingly, since the relevant public will associate ‘ARTOIS’ with a place’s name even if it is not well known in relation to the relevant services, it may still be understood by the public as indicating the zone of origin of the services and therefore be perceived as an element with a lower than average degree of distinctiveness.

The first verbal element, ‘STELLA’, will be seen as a fanciful term and is therefore distinctive.

The contested sign consists of the verbal element ‘STELA’, which is meaningless and therefore fanciful and distinctive for the relevant public.

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, the signs coincide in the sequence of letters ‘STEL*A’. However, they differ in the additional second letter ‘L’ of the earlier sign, placed immediately after the first letter ‘L’. They also differ in the second, weak, verbal element ‘ARTOIS’ and the red star of the earlier mark, which have no counterparts in the contested sign.

Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the verbal element ‘STEL(L)A’, since the relevant public will pronounce them identically whether there are one or two letters ‘L’. However, they differ in the pronunciation of the second, weak, verbal element of the earlier mark, ‘ARTOIS’.

Therefore, as the contested sign will be pronounced identically to the first element of the earlier mark, the signs are aurally similar to an average degree.

Conceptually, although the public in the relevant territory will understand the meaning of the element ‘ARTOIS’ of the earlier mark as explained above and will perceive the star as a laudatory element indicating the quality of the services, the other sign has no meaning for the relevant public. Since one of the signs 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 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 services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of some weak elements in the mark, 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.

In the present case, the services are identical or similar and target the public at large, whose degree of attention is average. Furthermore, the earlier mark has an average degree of distinctiveness. The signs are visually and aurally similar to an average degree and not conceptually similar. However, this lack of conceptual similarity is due merely to the presence of weak elements in the earlier mark.

There is a likelihood of confusion because the most distinctive element of the earlier sign, placed at its beginning, is almost entirely reproduced in the contested mark. Moreover, the differences between the signs are confined to weak and purely decorative elements.

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).

Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

In its observations, the applicant argues that the earlier trade mark has a low distinctive character given that many trade marks include ‘STELLA’. In support of its argument, the applicant refers to an extract from the TMview database.

The Opposition Division notes that the existence of several trade mark registrations is not per se particularly conclusive, as it does not necessarily reflect the situation in the market. In other words, on the basis of register data only, it cannot be assumed that all such trade marks have been effectively used. It follows that the evidence referred to does not demonstrate that consumers have been exposed to widespread use of, and have become accustomed to, trade marks that include ‘STELLA’. Under these circumstances, the applicant’s claims must be set aside.

The applicant 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).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In the present case, the applicant merely claims that the decisions of the Opposition Division of 20/12/2007, B 1 053 075; 20/12/2007, B 971 277; and 27/09/2012 B 1 953 234 are relevant to the extent that ‘they provide relevant doctrine relating to trade marks’. The applicant argues from these decisions that general principles concerning the overall assessment, the overall impression given by the marks, the definition of the relevant public and the degree of attention have an impact on likelihood of confusion. All these principles have been taken into account by the Opposition Division in analysing the present case. Furthermore, the previous cases referred to by the applicant are not relevant to the present proceedings, since they relate to completely different signs and different goods and services.

Considering all the above, there is a likelihood of confusion on the part of the French part of the public. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 15 626 039. It follows that the contested trade mark must be rejected for all the contested services.

As the earlier right European Union trade mark registration No 15 626 039 leads to the success of the opposition and to the rejection of the contested trade mark for all the services against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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

Zuzanna STOJKOWICZ

Paloma PERTUSA MARTÍNEZ

Birgit FILTENBORG

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.