OPPOSITION No B 2 962 978

TH Passion Group, S.L., C/ L’Hort de Soriano 12, Polígono Industrial Mas del Jutge, Valencia/Torrent, Spain (opponent), represented by Antonio Eduardo Lapeña Caballero, Mossen Femades 3-14, 46002 Valencia, Spain (professional representative)

a g a i n s t

HILD Samen GmbH, Kirchenweinbergstr. 115, 71672 Marbach a.N., Germany (applicant)

On 26/07/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 962 978 is upheld for all the contested goods.

2. European Union trade mark application No 16 922 701 is rejected in its entirety.

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

PRELIMINARY REMARKS

1. As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain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from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626.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.

2. The opponent originally filed the opposition against all the goods of European Union trade mark application No 16 922 701, namely crop seeds; propagation material [seeds]; seeds for planting; seeds in pellet form; seeds coated with an antiparasitic preparation; seeds coated with a fertilizer in Class 31. However, following a limitation to the list of goods, the opposition is now directed against all the remaining goods in Class 31 of the contested European Union trade mark application No 16 922 701, namely crop seeds.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 16 922 701 ‘DELICIOUS’. The opposition is based on European Union trade mark registration No 15 186 026 . 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, inter alia, the following:

Class 31: Seeds.

The contested goods are the following:

Class 31: Crop seeds.

The contested crop seeds are included in the broad category of the opponent’s seeds. Therefore, they are 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 and at business customers with specific professional knowledge or expertise in agriculture.

The degree of attention is likely to vary from average to higher than average, as, in case of professional consumers (e.g. farmers), the quality of the seeds may have a rather significant effect on their business.

3. The signs

	DELICIOUS
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 elements ‘DELICIOUS SEEDS’ of the earlier trade mark and ‘DELICIOUS’ of the contested sign are meaningful (and may be less distinctive) in certain territories, for example in those countries where English is commonly understood. However, another part of the public in the EU, such as the Bulgarian- and Hungarian-speaking parts of the public, would fail to perceive any meaning in those signs, as they are not basic English words and the equivalents of the English words ‘delicious’ and ‘seeds’ are very different in Bulgarian and Hungarian.

The Opposition Division finds it appropriate to focus the comparison of the signs on the aforementioned public for which the signs (and all their elements) are meaningless and therefore distinctive to an average degree, resulting in the greater distinguishing power of the coinciding element and possibly a greater likelihood of confusion.

The element ‘DELICIOUS’ of the earlier sign is the dominant element as it is the most eye-catching.

Visually and aurally, the signs coincide in the element (and its sound) ‘DELICIOUS’. However, they differ in the (visually secondary) element ‘Seeds’, present only in the earlier trade mark. The signs also differ in the stylisation of the earlier mark, which, however, is not particularly striking and will be perceived as an ordinary graphical means of bringing the verbal element to the attention of the public. In particular, the stylisation of the letters is not sufficient to obscure or camouflage the letters that the earlier sign has in common with the contested sign.

Therefore, also taking into account the abovementioned principles and assertions regarding the distinctive and dominant components of the signs, they are visually highly similar and aurally similar to at least an average degree.

Conceptually, neither of the signs has a meaning for the relevant public. Since a conceptual comparison is not possible, 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 relevant public. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 8 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

For the purposes of that global appreciation, the average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. However, 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 goods are identical and they target the public at large and professionals; the degree of attention varies from average to higher than average.

The signs are visually similar to a high degree and aurally similar to at least an average degree. In particular, the dominant component of the earlier trade mark, ‘DELICIOUS’, is entirely reproduced in the contested trade mark.

Taking all the above into account, the Opposition Division considers that the differences between the signs — which result from the secondary element ‘SEEDS’ and the stylisation of the earlier trade mark — are clearly not sufficient to outweigh the visual and aural similarities between the signs in relation to identical goods. Even consumers who pay a higher than average degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

Consequently, the relevant public, when encountering the signs in relation to identical goods, is likely to think that they come from the same undertaking or from economically linked undertakings.

Considering all the above, there is a likelihood of confusion on the part of the Bulgarian- and Hungarian-speaking parts 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 15 186 026. It follows that the contested trade mark must be rejected for all the contested goods.

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

Paloma PERTUSA MARTÍNEZ

Aldo BLASI

Vita VORONECKAITE

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.