OPPOSITION No B 2 997 156

Norma Lebensmittelfilialbetrieb Stiftung & Co. KG, Heisterstr. 4, 90441 Nürnberg, Germany (opponent), represented by Betten & Resch Patent- und Rechtsanwälte PartGmbB, Maximiliansplatz 14, 80333 München, Germany (professional representative)

a g a i n s t

Jorge Ortega de la Cruz, Calle Comunidad de Madrid 49, Chalet 25, Boadilla del Monte, 28669 Madrid, Spain (applicant)

On 24/10/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 997 156 is rejected in its entirety.

2. The opponent bears the costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 116 708 for the figurative mark , namely against all the goods in Classes 8, 24, 25, 29 and 30. The opposition is based on German trade mark registration No 39 404 874 for the word mark ‘Delicia’, Austrian trade mark registration No 225 744 for the word mark ‘DELICIA’ and French trade mark registration No 3 638 441 for the word mark ‘Delicia’. 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.

a) The goods

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

German trade mark registration No 39 404 874 (earlier right 1)

Class 30: Cocoa; chocolate, pralines, also with a filling of wine or spirits, marzipan, cocoa products (except of cocoa butter and –fat), confectionery, especially sugarcoated candies and lozenges; sweetmeats, jelly confectionery, bakery products and pastries, roasted nuts coated with chocolate and sugar.

Austrian trade mark registration No 225 744 (earlier right 2)

Class 30: Cocoa; chocolate, pralines, also with a filling of wine or spirits; marzipan, cocoa products (except of cocoa butter and –fat), confectionery, especially sugarcoated candies and lozenges; sweetmeats, jelly confectionery, bakery products and pastries, roasted nuts coated with chocolate and sugar.

French trade mark registration No 3 638 441 (earlier right 3)

Class 5: Dietetic foodstuffs for medical purposes, in particular dietetic bakery products, dietetic confectionery, dietetic chocolate goods.

Class 30: Coffee, tea, cocoa, sugar (including vanilla and vanillin sugar and glucose for food), rice, tapioca, sago, artificial coffee, coffee and tea extracts; cocoa powder; non-alcoholic coffee, tea, cocoa and chocolate-based beverages including instant drinks; puddings, custard powder and blancmanges, desserts mainly consisting of starch; flour and preparations made from cereals (except animal feed); popcorn, corn flakes (for food); cereals for human consumption, in particular oat flakes or other cereal flakes, in particular being breakfast foodstuffs, including the aforesaid goods mixed with dried fruits (including nuts), sugar and/or honey; potato flour, semolina; pasta, prepared pasta meals and pasta preserves; delicatessen salads as well as frozen food, mixed, semi-prepared (including with fillings) and prepared meals, including preserved meals, mainly consisting of pasta, rice, farinacious foods and/or potato flour, including the aforesaid goods with added spices and sauces (including salad dressings) and/or combined with bread or bread rolls (for example hamburgers or sandwiches); pies, namely meat pies, pies mainly filled with meat, fish, fruit or vegetables and empty pie cases; bakery goods, bread, biscuits, cakes, pastries; sweet and/or savoury snacks mainly consisting of cereals, cocoa, cakes, chocolate, sugar, honey, potato flour and/or pastries; long life bakery goods (including with sweet or savoury fillings), in particular crispbreads, crackers and biscuits; pizzas, including preserved or frozen; chocolate; confectionery, in particular chocolate products and pralines, including confectionery with a filling of fruit, coffee, non-alcoholic drinks, wine and/or spirits, and of milk or milk products, in particular yoghurt; ices, including in the form of ice cream cakes and powder for edible ices; confectionery, in particular sweetmeats (candy) and chewing gum, not for medical purposes; marzipan; honey, invert sugar cream, fruit syrup, treacle; spreadable cocoa mixtures, spreads, mainly consisting of sugar, cocoa and/or nougat; yeast, baking powder, essences for baking (except essential oils); salt for food, mustard, pepper, vinegar, sauces (including salad dressings), powdered sauces and sauce extracts (including the aforesaid goods for salad dressings), salad dressings; mayonnaise; ketchup, spices and condiments; condiments, in particular bouillon cube based on meat and vegetable as well as spices for soups, preparations based pm bouillon in paste, vegetable extracts as additive for meat; ice.

The contested goods are the following:

Class 8: Food preparation implements, kitchen knives and cutting implements, cutlery for eating; Food preparation implements, kitchen knives and cutlery.

Class 24: Textile goods, and substitutes for textile goods.

Class 25: Headgear; Footwear; Clothing.

Class 29: Oils and fats; Meats; Processed fruits, fungi and vegetables (including nuts and pulses); Birds eggs and egg products; Prepared insects and larvae; Fish, seafood and molluscs; Dairy products and dairy substitutes; Soups and stocks, meat extracts; Sausage skins and imitations thereof.

Class 30: Sugars, natural sweeteners, sweet coatings and fillings, bee products; Coffee, teas and cocoa and substitutes therefor; Processed grains, starches, and goods made thereof, baking preparations and yeasts; Ice, ice creams, frozen yogurts and sorbets; Salts, seasonings, flavourings and condiments; Ready to eat savory snack foods made from maize meal formed by extrusion; Canned pasta foods; Extruded wheat snacks; Prepared foodstuffs in the form of sauces; Prepared savory foodstuffs made from potato flour; Snack foods made from corn; Snack foods made from wheat; Sesame snacks; Snack foods consisting principally of extruded cereals; Crisps made of cereals; Cereal snack foods flavoured with cheese; Puffed corn snacks; Cheese flavored puffed corn snacks; Tortilla snacks; Snack foods made from corn and in the form of puffs; Snack foods made from corn and in the form of rings; Snack foods made of whole wheat; Snack foods prepared from maize; Snack foods consisting principally of bread; Sweet rice with nuts and jujubes (yaksik); Stir-fried rice; Filled baguettes; Baozi [stuffed buns]; Chocolate-based ready-to-eat food bars; Pizza crust; Pizza bases; Bibimbap [rice mixed with vegetables and beef]; Sandwiches containing minced beef; Sandwiches containing fish; Sandwiches containing meat; Sandwiches containing salad; Sandwiches containing fish fillet; Filled bread rolls; Chinese steamed dumplings (shumai, cooked); Rice dumplings; Puffed cheese balls [corn snacks]; Steamed buns stuffed with minced meat (niku-manjuh); Bean jam buns; Brioches; Burritos; Rice dumplings dressed with sweet bean jam (ankoro); Shrimp dumplings; Pineapple fritters; Banana fritters; Calzones; Canapes; Chalupas; Chimichanga; Wonton chips; Tortilla chips; Chow mein [noodle-based dishes]; Chow mein; Prepared pizza meals; Boxed lunches consisting of rice, with added meat, fish or vegetables; Rice-based prepared meals; Noodle-based prepared meals; Pasta-based prepared meals; Prepared meals in the form of pizzas; Pre-packaged lunches consisting primarily of rice, and also including meat, fish or vegetables; Prepared meals containing [principally] pasta; Meals consisting primarily of rice; Meals consisting primarily of pasta; Dry and liquid ready-to-serve meals, mainly consisting of pasta; Chips [cereal products]; Crepes; Pancakes; Crumble; Meat pies [prepared]; Poultry and game meat pies; Pork pies; Frozen pastry stuffed with meat; Frozen pastry stuffed with meat and vegetables; Frozen pastry stuffed with vegetables; Egg pies; Vegetable pies; Pies [sweet or savoury]; Fresh pies; Pies containing poultry; Pies containing meat; Pies containing game; Pies containing fish; Pies containing vegetables; Pot pies; Chinese stuffed dumplings (gyoza, cooked); Pastries consisting of vegetables and meat; Pastries consisting of vegetables and poultry; Pastries consisting of vegetables and fish; Enchiladas; Rice salad; Macaroni salad; Pasta salad; Canned spaghetti in tomato sauce; Spaghetti and meatballs; Fajitas; Corn chips; Pumpkin porridge (Hobak-juk); Rice biscuits; Pellet-shaped rice crackers (arare); Stir fried rice cake [topokki]; Onion biscuits; Soft pretzels; Crackers flavoured with meat; Crackers flavoured with spices; Crackers flavoured with herbs; Crackers flavoured with cheese; Crackers flavoured with vegetables; Rice crackers; Rice crackers [senbei]; Crackers made of prepared cereals; Crackers filled with cheese; Gimbap [Korean rice dish]; Corn kernels being toasted; Hamburgers being cooked and contained in a bread roll; Cheeseburgers [sandwiches]; Hamburgers contained in bread rolls; Buckwheat jelly (Memilmuk); Jiaozi [stuffed dumplings]; Lasagne; Macaroni with cheese; Flaky pastry containing ham; Empanadas; Pre-baked pizzas crusts; Fried corn; Processed unpopped popcorn; Corn, roasted; Nachos; Okonomiyaki [Japanese savoury pancakes]; Popcorn; Flavoured popcorn; Candy coated popcorn; Caramel coated popcorn; Microwave popcorn; Caramel coated popcorn with candied nuts; Prawn crackers; Kimchi pancakes (kimchijeon); Mung bean pancakes (bindaetteok); Pasta containing stuffings; Glutinous pounded rice cake coated with bean powder (injeolmi); Korean traditional rice cake [injeolmi]; Sticky rice cakes (Chapsalttock); Meat pies; Millet cakes; Mincemeat pies; Savory pastries; Rice cakes; Flapjacks; Seaweed flavoured corn chips; Rice crisps; Vegetable flavoured corn chips; Wholewheat crisps; Grain-based chips; Hot dog sandwiches; Hot dogs (prepared); Frozen pizzas; Fresh pizza; Pizzas; Pizzas [prepared]; Preserved pizzas; Uncooked pizzas; Chilled pizzas; Rice based dishes; Prepared rice dishes; Pasta dishes; Freeze-dried dishes with main ingredient being rice; Freeze-dried dishes with main ingredient being pasta; Ready-made dishes containing pasta; Prepared meals containing [principally] rice; Dry and liquid ready-to-serve meals, mainly consisting of rice; Pretzels; Snack food products made from cereal flour; Snack food products made from rice flour; Snack food products made from soya flour; Snack food products made from cereal starch; Snack food products made from rusk flour; Snack food products made from maize flour; Snack food products made from potato flour; Snack food products consisting of cereal products; Quesadillas; Quiches; Ramen [Japanese noodle-based dish]; Ravioli [prepared]; Ravioli; Rice-based snack food; Cereal-based snack food; Risotto; Cheese curls [snacks]; Egg rolls; Spring rolls; Fresh sausage rolls; Sausage rolls; Hot sausage and ketchup in cut open bread rolls; Samosas; Sushi; Toasted cheese sandwich; Toasted cheese sandwich with ham; Sandwiches; Sandwiches containing chicken; Frankfurter sandwiches; Toasted sandwiches; Tabbouleh; Taco chips; Tacos; Stir-fried noodles with vegetables (Japchae); Tamales; Pies; Snacks manufactured from muesli; Tortillas; Chocolate-coated rice cakes; Green onion pancake [pajeon]; French toast; Wontons; Wraps [sandwich]; Cereal bars and energy bars; Sweets (candy), candy bars and chewing gum; Bread; Pastries, cakes, tarts and biscuits (cookies); Cotton candy; Foods with a cocoa base; Foodstuffs containing chocolate [as the main constituent]; Foodstuffs containing cocoa [as the main constituent]; Almonds covered in chocolate; Snack foods consisting principally of confectionery; Chocolate flavourings; Rice pudding; Confectionery items coated with chocolate; Candy; Wafered pralines; Chocolate waffles; Bars of sweet jellied bean paste (Yohkan); Chocolate coated nougat bars; Viennoiserie; Fruited scones; Jam buns; Chocolates; Liqueur chocolates; Apple fritters; Liquorice flavoured confectionery; Mint flavoured confectionery (Non-medicated -); Chocolate flavoured confectionery; Confectionery having liquid spirit fillings; Confectionery having liquid fruit fillings; Confectionery having wine fillings; Confectionery containing jelly; Sweetmeats [candy]; Chocolate; Chocolate with alcohol; Chocolate with Japanese horseradish; Imitation chocolate; Non-medicated chocolate; Chocolate for toppings; Chocolate for confectionery and bread; Aerated chocolate; Ginseng confectionery; Orange based confectionery; Flavoured sugar confectionery; Low-carbohydrate confectionery; Nut confectionery; Non-medicated flour confectionery containing chocolate; Non-medicated flour confectionery containing imitation chocolate; Non-medicated flour confectionery coated with imitation chocolate; Non-medicated flour confectionery coated with chocolate; Confectionery in frozen form; Frozen confectionery containing ice cream; Chocolate confectionery having a praline flavour; Non-medicated chocolate confectionery; Chocolate confectionery containing pralines; Non-medicated flour confectionery; Ice confectionery; Non-medicated mint confectionery; Non-medicated confectionery in jelly form; Confectionery in liquid form; Dairy confectionery; Non-medicated confectionery in the shape of eggs; Non-medicated confectionery having toffee fillings; Non-medicated confectionery having a milk flavour; Non-medicated confectionery for use as part of a calorie controlled diet; Non-medicated confectionery containing chocolate; Non-medicated confectionery containing milk; Confectionery containing jam; Chocolate bark containing ground coffee beans; Creamed rice; Custard; Cocoa based creams in the form of spreads; Chocolate creams; Chocolate spreads; Peanut brittle; Croissants; Decorations [edible] for christmas trees; Chocolate decorations for confectionery items; Chocolate decorations for cakes; Chocolate decorations for christmas trees; Turkish delight; Turkish delight coated in chocolate; Confectionery; Boiled confectionery; Frozen dairy confections; Panned sweets (Non-medicated -); Frozen confections on a stick; Korean traditional sweets and cookies [hankwa]; Frozen yogurt pies; Chocolate vermicelli; Crème caramel; Chocolate fondue; Chocolate coated fruits; Chocolate-coated nuts; Cheese-flavored biscuits; Salt crackers; Confectionery chips for baking; Salted biscuits; Crackers; Crackers flavoured with fruit; Savory biscuits; Salted wafer biscuits; Waffles; Waffles with a chocolate coating; Graham crackers; Sugar-coated coffee beans; Halvah; Potato flour confectionery; Confectionery ices; Cocoa-based ingredients for confectionery products; Floating islands; Marzipan; Chocolate marzipan; Meringues; Sweet bean jam coated with sugared-bean based soft shell [nerikiri]; Kheer mix (rice pudding); Chocolate mousses; Mousse confections; Dessert mousses [confectionery]; Custards [baked desserts]; Chocolate coated macadamia nuts; Coated nuts [confectionery]; Pandoro; Cinnamon rolls; Panettone; Edible paper; Edible rice paper; Fruit jellies [confectionery]; Biscotti dough; Sandwich spread made from chocolate and nuts; Chocolate-based spreads; Chocolate spreads containing nuts; Dried sugared cakes of rice flour (rakugan); Sweet pounded rice cakes (mochi-gashi); Cakes of sugar-bounded millet or popped rice (okoshi); Soft pin-rolled cakes of pounded rice (gyuhi); Japanese sponge cakes (kasutera); Sopapillas [fried pastries]; Pavlovas made with hazelnuts; Butterscotch chips; Poppadums; Muesli desserts; Rice-based pudding dessert; Prepared desserts [chocolate based]; Prepared desserts [confectionery]; Preparations for making of sugar confectionery; Chocolate based products; Chocolate spreads for use on bread; Vla [custard]; Almond confectionery; Peanut confectionery; Peanut butter confectionery chips; Non-medicated confectionery products; Confectionery for decorating Christmas trees; Bakery goods; Bread pudding; Puddings; Yorkshire puddings; Rice puddings containing sultanas and nutmeg; Ready-to-eat puddings; Instant dessert puddings; Semolina pudding; Marshmallow topping; Chocolate topping; Sopapillas [fried bread]; Dessert souffles; Imitation custard; Marzipan substitutes; Tablet (confectionary); Tiramisu; Fried dough twists; Truffles (rum -) [confectionery]; Truffles [confectionery]; Nougat.

An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods.

The terms ‘in particular’, ‘for example’, ‘including’, ‘also’ and ‘especially’, used in the applicant’s and the opponent’s lists of goods, indicate that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, they introduce a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

However, the term ‘namely’, used in the opponent’s list of goods to show the relationship of individual goods and services to a broader category, is exclusive and restricts the scope of protection only to the goods specifically listed.

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 include, inter alia, the nature and purpose of the goods, 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 8

The contested food preparation implements (listed twice), kitchen knives (listed twice) and cutting implements, cutlery for eating; cutlery are utensils used for eating or preparing food, while the opponent’s earlier marks cover various foodstuffs in Classes 5 and 30. The mere fact that the contested goods can be used for preparing or eating the opponent’s goods is not sufficient for a finding of similarity, because they strongly differ in their nature and purpose. Neither do they have the same methods of use nor are they in competition. Furthermore, these goods require completely different know-how in terms of production and they are therefore offered by different providers and are sold in different stores/departments of stores.

Consequently, the contested goods in Class 8 are dissimilar to all the goods covered by the earlier marks.

Contested goods in Classes 24 and 25

The contested textile goods, and substitutes for textile goods in Class 24 and headgear; footwear; clothing in Class 25 are various goods used for purposes such as decoration or for covering different parts of the human body. They differ greatly in nature, purpose and method of use from those of the opponent, namely various foodstuffs in Classes 5 and 30. Since they do not share the same purpose, they are also not in competition with each other. Furthermore, they do not coincide in their producers or distribution channels.

Therefore, the contested goods in Classes 24 and 25 are dissimilar to all the goods the opposition is based on.

Contested goods in Class 29

The contested processed fruits, fungi and vegetables (including nuts and pulses) may have the same purpose as the opponent’s sauces (including salad dressings) in Class 30 of earlier mark 3, since the former can be in the form of ‘sauces’ used to enhance the flavour of food. They can also coincide in their producers, end users and distribution channels. Furthermore, they are in competition. Therefore, they are similar to a high degree.

The opponent’s ices, including in the form of ice cream cakes and powder for edible ices include goods such as ice creams, which are frozen food, typically eaten as a snack or dessert, usually made from dairy products, such as milk and cream, and flavoured in various ways. These goods have the same nature and purpose as the contested dairy products and dairy substitutes. Furthermore, they have the same distribution channels, target the same consumers, are in competition with each other and usually originate from the same commercial undertakings. It follows that they are similar to a high degree.

The contested oils and fats are similar to the opponent’s sauces (including salad dressings) in Class 30 of earlier mark 3. They share the same purpose and method of use. Furthermore, the goods may be considered to be in competition and their distribution channels may coincide.

As regards the contested stocks, meat extracts, which may be used to add flavour when cooking, these goods have the same purpose as the opponent’s spices in Class 30 of earlier mark 3. Moreover they have the same distribution channels, target the same relevant public and are produced by the same companies. Therefore, they are similar.

The contested meats; birds eggs and egg products; prepared insects and larvae; fish, seafood and molluscs; soups; sausage skins and imitations thereof have no relevant points in common with the opponent’s goods in Classes 5 and 30. The mere fact that all the goods under comparison are foodstuffs is not sufficient to find them similar. Under the criteria of the comparison, the goods are not similar because they clearly have a different nature and method of use. Moreover, usually these goods have different commercial origins. Furthermore, they are neither complementary nor in competition. Therefore, these goods are dissimilar.

Contested goods in Class 30

All the contested goods in Class 30 are either identical or similar to the goods in Class 30 of the earlier marks on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods in Class 30 were identical to those in Class 30 of the earlier marks which, for the opponent, is the best light in which the opposition can be examined.

b) 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 assumed to be identical or found to be similar to varying degrees are directed at the public at large. The degree of attention is considered to be average.

c) The signs

Delicia 1) German trade mark registration No 39 404 874 DELICIA 2) Austrian trade mark registration No 225 744 Delicia 3) French trade mark registration No 3 638 441
Earlier trade marks	Contested sign

The relevant territory is Germany for earlier mark 1, Austria for earlier mark 2 and France for earlier mark 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).

All the earlier marks are word marks consisting of the word ‘DELICIA’. In the case of word marks, the words themselves are protected, not their written form. Therefore, it is irrelevant whether a word mark is depicted in lower or upper case or in a combination of the two.

The verbal element ‘DELICIA’ of the earlier marks has in itself no meaning. However, for the French-speaking part of the relevant public, it will clearly allude to the word ‘délice’ (‘delicious’ in English) due to this close equivalent in French. Since the relevant goods are foodstuff this association indicates their characteristics by quality, namely that the foodstuff has a very pleasant taste. Therefore, for the French-speaking part of the public, the distinctiveness of the earlier sign is weak.

As regards the public in Germany and Austria, the verbal element ‘DELICIA’ of the earlier marks has no meaning and will not evoke any associations concerning the relevant goods. Therefore, for this part of the public the distinctiveness is considered normal.

The contested sign is figurative and includes the verbal element ‘DLiZiA’ in white font put in a circular frame consisting of one outer circle and one smaller inner circle. Within these circles are, in much smaller white print, the words ‘QUALITY’ on top and ‘GOODS’ at the bottom. All of the elements are placed against the background of a horizontal black rectangular square.

The string of letters ‘DLiZiA’ will not be associated with any meaning by the French-speaking part of the relevant public and is therefore distinctive. While for the relevant public in Austria and Germany, this verbal element may be associated with the word ‘deliziös’ (‘delicious’ in English) when used on the relevant goods, as it is quite customary to use ‘deliziös’ on foodstuffs to indicate quality, namely that they have a very pleasant taste. Therefore, for part of the relevant public in Austria and Germany the verbal element ‘DLiZiA’ is considered less distinctive, as the distinctiveness mainly derives from the fanciful misspelling and the visual arrangement of the alternating lower and upper letters.

The figurative elements of the contested mark have a relatively simple configuration and will essentially be perceived as decorative elements that serve to bring the verbal element ‘DLiZiA’ to the attention of the public.

As for the verbal elements ‘QUALITY’ and ‘GOODS’, the word ‘QUALITY’ will be perceived as a descriptive indication of quality or high standard by the whole relevant public due to the close equivalents ‘qualité’ in French and ‘Qualität’ in German. On the other hand, the element ‘GOODS’ may not be understood by the French-speaking part of the public, for whom the equivalent ‘marchandise’ is too distant. For the Austrian and German part of the public ‘GOODS’ might be understood by some, and for those it will be of limited distinctiveness. While for the remaining part the word will not convey any meaning. In any case, due to their relatively small size and their subordinate position within a decorative frame around a much larger sized verbal element, the words ‘QUALITY’ and ‘GOODS’ must be considered to have reduced impact, compared to the bigger sized verbal element ‘DLiZiA’.

Considering the contested mark as a whole, it is the verbal element ‘DLiZiA’ that is the visually most outstanding element of the sign.

Visually, the earlier marks, ‘DELICIA’, are composed of seven letters while the dominant element of the contested sign ‘DLiZiA’ is composed of six letters. They share the same first letter ‘D’ and the two last letters ‘IA’/’iA’. Furthermore, the letters ‘LI’ are present in all signs, however, in different positions, namely as the third and fourth letters of the earlier marks, while they are in second and third position of the contested sign. Furthermore, the signs differ in the second letter ‘E’ in the earlier marks that has no counterpart in the contested sign. Moreover, they differ in the letter ‘C’ of the earlier marks that has the letter ‘Z’ as its counterpart in the contested sign. It must be remarked that, in the present case, the letter ‘Z’ of the contested mark is visually quite noticeable as it is represented as a capital letter while being both preceded and followed by the symmetrically arranged lower case letter ‘i'. Also, the signs differ in the figurative elements of the contested sign that have no counterpart in the earlier marks. Although the figurative elements are considered as mainly decorative, as indicated above, they cannot be totally disregarded in the overall impression conveyed by the contested sign.

The contested sign has the additional verbal elements ‘QUALITY GOODS’. However, due to the small size and the subordinate position of these elements, as explained above, they will most likely have limited impact on the visual comparison of the signs.

Taking all of the above into account, the signs are considered visually similar to a low degree.

Aurally, it must be taken into account that the verbal elements ‘QUALITY GOODS’ of the contested sign are not likely to be pronounced due to their small size and secondary position within the mark (03/07/2013, T‑206/12, LIBERTE american blend, EU:T:2013:342 and 03/06/2015, joined cases T‑544/12, PENSA PHARMA, EU:T:2015:355 and T‑546/12, pensa, EU:T:2015:355). Furthermore, the figurative elements of the contested sign have no impact on its pronunciation.

The verbal element of the earlier marks ‘DELICIA’ is pronounced ‘DE/LI/SI/A’. On the other hand, the element ‘DLiZiA’ of the contested sign will aurally, compared to the earlier marks be shorter due to a missing vowel at its beginning and it will be pronounced as either ‘DLI/ZI/A’, or also by part of the German public as ‘DLI/TSI/A’. Although the signs have some coinciding sounds due to several concurring letters and their corresponding sounds, it should be noted that the vowel ‘E’ in the beginning of the earlier marks generates a distinct difference in their beginnings. In addition, the difference of the sound of letters ‘C’ and ‘Z’ cannot be considered as unnoticeable.

Therefore, the signs are considered as aurally similar to an above average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks.

From the perspective of the French-speaking part of the public the earlier mark 3 will be associated with the annotation of something with a very pleasant taste. As regards the relevant public in Austria and Germany, the earlier marks 1 and 2 are meaningless, while the contested sign evokes an association to ‘deliziös’.

Therefore, 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.

d) 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 marks as a whole have no meaning for any of the goods in question from the perspective of the relevant public in Austria and Germany in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

However, for the French-speaking part of the public, considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as low for all of the goods, taking into account that they all relate to foodstuffs.

e) Global assessment, other arguments and conclusion

According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 29). The likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (29/09/1998, C‑39/97, Canon, § 16, EU:C:1998:442, § 29).

In the present case, the signs are visually similar to a low degree and aurally similar to an above average degree. Conceptually, they signs are not similar.

The goods at issue are considered as partly identical, partly similar to varying degrees and partly dissimilar. The relevant public consists of the public at large, where the degree of attention is assumed to be average. The earlier marks enjoys an overall average degree of inherent distinctiveness from the perspective of the relevant public in Austria and Germany, while for the French-speaking part of the public the distinctiveness of the earlier mark is considered low.

As regards the dissimilar goods, as similarity of goods is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

The Court has stated that, when evaluating the importance attached to the degree of visual, aural and conceptual similarity between the signs, it is appropriate to take into account the category of goods or services in question and the way they are marketed (22/09/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 27).

The goods that are considered identical or similar to varying degrees are various foodstuffs in Classes 29 and 30. The goods themselves are fairly ordinary consumer products that are commonly purchased in supermarkets or establishments where goods are arranged on shelves and consumers are guided by the visual impact of the mark they are looking for (15/04/2010, T-488/07, Egléfruit, EU:T:2010:145, §§ 53-54).

In relation to these goods, even taking into account that some of the goods are identical or similar to a high degree, the similarities between the marks are not sufficient to lead to a likelihood of confusion on the part of the public, even for the Austrian and German part of the public for whom the earlier marks enjoy an average degree of inherent distinctiveness. For this part of the public the misspelling and the fanciful arrangement of the letters in the element where the similarities lie in the contested sign will not go unnoticed and will be memorised.

From the perspective of the relevant consumer, taking into account the increased importance of the visual impact for the relevant goods as mentioned above, the visual differences between the signs in the present case will clearly be perceivable at the moment of purchase and they are sufficient to exclude any likelihood of confusion between the signs.

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. In the present case, the applicant did not appoint a professional representative within the meaning of Article 120 EUTMR and therefore did not incur representation costs.

The Opposition Division

Denitza STOYANOVA-VALCHANOVA

Tu Nhi VAN

Martin EBERL

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.