OPPOSITION No B 3 047 756

Anarchy Brew Co. Limited, Unit 5 A & B, The Whitehouse Farm Centre, Stannington, NE61 6AW Morpeth, United Kingdom (opponent), represented by Murgitroyd & Company, Scotland House 165-169, Scotland Street, G5 8PL Glasgow, United Kingdom (professional representative)

a g a i n s t

Anarchy Drinks, 14 Rue du Vieux Faubourg, 59800 Lille, France (applicant), represented by Jean Leclercq, 12 Place Saint Hubert, 59000 Lille, France (professional representative).

On 19/03/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 047 756 is upheld for all the contested goods.

2. European Union trade mark application No 17 491 101 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods (Classes 32 and 33) of European Union trade mark application No 17 491 101 for the figurative mark  . The opposition is based on, inter alia, United Kingdom trade mark registration No 3 263 745 for the word mark ‘ANARCHY’. 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 UK trade mark registration No 3 263 745 because it is considered to be the one most similar to the contested trade mark.

a) The goods

The goods on which the opposition is based are, among others, the following:

Class 32: Beer, ale, lager, stout and porter; non-alcoholic beers; mineral and aerated waters and other non- alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

The contested goods are the following:

Class 32: Non-alcoholic beverages; non-alcoholic flavoured beverages; non-alcoholic energy beverages; non-alcoholic grape juice beverages; aloe vera drinks, non-alcoholic; cocktails, non-alcoholic; beer-based cocktails; non-alcoholic fruit extracts; non-alcoholic fruit juice beverages; juices; fruit nectars, non-alcoholic; aperitifs, non-alcoholic; mixed fruit or vegetable drinks; smoothies; isotonic drinks; protein-enriched sports beverages; syrups for beverages; table waters; mineral waters; aerated water; lemonades; soda water; beers; flavored beers; non-alcoholic beers.

Class 33: Alcoholic beverages (except beer); fruit (alcoholic beverages containing -); pre-mixed alcoholic beverages, other than beer-based; alcoholic energy drinks; distilled beverages; alcoholic fruit extracts; anisette [liqueur]; aperitifs; cider; cocktails; digestifs (liqueurs and spirits); brandy; liqueurs; perry; arak [arrack]; peppermint liqueurs; rice alcohol; sake; baijiu; spirits [beverages]; wine; vodka; whisky.

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.

Contested goods in Class 32

Non-alcoholic beverages; syrups for beverages; mineral waters; aerated water; beers are identically contained in both lists of goods (including synonyms).

The contested non-alcoholic flavoured beverages; non-alcoholic energy beverages; non-alcoholic grape juice beverages; aloe vera drinks, non-alcoholic; cocktails, non-alcoholic; non-alcoholic fruit juice beverages; juices; fruit nectars, non-alcoholic; aperitifs, non-alcoholic; mixed fruit or vegetable drinks; smoothies; isotonic drinks; protein-enriched sports beverages; table waters; lemonades; non-alcoholic beers are included in the broad category of the opponent’s other non- alcoholic drinks. Therefore, they are identical.

The contested soda water overlaps with the opponent’s aerated waters. They are identical.

The contested flavored beers are included in the broad category of the opponent’s beer. Therefore, they are identical.

The contested non-alcoholic fruit extracts refer to preparations of various drinks containing aromatic essences of fruits, by adding water or by adding them to another beverage in order to add a fruit flavour to it. These goods overlap with the opponent’s syrups and other preparations for making beverages. Therefore, they are considered to be identical.

The contested beer-based cocktails are highly similar to the opponent’s beer. These goods have the same nature and purpose. They also have the same producers, distribution channels and relevant consumers, and they are in competition with each other.

Contested goods in Class 33

The contested alcoholic beverages (except beer) are similar to beer in Class 32. Although their production processes are different, these goods all belong to the same category of alcoholic drinks intended for the general public. They can be served in restaurants and in bars and are on sale in supermarkets and grocery stores. These drinks can be found in the same section of supermarkets, although they can also be distinguished to some extent by subcategory. Beers and alcoholic beverages can be mixed and consumed together, for instance in cocktails. Furthermore, they can originate from the same undertakings.

A similar reasoning applies to the contested fruit (alcoholic beverages containing -); pre-mixed alcoholic beverages, other than beer-based; alcoholic energy drinks; distilled beverages; anisette [liqueur]; aperitifs; cider; cocktails; digestifs (liqueurs and spirits); brandy; liqueurs; perry; arak [arrack]; peppermint liqueurs; rice alcohol; sake; baijiu; spirits [beverages]; wine; vodka; whisky. These goods are similar to the opponent’s beer in Class 32. They have the same nature. They usually coincide in relevant public and distribution channels.

Finally, the contested alcoholic fruit extracts are similar to the opponent’s other preparations for making beverages. The opponent’s other preparations for making beverages in Class 32 includes goods such as non-alcoholic fruit extracts used in the preparation of beverages, whilst preparations for making alcoholic beverages would cover, among others, fruit extracts, alcoholic. Consequently, they have the same nature. They usually coincide in producer, relevant public, distribution channels and method of use.

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 found to be identical or similar to different degrees are directed at the public at large; the degree of attention is deemed to be average.

c) The signs

ANARCHY
Earlier trade mark	Contested sign

The relevant territory is the United Kingdom.

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).

Although the contested sign is a complex mark containing figurative elements, the word ‘ANARCHY’ is clearly visible to the left of the figurative element.

The shared word ‘anarchy’ will be understood as a ‘situation that nobody seems to be paying any attention to rules or laws’ (information extracted from Collins dictionary on 05/03/2019 at https://www.collinsdictionary.com/es/diccionario/ingles/anarchy). It has no relation to the goods covered by the marks; therefore, it is considered to be distinctive.

The figurative elements of the contested sign, which is a flaming skull with an anarchy symbol, have no relation to the relevant goods and are, therefore, distinctive.

The figurative element of the skull occupies a central position and dominates the visual impression created by the mark of which it forms part, because it is considerably larger than the other components. However, when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37; 19/12/2011, R 233/2011‑4, BEST TONE (FIG MARK) / BETSTONE, § 24; 13/12/2011, R 53/2011‑5, JUMBO (FIG. MARK) / DEVICE OF AN ELEPHANT (FIG. MARK), § 59).

In this case, the coincidences between the marks are found in their verbal elements.

Visually, the verbal element ‘ANARCHY’ is present in both marks, being the only verbal element in both signs. However, they differ in the contested sign’s figurative element, use of colours and the stylisation of the letters. Therefore, the signs are similar to a lower than average degree.

Aurally, both of signs are pronounced identically, as ‘anarchy’. The figurative elements of the contested sign will not be pronounced because the symbol repeats the concept of the word so that the public would not repeat ‘ANARCHY’ when referring to the sign orally. The figurative element of the skull is not subject to a phonetic assessment.

Conceptually, both marks convey the concept of anarchy which, in the contested sign, is reinforced by the anarchy symbol. Although the skull presents a conceptual difference, the marks can be seen as displaying an average degree of conceptually similarity.

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 mark as a whole has 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 mark must be seen as normal.

e) 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. It must be appreciated globally, taking into account all relevant factors 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).

The conflicting goods are identical and similar to different degrees. The signs are visually similar to a lower than average degree; aurally identical and conceptually similar to an average degree. Although differences introduced by the figurative elements in the contested sign exist, these differences are not considered sufficient to outweigh the similarities on account of the distinctive element ‘ANARCHY’.

Furthermore, the category of goods involved may increase the importance of one of the different aspects considered, when assessing the degree of similarity between the signs. It should be borne in mind that the relevant goods are beverages and, since these are frequently ordered in noisy establishments (bars, nightclubs), the phonetic similarity between the signs is particularly relevant (15/01/2003, T‑99/01, Mystery, EU:T:2003:7, § 48).

Furthermore, 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. When encountering the conflicting signs, 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 goods that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

The applicant argues that its mark “has highly distinctive characteristics and therefore enjoys greater protection than that of the UK trademarks”. In this regard, it should be pointed out that the right to an EUTM begins on the date when the EUTM is filed and not before, and from that date on the EUTM has to be examined with regard to opposition proceedings. Therefore, when considering whether or not the EUTM falls under any of the relative grounds for refusal, events or facts that happened before the filing date of the EUTM are irrelevant because the rights of the opponent, insofar as they predate the EUTM, are earlier than the applicant’s EUTM.

Considering all the above, the Opposition Division considers that the differences between the signs —in the graphic elements of the contested sign, which, as explained above in section c) of this decision, will have less impact than the word element — cannot outweigh the similarities between them. There is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s UK trade mark registration No 3 263 745. It follows that the contested trade mark must be rejected for all the contested goods.

As this earlier right leads to the success of the opposition and to the rejection of the contested trade mark for all the goods 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

Denitza STOYANOVA-VALCHANOVA

Gonzalo BILBAO TEJADA

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.