OPPOSITION No B 3 049 664

France Boissons, 2, rue des Martinets, 92500 Rueil-Malmaison, France (opponent), represented by Casalonga Alicante, S.L., Avenida Maisonnave, 41-6C, 03003 Alicante, Spain (professional representative)

a g a i n s t

Marvanejo - Gestão de Investimentos S.A., Rossio do Meio Rua Principal à Fonte Nova, 7350-205 Elvas, Portugal (applicant), represented by A.G. DA Cunha Ferreira LDA., Avenida 5 de Outubro, 146-7º, 1050-061 Lisboa, Portugal (professional representative).

On 21/06/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 049 664 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against some of the goods (Class 33) of European Union trade mark application No 17 650 722 for the word mark ‘QUINTA DA AMADA’. The opposition is based on French trade mark registration No 4 171 409 for the word mark ‘LES AMADOUS’. 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 the following:

Class 33: Alcoholic beverages (except beers); wines.

The contested goods are the following:

Class 33: Wine.

The contested wine is identically contained in the opponent’s list of goods, despite being in the plural form.

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.

The goods at issue are aimed at the public at large (27/06/2013, T-89/12, R, EU:T:2013:335, § 44). The average consumer of the category of products concerned is deemed to be reasonably well-informed and reasonably observant and circumspect (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 17-26). Therefore, in relation to these goods, the level of attention paid by the relevant public will be normal.

3. The signs

LES AMADOUS	QUINTA DA AMADA
Earlier trade mark	Contested sign

The relevant territory is France.

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).

Firstly, the earlier mark, insofar as it would be understood by the relevant public, would be seen as small pieces of something dry, especially wood or grass, that burns easily and can be used for lighting a fire, in English ‘tinder’. This word has no clear meaning in relation to wine and is, therefore, distinctive. The term ‘LES’, however, it is an article and does not add any additional distinctiveness to the mark as it only has an auxiliary role in relation to the following noun.

Secondly, the contested sign has no meaning. However, as the opponent claims that the element ‘QUINTA’ will be understood by the French consumers being of limited distinctiveness. However, in the Opposition Division’s opinion the contested sign has no meaning at all; the French consumer will not understand these Portuguese words as claimed by the opponent. Consequently, the opponent’s argument must be set aside. This element has no direct relation to these goods, it is therefore, distinctive. The element ‘DA AMADA’ is also meaningless and is, therefore, distinctive.

Visually and aurally, the signs coincide in the letters ‘AMAD-’. However, they differ in all of the remaining elements, namely, ‘LES’ and ‘-OUS’ in the earlier mark, versus ‘QUINTA DA’ and ‘-A’ in the contested sign.

Owing to the very different number of letters contained in each sign, they greatly differ in length and structure and hence, aurally, in rhythm and intonation, contrary to the opponent’s argument.

Considering that the signs merely coincide in an element which, moreover, is short (in comparison to most of the other elements) and placed in a different position in each of the signs, and taking into account that the consumer focus at the beginning of the signs generally, they are visually and aurally similar, at best, only to a low degree.

Conceptually, even if the public in the relevant territory perceives the meaning of the earlier mark, as explained above, the other sign has no meaning in that territory. 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 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.

5. Global assessment, other arguments and conclusion

The likelihood of confusion is constituted by the risk that the relevant 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. The appreciation of the likelihood of confusion on the part of the public depends on numerous elements, including the association which can be made with the registered trade mark, the degree of similarity between the trade mark and the sign and between the goods and services identified: it must be appreciated globally, taking into account all factors relevant to the circumstances of the case (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 16 and 29; 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 17-18).

As previously stated, the signs coincide visually and aurally in ‘AMAD-’, creating only at best a low degree of similarity and there is no conceptual similarity.

It must be noted, however, that the marks differ in all of their remaining aspects which represent relevant elements of difference, as noted above. Particularly, the coincidence of the said letters does not, in any event, cast doubt on the principle that the assessment of the similarity of marks must take account of the overall impression created by those marks, since the average consumer normally perceives a trade mark as a whole and does not proceed to analyse its various details (16/05/2007, T-158/05, Alltrek, EU:T:2007:143, § 70; 08/09/2010, T-369/09, Porto Alegre, EU:T:2010:362, § 29).

In the present case, moreover, the beginnings of the signs differ. In addition, the contested sign has a different structure and length than the earlier mark. Moreover, considering that said common letters are placed in a different position in each of the signs, the Opposition Division considers that a likelihood of confusion between these marks can be safely excluded. 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, 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

Tu Nhi VAN

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.