OPPOSITION No B 3 052 342

Elais-Unilever Hellas S.A., 8 Chimaras Str, 15125, Marousi Attikis, Greece (opponent), represented by Stobbs, Building 1000, Cambridge Research Park, CB25 9PD Cambridge, United Kingdom (professional representative)

a g a i n s t

Emirhan Yegin, Hum Holscherain 23, 57334 Bad Laasphe, Germany (applicant).

On 14/03/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 052 342 is partially upheld, namely for the following contested goods:

Class 30: Spices; spice extracts; alimentary seasonings; dry seasonings; spice rubs; spices in the form of powders; seasoning mixes; sauces; dressings for salad.

2. European Union trade mark application No 17 771 015 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 771 015 . The opposition is based on the following earlier rights:

• Greek trade mark registration No N 229 061 for the word mark ‘ALTIS SODEIA’.

• Greek trade mark registration No N 229 062 for the word mark ‘ΑΛΤΙΣ σοδειά’.

The opponent invoked Article 8(1)(b) and Article 8(5) EUTMR in relation to both earlier marks.

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 Greek trade mark registration No N 229 061 for the word mark ‘ALTIS SODEIA’.

1. The goods

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

Class 29: Edible oils and fats; olive paste; olive products.

After a limitation carried out on 09/06/2018, the contested goods are the following:

Class 29: Dried pulses; processed pulses; canned pulses; snack foods based on legumes; salted nuts (fruits); preserved nuts; preserved nuts; roasted nuts; shelled nuts; edible nuts; spiced nuts; nuts being cooked; dried nuts; dried nuts; processed nuts; ground nuts; prepared nuts; cashew nuts (prepared-); salted cashews; ground almonds; dried; fish in olive oil; for food; drinking yogurts.

Class 30: Spices; spice extracts; alimentary seasonings; dry seasonings; spice rubs; spices in the form of powders; seasoning mixes; bulgur; tea; cocoa; cocoa-based beverages; cocoa powder; sugared almonds; almond pastries; sauces; dressings for salad.

Class 32: Non-alcoholic beverages; waters [beverages].

The contested sauces; dressings for salad in Class 30 are similar to the opponent’s edible oils and fats, since they can coincide in purpose and method of use; be in competition; and target the same consumers.

The contested spices; spice extracts; alimentary seasonings; dry seasonings; spice rubs; spices in the form of powders; seasoning mixes in Class 30 are similar to a low degree to the opponent’s edible oils and fats, since they can coincide in purpose and can target the same consumers.

The rest of the contested goods in Classes 29, 30 and 32 are all dissimilar to the opponent’s goods, since they differ in nature, purpose, method of use, distribution channels and points of sale. They are neither complementary nor in competition, do not target the same consumers, and are not likely to come from the same kind of undertakings.

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 assumed to be identical are directed at the public at large. The degree of attention will in this case vary from average to low. A low degree of attention will be paid in relation to goods that are frequently purchased and are low-priced.

3. The signs

ALTIS SODEIA
Earlier trade mark	Contested sign

The relevant territory is Greece.

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 differing word ‘SODEIA’ in the earlier mark is the transliteration into the Latin alphabet of the Greek term ‘σοδειά’, which means ‘crop’. Greek consumers are accustomed to reading Greek terms transliterated into the Latin alphabet and will therefore understand ‘SODEIA’ as having the meaning described above. It is void of distinctive character as it is a reference to the characteristics of the goods involved (i.e. where they are obtained from)

The rest of the verbal elements making up the marks, along with the green figurative element in the contested mark, are meaningless and of average distinctive character (e.g. the sentence ‘KALITELI ÜRÜN. KALITELI DAĞITIM’ is in Turkish).

The word ‘ALTAY’ and the green figurative element constitute the co-dominant (eye-catching) elements of the contested mark. The sentence ‘KALITELI ÜRÜN. KALITELI DAĞITIM’ has less visual impact, due to its significantly smaller size and lighter typeface.

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). Therefore, the word ‘ALTAY’ is considered to have greater impact than the green figurative element next to it, despite the fact that they are co-dominant and of average distinctive character.

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 and from top to bottom, which makes the part placed at the left/top of the sign (the initial part) the one that first catches the attention of the reader. It is therefore relevant to note that the coincidences between the marks (see detailed comparison below) are found in the first elements read and pronounced in both marks.

Visually, the signs coincide in ‘ALT’, namely the beginning of the first word read and pronounced in both marks. The coincidences referred to are found in the only distinctive element in the earlier mark ‘ALTIS’ and in ‘ALTAY’, which is the element of greater impact in the contested sign, for the reasons explained above.

The signs differ in the endings ‘-IS’ and ‘-AY’ of the words ‘ALTIS’ and ‘ALTAY’, respectively; in the non-distinctive word ‘SODEIA’; in the sentence ‘KALITELI ÜRÜN. KALITELI DAĞITIM’; and in the green figurative element of the contested sign. All of these elements are of reduced impact, for the reasons explained above.

Taking into account the impact of each of the elements forming the signs, it is considered that the marks are visually similar to an average degree.

Aurally, the letters ‘I’ and ‘Y’ will be pronounced identically by the relevant public. Therefore, the pronunciation of the signs coincides in the sound of the letters ‘ALT*I/Y’ of the words ‘ALTIS’ and ‘ALTAY’.

The signs differ aurally in the sound of letter ‘S’ of ‘ALTIS’ and of the second ‘A’ of ‘ALTAY’. They also differ in the sound of ‘SODEIA’ and in the sentence ‘KALITELI ÜRÜN. KALITELI DAĞITIM’. Since these differing words are of reduced impact for the reasons explained above, it is likely that at least part of the public will omit them when referring to the marks aurally.

For the part of the public that pronounces the marks in their entirety, taking into account the degree of distinctiveness of each of their elements, as well as their impact within the signs, it is considered that the marks are aurally similar to an average degree. For the part of the public that pronounces only ‘ALTIS’ and ‘ALTAY’, it is considered that the marks are aurally similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. The only element in the earlier mark that has a concept is void of distinctive character. However, it is still perceived within the signs, and cannot be ignored. The contested sign has no meaning in the relevant 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 opponent claimed that the earlier trade mark enjoys enhanced distinctiveness (i.e. the earlier mark was claimed to be reputed, and Article 8(5) was invoked) but did not file any evidence in order to prove such a claim.

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, despite the presence of a non‑distinctive element in the mark, as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The goods compared are partly similar to varying degrees and partly dissimilar. They are directed at the public at large, and the degree of attention paid during their purchase will vary from average to low.

The signs are visually similar to an average degree, aurally similar to an average or high degree (depending on the consumer’s pronunciation), and conceptually dissimilar.

The earlier mark is of average distinctive character.

As explained above, the coincidences between the marks are found in the only distinctive element of the earlier mark, ‘ALTIS’, and the element with most impact in the contested mark, ‘ALTAY’. The differences between the marks are found in verbal and figurative elements considered to have reduced impact.

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). It is therefore relevant to note that the signs are visually similar to an average degree.

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).

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

In this case, it is considered that the coincidences between the marks, together with the similarity (even if only to a low degree) of part of the goods involved, are sufficient to counteract their differences in relation to those goods.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public, and therefore the opposition is partly well founded on the basis of the opponent’s Greek trade mark registration No N 229 061.

It follows from the above that the contested trade mark must be rejected for the goods found to be similar (to varying degrees) to those of the earlier trade mark. The opposition is also successful with regard to goods that are similar to a low degree, since the coincidences between the marks are sufficient to outweigh the low degree of similarity of the goods. For the part of the public paying a low degree of attention, the risk of likelihood of confusion increases.

The rest of the contested goods are dissimilar. As similarity of goods and services 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 opponent has also based its opposition on the Greek trade mark registration
No N 229 062 for the word mark ‘ΑΛΤΙΣ σοδειά’. Since this mark covers the same scope of goods as the earlier mark in relation to which the comparison above has been carried out, the outcome cannot be different with respect to the goods for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods.

REPUTATION — ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

According to Article 95(1) EUTMR, in proceedings before it the Office will examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office will be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.

It follows that the Office cannot take into account any alleged rights for which the opponent does not submit appropriate evidence.

According to Article 7(1) EUTMDR, the Office will give the opposing party the opportunity to present the facts, evidence and arguments in support of its opposition or to complete any facts, evidence or arguments that have already been submitted together with the notice of opposition, within a time limit specified by the Office. According to Article 7(2)(f) EUTMDR, when the opposition is based on a mark with reputation within the meaning of Article 8(5) EUTMR, the opposing party must provide evidence showing, inter alia, that the mark has a reputation, as well as evidence or arguments showing that use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

In the present case, the notice of opposition was not accompanied by any evidence of the alleged reputation of the earlier trade mark.

On 31/05/2018 the opponent was given two months, commencing after the end of the cooling-off period, to submit the abovementioned material. This time limit expired on 05/10/2018. However, the opponent did not submit any evidence concerning the reputation of the trade mark on which the opposition is based.

Given that one of the necessary requirements of Article 8(5) EUTMR is not met, the opposition must be rejected as unfounded insofar as these grounds are concerned.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

María Clara IBÁÑEZ FIORILLO

María del Carmen SUCH SANCHEZ

Marcel DOLIESLAGER

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.