OPPOSITION No B 3 065 780

Arla Foods amba, Sønderhøj 14, 8260 Viby J, Denmark (opponent), represented by Zacco Denmark A/S, Arne Jacobsens Allé 15, 2300 Copenhagen S, Denmark (professional representative)

a g a i n s t

Маклер Комерс Еоод, р-н Възраждане, бул. "Акад. Иван Гешов" №2 Е (в сградата на бизнес център Сердика), ап.109, 1379 София, Bulgaria (applicant), represented by Rositsa Stoyanova, str. "Rodopski izvor" block 233 office 2, ground floor, 1680 Sofia, Bulgaria (professional representative).

On 31/07/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 065 780 is upheld for all the contested goods.

2. European Union trade mark application No 17 911 606 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 of European Union trade mark application No 17 911 606 for the word mark ‘ALA Food’. The opposition is based on, inter alia, European Union trade mark registration No 1 520 899 for the word mark ‘ARLA’. 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, inter alia, the following:

Class 29: Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces; eggs, milk and milk products; edible oils and fats; proteins for human consumption, casein and caseinates for human consumption; rennet, cheese powder, substitutes for milk and cream, milk and cream in powder form.

Class 30: Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice, salad dressings; meat pies and meat pâtés (not included in other classes), pizzas, puddings, soufflés, mousses, milk based dessert mousses, rice pudding and edible ices, powders and preparations for making cappuccino, cocoa, chocolate, coffee and tea beverages; beverages based on chocolate, cocoa and coffee.

The contested goods are the following:

Class 29: Sausage skins and imitations thereof; Dairy products and dairy substitutes; Processed fruits, fungi and vegetables (including nuts and pulses); Birds eggs and egg products; Fish, seafood and molluscs; Soups and stocks, meat extracts; Edible oils and fats; Meat; Preserved meat; Meat being roasted; Meat spreads; Meat-based mousses; Frozen meals consisting mainly of chicken; Prepared dishes consisting principally of meat; Fritters; Frozen appetizers consisting primarily of chicken; Ready cooked meals consisting wholly or substantially wholly of meat; Scotch eggs; Oils for food; Foods made from fish; Powdered milk for food purposes; Weed extracts for food; Edible oils for use in cooking foodstuffs; Stock [prepared]; Peanuts, prepared; Prepared fruits; Seeds, prepared; Prepared vegetable products; Drinks made from dairy products; Prepared vegetable dishes; Desserts made from milk products; Prepared meals containing [principally] eggs; Prepared meals containing [principally] bacon; Prepared meals containing [principally] chicken; Prepared meals made from meat [meat predominating]; Prepared meals consisting principally of vegetables; Frozen prepared meals consisting principally of vegetables; Frozen french fries; Frozen vegetables; Frozen fish; Frozen meat; Frozen chicken; Frozen meat products; Fish products being frozen; Frozen french fries; Deep frozen chicken; Frozen cooked fish; Frozen sweet corn; Frozen seafood; Frozen poultry; Quick-frozen vegetable dishes; Frozen shellfish; Frozen meals consisting primarily of fish; Frozen meals consisting primarily of meat; Frozen appetizers consisting primarily of seafood; Frozen pre-packaged entrees consisting primarily of seafood; Frozen meals consisting primarily of poultry; Fruit paste; Meat spreads; Olive paste; Pressed fruit paste; Cheese; Fruit desserts; Chilled dairy desserts; Dairy puddings; Yoghurt desserts; Nut-based food bars; Roasted nuts; Coconut, desiccated; Shelled nuts; Preserved nuts; Spiced nuts; Prepared nuts.

Class 30: Sandwiches containing meat; Sauces for barbecued meat; Filled yeast dough with fillings consisting of meat; Frozen pastry stuffed with meat; Pelmeni [dumplings stuffed with meat]; Pastries consisting of vegetables and meat; Frozen pastry stuffed with meat and vegetables; Boxed lunches consisting of rice, with added meat, fish or vegetables; Pre-packaged lunches consisting primarily of rice, and also including meat, fish or vegetables; Alimentary seasonings; Extruded food products made of maize; Food preparations based on grains; Foodstuffs made from dough; Extruded food products made of wheat; Extruded food products made of rice; Ferments for pastes; Flour concentrate for food; Foodstuffs made of rice; Salt for preserving foodstuffs; Tapioca flour; Granola-based snack bars; Foods with a cocoa base; Prepared foodstuffs in the form of sauces; Foodstuffs made of sugar for making a dessert; Foodstuffs containing chocolate [as the main constituent]; Foodstuffs made of sugar for sweetening desserts; Foodstuffs containing cocoa [as the main constituent]; Cereal-based snack food; Foodstuffs made of a sweetener for making a dessert; Gruel, with a milk base, for food; Food mixtures consisting of cereal flakes and dried fruits; Organic thickening agents for cooking foodstuffs; Chocolate-based ready-to-eat food bars; Thickening agents for cooking foodstuffs; Prepared savory foodstuffs made from potato flour; Food condiment consisting primarily of ketchup and salsa; Essences for use in food preparation [other than essential oils]; Extracts of coffee for use as flavours in foodstuffs; Foodstuffs made of a sweetener for sweetening desserts; Cereal based foodstuffs for human consumption; Essences for foodstuffs, except etheric essences and essential oils; Extracts of cocoa for use as flavours in foodstuffs; Edible essences for foodstuffs [other than etheric substances and essential oils]; Ravioli [prepared]; Pizzas [prepared]; Meat pies [prepared]; Snack foods made from corn; Ready-made baking mixtures; Hamburgers contained in bread rolls; Bonbons made of sugar; Snack foods prepared from maize; Snack foods made from wheat; Snack food products made from potato flour; Hamburgers contained in bread rolls; Foods produced from baked cereals; Snack foods made of whole wheat; Cereal-based snack food; Crisps made of cereals; Cereals prepared for consumption by humans; Snack food products made from cereal flour; Frozen dough; Frozen lollipops; Frozen pizzas; Frozen prepared rice; Frozen custards; Confectionery in frozen form; Frozen cookie dough; Iced fruit cakes; Iced sponge cakes; Frozen yoghurt [confectionery ices]; Ice [frozen water]; Ice milk [ice cream]; Confectionery in frozen form; Frozen dairy confections; Frozen confectionery containing ice cream; Deep frozen pasta; Frozen pastry sheets; Frozen biscotti dough; Frozen yogurt confections; Frozen confections on a stick; Iced confectionery (Non-medicated -); Frozen yogurt pies; Frozen yogurt cakes; Ice, ice creams, frozen yogurts and sorbets; Frozen pastry stuffed with vegetables; Mixtures for making water ices; Frozen yoghurt [confectionery ices]; Mixtures for making frozen confections; Frozen prepared rice with seasonings and vegetables; Frozen meals consisting primarily of rice; Frozen meals consisting primarily of pasta; Fruit flavoured water ices in the form of lollipops; Ice cream; Non-dairy ice cream; Ice cream; Ice cream mixes; Ice-cream cakes; Ice cream gateaux; Ice cream desserts; Sauces for ice cream; Ice cream with fruit; Powders for ice cream; Cones for ice cream; Ice cream drinks; Ice cream substitute; Ice cream confectionery; Yoghurt based ice cream [ice cream predominating]; Ice cream stick bars; Powders for ice cream; Flavored ices; Ice cream cone mixes; Sorbets [water ices]; Mixtures for making ice cream confections; Dough; Pastry dough; Puff pastry; Dough mix; Pizza dough; Cake doughs; Dough flour; Batter mixes; Fried dough twists; Alimentary paste [dough]; Pasta in the form of sheets; Pasta shells; Macaroni [uncooked]; Wholemeal pasta; Dried pasta; Dried pasta; Pasta containing stuffings; English muffins; Frozen pastries; Filo doughs; Fried dough cookies; Tart shells; Filo pastry; Ready-to-bake dough products; Ready-made dishes containing pasta; Filled yeast dough with fillings consisting of vegetables; Filled yeast dough with fillings consisting of fruits; Processed grains, starches, and goods made thereof, baking preparations and yeasts; Snack foods consisting principally of pasta; Pasta-based prepared meals; Mayonnaise-based spreads; Cereals for use in making pasta; Meals consisting primarily of pasta; Sandwich spread made from chocolate and nuts; Mayonnaise and ketchup-based spreads; Dry and liquid ready-to-serve meals, mainly consisting of pasta; Sugars, natural sweeteners, sweet coatings and fillings, bee products; Coffee, teas and cocoa and substitutes therefor; Pastries, cakes, tarts and biscuits (cookies); Bread; Boiled confectionery; Prepared desserts [confectionery]; Mousse confections; Preparations for making of sugar confectionery; Croissants; Snack foods consisting principally of confectionery; Dairy confectionery; Muesli desserts; Non-medicated confectionery products; Confectionery ices; Salted biscuits; Bakery goods; Chocolate; Chocolate desserts; Sandwiches; Cheeseburgers [sandwiches]; Hamburgers contained in bread rolls; Filled bread rolls; Cereal preparations; Processed cereals for food for human consumption; Farinaceous food pastes; Baking spices; Preparations for making bakery products; Preparations made from cereals; Puddings; Dessert souffles; Prepared desserts [pastries]; Cereal bars; Oat bars; Cake bars; Mousses (Dessert -) [confectionery]; Custards [baked desserts]; High-protein cereal bars; Cereal bars and energy bars; Snack bars containing a mixture of grains, nuts and dried fruit [confectionery]; Sweetmeats [candy]; Flavoured sugar confectionery; Confectionery; Turkish delight; Halvah.

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 29

Edible oils and fats; meat; meat extracts are identically contained in both lists of goods.

The contested fritters; frozen french fries (listed twice) overlap with the earlier preserved vegetables. Therefore, they are identical. Preserved means food treated in a particular way so that it can be kept for a long time without going bad including in a frozen, dried or cooked state.

The contested dairy products are included in the broad category of the earlier milk products. Therefore, they are identical.

The contested oils for food; edible oils for use in cooking foodstuffs are included in the broad category of the earlier edible oils. Therefore, they are identical.

The contested fish, seafood and molluscs; frozen fish; fish products being frozen; frozen cooked fish; frozen seafood; frozen shellfish are included in the broad category of the earlier fish. Therefore, they are identical.

The contested birds eggs and egg products; scotch eggs are included in the broad category of the opponent’s eggs. Therefore, they are identical.

The contested powdered milk for food purposes; drinks made from dairy products are included in the broad category of the opponent’s milk products. Therefore, they are identical.

The contested preserved meat; meat being roasted; frozen meat; frozen chicken; frozen meat products; deep frozen chicken; frozen poultry are included in the broad category of the earlier meat. Therefore, they are identical.

The contested prepared fruits overlap with the earlier dried fruit. Therefore, they are identical.

The contested soups and stocks; stock [prepared] are similar to a high degree to the earlier meat extracts because they can coincide in nature (both can take liquid or dried forms), method of use (add water), distribution channels, relevant public and producer. They are also in competition in the sense that one can be used in substitution of the other, however this interchangeability works only one way where meat extracts can be used as simple bouillon broths. They do not, however, have the same purpose since the purpose of meat extracts is to provide additional flavor to dishes, or to act as an ingredient for broths.

The contested frozen meals consisting mainly of chicken; frozen appetizers consisting primarily of chicken; prepared meals containing [principally] chicken; frozen meals consisting primarily of poultry are similar to the earlier poultry since the latter is or could be the main ingredient of the former, and they can therefore be similar in nature. They can have the same commercial origin, have the same distribution channels and target the same public.

The contested cheese is similar to the earlier milk as they have the same nature. They usually coincide in producer, relevant public and distribution channels.

The contested dairy substitutes are similar to the opponent’s milk products. They can coincide in producers, distribution channels and relevant public. Furthermore, they are in competition.

The contested prepared dishes consisting principally of meat; ready cooked meals consisting wholly or substantially wholly of meat; prepared meals containing [principally] bacon; prepared meals made from meat [meat predominating]; frozen meals consisting primarily of meat; meat spreads; meat-based mousses are at least similar to the earlier meat since the latter is or could be the main ingredient of the former, and they can therefore be similar in nature. They can have the same commercial origin, have the same distribution channels and target the same public. When the ingredient can be considered as being the main ingredient of the prepared dish, a similarity will exist (04/05/2011, T 129/09, Apetito, EU:T:2011:193, where the Court confirms the finding of similarity between a particular foodstuff and prepared meals mainly consisting of the same particular foodstuff). Consequently, these goods are at least similar.

The contested foods made from fish; frozen meals consisting primarily of fish are at least similar to the opponent’s fish since the latter is or could be the main ingredient of the former, and they can therefore be similar in nature. They can have the same commercial origin, have the same distribution channels and target the same public.

The contested desserts made from milk products; chilled dairy desserts; dairy puddings; yoghurt desserts are at least similar to the earlier and milk products because since the latter is or could be the main ingredient of the former, and they can therefore be similar in nature. They can have the same commercial origin, have the same distribution channels and target the same public.

The contested prepared meals containing [principally] eggs are at least similar to the earlier eggs since the latter is or could be the main ingredient of the former, and they can therefore be similar in nature. They can have the same commercial origin, have the same distribution channels and target the same public.

The contested weed extracts for food are similar to the earlier spices in Class 30 as they have the same purpose. They usually coincide in producer, relevant public and distribution channels. Furthermore they are in competition.

The contested prepared vegetable dishes are at least similar to the earlier cooked vegetables because they have the same nature and purpose, may have the same distribution channels and usually target the same general public.

The contested frozen appetizers consisting primarily of seafood; frozen pre-packaged entrees consisting primarily of seafood are at least similar to the earlier fish because they are various prepared meals with fish as the main ingredient. These goods have the same nature and purpose, may have the same distribution channels and usually target the same general public.

The contested sausage skins and imitations thereof are casings, natural or artificial, that enclose the filling of a sausage and they are usually made from animal intestines. Therefore, these goods are similar to a low degree to the opponent’s meat, as they have the same nature (deriving from animals) and can coincide in producers. However, the contested goods are mainly targeted at professional users.

The contested processed fruits, fungi and vegetables (including nuts and pulses); peanuts, prepared; seeds, prepared; prepared vegetable products; prepared meals consisting principally of vegetables; frozen prepared meals consisting principally of vegetables; frozen sweet corn; quick-frozen vegetable dishes; fruit paste; olive paste; pressed fruit paste; fruit desserts; nut-based food bars; roasted nuts; coconut, desiccated; shelled nuts; preserved nuts; spiced nuts; prepared nuts are similar to at least a low degree to the opponent’s preserved vegetables. Even if it cannot be excluded that some of the contested goods would coincide in numerous relevant criteria such as their nature, purpose, method of use, their complementarity, whether they are competing goods or that they are even identical, these goods clearly belong to one homogeneous sector of fruits, fungi and vegetables on the market and for the majority of them they are - at least - produced by the same companies, target the same end user and are being sold in the same places through the same channels of distribution. Based on this conclusion, none of the contested goods can be considered dissimilar. It follows, therefore, that all the contested goods are at least similar to a low degree to the opponent’s goods.

The contested frozen vegetables are similar to a low degree to the earlier jams as they usually coincide in producer, relevant public and distribution channels.

Contested goods in Class 30

Bread, puddings; baking preparations and yeasts; cereal preparations; Confectionery; sugars; Coffee, teas and cocoa and substitutes therefor; Ice, ice creams (mentioned twice), frozen yogurts and sorbets are identically contained in both lists of goods (including synonyms).

The contested ice [frozen water] are included in the broad category of the earlier ice. Therefore, they are identical.

The contested frozen lollipops; frozen custards; frozen yoghurt [confectionery ices]; ice milk [ice cream]; frozen yogurt confections; iced confectionery (Non-medicated -); mixtures for making water ices; mixtures for making frozen confections; fruit flavoured water ices in the form of lollipops; non-dairy ice cream; ice cream mixes; ice-cream cakes; ice cream gateaux; ice cream desserts; ice cream with fruit; powders for ice cream; ice cream drinks; ice cream substitute; ice cream confectionery; yoghurt based ice cream [ice cream predominating]; ice cream stick bars; flavored ices; sorbets [water ices]; mixtures for making ice cream confections; confectionery ices are at least similar to the opponent’s edible ices. They have the same nature, distribution channels, end users, producers.

The contested frozen pastry stuffed with meat; frozen pastry stuffed with meat and vegetables; iced fruit cakes; iced sponge cakes; frozen pastry sheets; frozen yogurt cakes; frozen pastry stuffed with vegetables; cones for ice cream; pastry dough; puff pastry; frozen pastries; fried dough cookies; tart shells; prepared desserts [pastries]; cake bars are included in or overlap with the broad category of the earlier pastry. Therefore, they are identical.

The contested natural sweeteners, sweet coatings and fillings, are at least similar to the opponent’s sugar and the contested bee products are at least similar to the earlier honey. These goods coincide in purpose, producers, end users and distribution channels.

The contested food preparations based on grains; foodstuffs made from dough; snack foods made from corn; snack foods prepared from maize; snack foods made from wheat; snack foods made of whole wheat; snack food products made from cereal flour; dried pasta; cereal preparations; processed cereals for food for human consumption; preparations for making bakery products are included in or overlap with the broad category of the earlier preparations made from cereals. Therefore, they are identical.

The contested ferments for pastes overlap with the earlier baking powder. Therefore, they are identical.

The contested sauces for barbecued meat; food condiment consisting primarily of ketchup and salsa; sauces for ice cream; mayonnaise-based spreads; mayonnaise and ketchup-based spreads; prepared foodstuffs in the form of sauces are included or overlap with in the broad category of the earlier sauces (condiments). Therefore, they are identical.

The contested alimentary seasonings; baking spices are included in the broad category of the earlier spices. Therefore, they are identical.

The contested salt for preserving foodstuffs is similar to the opponent’s spices because they have the same purpose, they usually coincide in producer, relevant public and distribution channels.

The contested farinaceous food pastes are similar to a high degree to the earlier pizzas as they have the same purpose. They usually coincide in producer, relevant public, distribution channels and method of use. Furthermore they are in competition.

The contested sandwiches, cheeseburgers; sandwiches containing meat; hamburgers contained in bread rolls are similar to the earlier bread as they have the same nature. They usually coincide in producer, relevant public and distribution channels.

The contested organic thickening agents for cooking foodstuffs; thickening agents for cooking foodstuffs are similar to the earlier flour as they usually coincide in producer, relevant public and distribution channels. Furthermore they are in competition.

The contested foods with a cocoa base; foodstuffs made of sugar for making a dessert; foodstuffs containing chocolate [as the main constituent]; foodstuffs made of sugar for sweetening desserts; foodstuffs containing cocoa [as the main constituent]; foodstuffs made of a sweetener for making a dessert; foodstuffs made of a sweetener for sweetening desserts; confectionery in frozen form; frozen dairy confections; frozen confectionery containing ice cream; frozen confections on a stick; frozen yogurt pies; fried dough twists; sandwich spread made from chocolate and nuts; pastries, cakes, tarts and biscuits (cookies); boiled confectionery; prepared desserts [confectionery]; mousse confections; preparations for making of sugar confectionery; croissants; snack foods consisting principally of confectionery; dairy confectionery; non-medicated confectionery products; salted biscuits; bakery goods; chocolate; chocolate desserts; dessert souffles; mousses (Dessert -) [confectionery]; custards [baked desserts]; cereal bars and energy bars; sweetmeats [candy]; flavoured sugar confectionery; turkish delight; halvah; granola-based snack bars; bonbons made of sugar; english muffins; cereal bars; oat bars; high-protein cereal bars; snack bars containing a mixture of grains, nuts and dried fruit [confectionery]; chocolate-based ready-to-eat food bars are at least similar to the earlier confectionery because they coincide in distribution channels, end user and in producer.

The contested processed grains, starches, and goods made thereof; pastries consisting of vegetables and meat; boxed lunches consisting of rice, with added meat, fish or vegetables; pre-packaged lunches consisting primarily of rice, and also including meat, fish or vegetables; cereal-based snack food; prepared savory foodstuffs made from potato flour; ravioli [prepared]; pizzas [prepared]; meat pies [prepared]; snack food products made from potato flour; crisps made of cereals; frozen pizzas; frozen meals consisting primarily of rice; frozen meals consisting primarily of pasta; pasta containing stuffings; pasta-based prepared meals; meals consisting primarily of pasta; dry and liquid ready-to-serve meals, mainly consisting of pasta; filled bread rolls; ready-made dishes containing pasta; filled yeast dough with fillings consisting of meat; pelmeni [dumplings stuffed with meat]; extruded food products made of maize; extruded food products made of wheat; extruded food products made of rice; flour concentrate for food; foodstuffs made of rice; tapioca flour; gruel, with a milk base, for food; food mixtures consisting of cereal flakes and dried fruits; cereal based foodstuffs for human consumption; ready-made baking mixtures; foods produced from baked cereals; cereals prepared for consumption by humans; frozen dough; frozen prepared rice; frozen cookie dough; deep frozen pasta; frozen biscotti dough; frozen prepared rice with seasonings and vegetables; ice cream cone mixes; dough; dough mix; pizza dough; cake doughs; dough flour; batter mixes; alimentary paste [dough]; pasta in the form of sheets; pasta shells; macaroni [uncooked]; wholemeal pasta; dried pasta; filo doughs; filo pastry; ready-to-bake dough products; filled yeast dough with fillings consisting of vegetables; filled yeast dough with fillings consisting of fruits; snack foods consisting principally of pasta; cereals for use in making pasta; muesli desserts are at least similar to the earlier preparations made from cereals because they are complementary, they coincide in distribution channels, end users and producers.

The contested essences for foodstuffs, except etheric essences and essential oils; essences for use in food preparation [other than essential oils]; edible essences for foodstuffs [other than etheric substances and essential oils]; extracts of coffee for use as flavours in foodstuffs are similar to a low degree to the earlier coffee as they have the same purpose. Coffee essences are used to give a coffee flavour to other foodstuffs or beverages. Flavourings as a broader category cover coffee flavourings, which are used to give a coffee flavour to other foodstuffs or beverages. The goods can coincide in distribution channels and end user.

The contested extracts of cocoa for use as flavours in foodstuffs are similar to a low degree to the earlier cocoa because they have the same purpose. They coincide in method of use. The contested extracts are flavourings that can be used to flavour coffee, baked goods, and other foods.

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

c) The signs

ARLA	ALA Food
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 contested sign’s element ‘FOOD’ is meaningful in certain territories, for example in those countries where English is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

For this part of the public, ‘FOOD’ will be devoid of distinctive character in relation to the goods in conflict, which are foodstuff of animal or plant origin, as the term makes a direct reference to the nature of the products.

‘ARLA’ and ‘ALA’ are meaningless terms with an average degree of distinctiveness.

Visually, and aurally the signs coincide in their initial letter/sound ‘A’, differ in the earlier sign’s second letter/sound ‘R’, and coincide in the following letters/sounds ‘LA’. The difference in the earlier sign’s second letter ‘R’ does not have too much impact, especially aurally, as the structure of the signs remains similar, starting and ending with the same ‘A’ vowel, between them the same consonant ‘L’ is placed, only in the earlier sign together with another consonant ‘R’. The letter ‘R’ thus does not make a striking difference, especially in pronunciation.

The difference in the contested sign’s ‘FOOD’ does not have much impact given the lack of distinctive character of this element.

Therefore, the signs are visually and aurally similar to an above average degree.

Conceptually, neither of the signs has a meaning as a whole. Although the contested sign’s word ‘Food’ will evoke a concept, this difference has no impact, as this element is non-distinctive and cannot indicate the commercial origin. The attention of the relevant public will be attracted by the additional fanciful verbal elements which have no meaning. 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, the examination of the 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

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).

The goods have been found identical or similar to various degrees and they target the public at large with average degree of attentiveness.

The signs only differ in the second letter/sound ‘R’ in the earlier mark, and the non-distinctive element ‘Food’ in the contested mark. These differences are not sufficient to counteract the similarities which affect all the letters of the only distinctive element of the contested mark ‘ALA’. Given the above average degree of similarity of the signs, this finding also applies to the goods in relation to which only a low degree of similarity has been found.

Considering all the above, there is a likelihood of confusion on the part of the English-speaking part 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 1 520 899. It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier European Union trade mark registration No 1 520 899 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

Also BLASI

Marianna KONDAS

Sandra IBAÑEZ

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.