OPPOSITION No B 3 071 632

Amer Ezzo, Gildelaan 11, 1951 KP Velsen-Noord, The Netherlands (opponent), represented by Inaday, Hengelosestraat 141, 7521 AA Enschede, The Netherlands (professional representative).

a g a i n s t

Riviera S.R.L., Via Sanvito Silvestro 60, 21100 Varese, Italy (applicant), represented by Botti & Ferrari S.R.L., Via Cappellini 11, 20124 Milano, Italy (professional representative).

On 10/01/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 071 632 is upheld for all the contested goods.

2. European Union trade mark application No 17 938 824 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 17 938 824 for the word mark ‘SELES’. The opposition is based on, inter alia, Benelux trade mark registration No 1 019 062 for the word mark ‘seles’. The opponent invoked Article 8(1)(a) and (b) EUTMR.

DOUBLE IDENTITY — ARTICLE 8(1)(a) EUTMR

Pursuant to Article 8(1)(a) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for will not be registered if it is identical to the earlier trade mark and the goods or services for which registration is applied for are identical to the goods or services for which the earlier trade mark is protected.

a) The goods

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

Class 32: Fruit juice beverages; non-alcoholic beverages containing fruit juices; non-alcoholic vegetable juice drinks; non-alcoholic fruit juice beverages; non-alcoholic fruit extracts; apple juice beverages; lemon squash; beverages consisting of a blend of fruit and vegetable juices; beverages consisting principally of fruit juices; non-alcoholic beverages being fruit flavoured; pineapple juice beverages; non-alcoholic grape juice beverages; grapefruit juice beverages; coconut-based beverages; non-alcoholic flavored carbonated beverages; non-alcoholic soda beverages flavoured with tea; bitter lemon; low-calorie soft drinks; cola drinks; dry ginger ale; aerated juices; ginger beer; carbonated non-alcoholic drinks; fruit flavored soft drinks; carbonated lemonades (from root extracts); tonic water [non-medicated beverages]; sweet soft drinks; spring water; aerated water; water-based beverages containing tea extracts; drinking water; bottled drinking water; drinking water with vitamins; functional water-based beverages; flavoured mineral water.

The contested goods are the following:

Class 32: Non-alcoholic beverages; fruit beverages and fruit juices; carbonated drinks, non-alcoholic; non-carbonated soft drinks; soft drinks.

All of the contested goods are identical to the opponent’s goods, either because they are identically contained in both lists (including synonyms) or because the applicant’s goods in this class include, are included in, or overlap with, the opponent’s fruit juice beverages; non-alcoholic beverages containing fruit juices; carbonated non-alcoholic drinks; sweet soft drinks.

b) The signs

seles	SELES
Earlier trade mark	Contested sign

The only difference between the representations of the two word marks is the letter case used. However, the protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics which that mark might possess (22/05/2008, T-254/06, RadioCom, EU:T:2008:165, § 43). Therefore, in the present case, it is irrelevant whether the word marks are in upper- or lower-case letters.

The signs are identical.

c) Conclusion

The signs were found to be identical and the contested goods, as established above in section a) of this decision, are identical to the opponent’s goods. Therefore, the opposition must be upheld under Article 8(1)(a) EUTMR.

As earlier Benelux trade mark registration No 1 019 062 for the word mark ‘seles’ 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 right invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

Since the opposition is fully successful on the basis of the ground of Article 8(1)(a) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(1)(b) EUTMR.

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, 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

Inés GARCÍA LLEDÓ

Helen Louise MOSBACK

Alicia BLAYA ALGARRA

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.