OPPOSITION No B 3 071 297

Schwartauer Werke GmbH & Co. KGaA, Lübecker Str. 49-55, 23611 Bad Schwartau, Germany (opponent), represented by Raffay & Fleck, Grosse Bleichen 8, 20354 Hamburg, Germany (professional representative)

a g a i n s t

D2i, SA, rue saint Auban, 02800 La Fere, France (applicant).

On 30/10/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 071 297 is upheld for all the contested goods.

2. European Union trade mark application No 17 950 001 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 17 950 001 (figurative mark ), namely against all the goods in Class 29. The opposition is based on German trade mark registration No 30 674 992 (figurative mark ). The opponent invoked Article 8(1)(a) and (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 29: Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; edible oils and fats.

Class 30: Cereal preparations, pastry and confectionary, in particular cereal and muesli bars, slices or clusters, in particular such with fruits, fruit products or fruit flavour; fruit bars, slices or clusters; sugar products.

Class 32: Fruit beverages and juices; Syrups and other preparations for making beverages.

The contested goods are the following:

Class 29: Frozen fruits; Crystallized fruits; Dried fruit; Glazed fruits; Cooked fruits; Fruit, preserved; Cut fruits; Aromatized fruit; Fermented fruits; Prepared fruits; Fruit pulp; Fruit leathers; Fruit Powders; Bottled fruits; Fruit preserves; Fruit marmalade; Fruit chips; Fruit desserts; Fruits, tinned; Fruit purees; Sliced fruit; Fruit peel; Fruit salads; Fruit pectin; Fruit jellies; Dried fruit products; Fruit flavoured yoghurts; Fruit preserved in alcohol; Pickled fruits; Fruit, stewed; Fruit-based fillings for cobblers; Fruit pie fillings; Bottled sliced fruits.

An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods.

The term ‘in particular’, used in the opponent’s list of goods, indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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.

Dried fruit; cooked fruits; fruit, preserved are identically included in both lists.

The contested frozen fruits; crystallized fruits; glazed fruits; bottled fruits; fruit preserves; fruit chips; fruits, tinned; fruit preserved in alcohol; pickled fruits; fruit, stewed; fermented fruits; bottled sliced fruits are different kinds of preserved fruit which are included in the opponent’s broader category of preserved, dried and cooked fruits. Therefore, these goods are identical.

The contested prepared fruits; dried fruit products; fruit purees; fruit-based fillings for cobblers; fruit pie fillings ; fruit salads (which consist sometimes of cooked or preserved fruits too) overlap with the opponent’s preserved, dried and cooked fruits. Therefore, these goods are identical.

The contested fruit marmalade is defined as “a clear sweetened jelly in which pieces of fruit and fruit rind are suspended” and, therefore, overlaps with and the contested fruit jellies are included in the opponent’s jellies as it is the broader category in the latter case. Therefore, they are identical.

The opponent’s compotes overlap with the contested fruit desserts. Therefore, they are identical.

The contested cut fruits; aromatized fruit; sliced fruit; fruit pulp; fruit leathers are highly similar to the opponent’s preserved, dried and cooked fruits. They coincide in nature, distribution channels, producers, targeted public and are in competition.

Fruit peel is frequently used, for example, in cocktails or to decorate them. Fruit pectin is also used for thickening fruit juices or cocktails. Consequently, the contested fruit powders; fruit peel; fruit pectin are lowly similar to the opponent’s other preparations for making beverages in Class 32 because they coincide in purpose, relevant public and producers.

The remaining contested fruit flavoured yoghurts are lowly similar to the opponent’s fruit beverages in Class 32 because they coincide at least in relevant public and producer.

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 found to be identical or similar are directed at the public at large.

The degree of attention is considered to at most average because the relevant goods are cheap daily consumption products.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is Germany.

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 earlier maark is a figurative mark composed of a rather small square and a circle in it, which is traversed by the verbal element ‘SCHWARTAU’, from which some white stylisations are emanating. The mentioned figurative elements are non-distinctive and the verbal element is non-distinctive as it refers to the German town Bad Schwartau and, thus, describes the origin of the goods at hand.

Moreover, the sign’s dominant (due to its bigger size than the aforementioned elements) element ‘Frutissima’ is depicted in a stylised type font imitating handwriting and a leaf instead of the dot of the second letter ‘i’. The leaf device is non-distinctive because it usually hints at the naturalness or eco-friendliness of the product it is marketed with. The verbal element ‘Frutissima’ does not exist as such in the German language and is distinctive (as a whole), even though the first element ‘fruti’ is of a limited distinctiveness as it alludes to “fruit” the basic component of the relevant goods. The German will perceive this allusion because the English ‘fruit’ is a basic English word and because it is also not too far away from the German equivalent ‘Frucht’ (see also 28/01/2016, R 1556/2015-1 – SEITENBACHER HAPPY FRUITS / Happy Fruttis).

The contested sign is also a figurative mark; composed of ‘Les fruitissimes’ in a stylized type font imitating handwriting, in orange and a double leaf in red instead of the dot of the last letter ‘i’. The leaf, reference is made to the previous assertions regarding such a device in connection with the earlier mark, non-distinctive for the relevant goods. The word elements, however, are (taken as a whole) meaningless for the relevant public and distinctive. However, as explained in the preceding paragraph, the relevant German public will perceive the allusion to ‘fruit’, so that the element ‘fruit’ is of a limited distinctiveness.

The contested sign has no element that could be considered clearly more dominant than other elements.

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).

Visually, the signs coincide in the letters ‘Fru(*)tissim*(*)’ of a distinctive verbal element which forms the dominant element in the earlier mark. They do also coincide in the handwritten type font of said verbal element and in the weak leaf device instead of the dot on the respective last letter ‘i’. However, the signs differ in the ending ‘a’ of the aforementioned verbal element and the non-distinctive rather small and less perceptible ‘SCHWARTAU’ with the non-distinctive figurative elements described above of the earlier mark. As regards the contested sign, they differ in the added fourth letter (‘i’) and the ending ‘es’ of the common verbal element as well as in the preceding and additional verbal element ’Les’.

Therefore, the signs are highly similar.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘Fru(*)tissim*(*)’, present identically in both signs. The pronunciation differs in the sound of the respective final letters ‛a’ and ‘es’ as well as in the additional fourth letter ‘i’ of the mentioned verbal element as well as in ‘Les’ of the contested mark, which have no counterparts in the earlier sign. The Opposition Division does not consider that the relevant public will pronounce the earlier mark’s additional element ‘SCHWARTAU’ due to its considerable smaller size and secondary position. Therefore, it will not necessarily influence the aural comparison.

Therefore, the signs are highly similar.

Conceptually, neither of the signs has a meaning as a whole and reference is made to the previous assertions concerning the semantic content conveyed by the marks and its elements. As both signs will be perceived as alluding to ‘fruit’, the signs are conceptually identical.

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

5. Global assessment, other arguments and conclusion

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 the present case the goods are identical and similar (to various degrees) and the attention is at most average. The coinciding element ‘Fru(*)tissim*(*)’ is distinctive and the dominant element in the earlier mark, which leads to a visual and aural high similarity and to a conceptual identity. Moreover, as the differences are relegated to secondary or some non-distinctive elements, a likelihood of confusion exists.

The earlier mark’s additional verbal element ‘SCHWARTAU’ is non-distinctive and it is depicted very small, only one third of the length of the coinciding and independently distinctive element. The contested sign’s additional verbal element ’Les’ can also not guarantee a safe distinction of the signs as it is also considerably shorter as the coinciding element; especially not when bearing in mind the at most average attentiveness only of the relevant public.

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).

Thus, the minor differences in the coinciding verbal element, namely three/two letters out of twelve/eleven might not be remembered por overlooked, especially because they are either in the middle or final part of the coinciding verbal element.

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).

Considering all the above, 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 German trade mark registration No 30 674 992. It follows that the contested trade mark must be rejected for all the contested goods.

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

Swetlana BRAUN

Lars HELBERT

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.