OPPOSITION Nо B 3 073 017

 

New Vinergia 2005, S.L., Avda. Diagonal 590, 5º 1º, 08021 Barcelona, Spain (opponent), represented by Pons Patentes y Marcas Internacional, S.L., Glorieta de Rubén Darío, 4, 28010 Madrid, Spain (professional representative) 

 

a g a i n s t

 

Max Luz, Hopfauer Straße 12, 70563 Stuttgart, Germany (applicant), represented by Härting Rechtsanwälte PartGmbB, Chausseestr. 13, 10115 Berlin, Germany (professional representative).

On 11/06/2021, the Opposition Division takes the following

 

 

DECISION:

 

 

1.	Opposition No B 3 073 017 is rejected in its entirety.

 

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

 

REASONS

 

On 10/01/2019, the opponent filed an opposition against some of the goods of European Union trade mark application No 17 967 609 ‘CAS DE LUZ’ (word mark), namely against some of the goods in Class 33. The opposition is based on European Union trade mark registration No 9 927 641, (figurative mark); European Union trade mark registration No 15 519 614, ‘CAMPOS DE LUZ’ (word mark). The opponent invoked Article 8(1)(b) EUTMR in relation to both earlier rights.

PRELIMINARY REMARK

 

Proof of use of the earlier mark was requested by the applicant. However, at this point, the Opposition Division does not consider it appropriate to undertake an assessment of the evidence of use submitted (15/02/2005, T-296/02, Lindenhof, EU:T:2005:49, § 41, 72). The examination of the opposition will proceed as if genuine use of the earlier mark(s) had been proven for all the goods invoked, which is the best light in which the opponent’s case can be considered.

Likewise, the fact that both earlier trade marks are at risk due to pending cancellation proceedings, does not substantially influence the assessment of the case. The examination of the opposition will proceed as if the existence and validity of the earlier marks is proven, which is the best light in which the opponent’s case can be considered.

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 the following:

EUTM registration No 9 927 641

Class 33: Wines and sparkling wines.

EUTM registration No 15 519 614

Class 33: Wine.

 

The contested goods are, after a partial refusal of the application in opposition proceedings B3072161 which led to the deletion of alcoholic beverages (except beer), the following:

Class 33: Preparations for making alcoholic beverages.

Contrary to the opponent’s assertion, the contested preparations for making alcoholic beverages are dissimilar to the goods on which the opposition is based, namely wines and sparkling wines as well as wine.

While the opponent’s goods are ready-made alcoholic beverages (final products), the contested goods are preparations, such as concentrates and extracts for producing alcoholic beverages. These goods differ in nature, method of use and purpose. Moreover, they do not have the same producers or distribution channels, and they target different relevant publics: the contested goods mainly target manufacturers, rather than final consumers, which is the case of the opponent’s wines (i.e. alcoholic beverages). By definition, goods intended for different public sectors cannot be complementary (22/06/2011, T-76/09, Farma Mundi Farmaceuticos Mundi, EU:T:2011:298, § 30). Also, largely diverging publics weigh heavily against similarity. Furthermore, there is no complementarity simply because one ingredient is or may be needed for the production/preparation of another product. Complementarity applies only to the use of goods and not to their production process (11/05/2011, T-74/10, Flaco, EU:T:2011:207, § 40; 11/12/2012, R2571/2011-2, FRUITINI, § 18).

b) Conclusion 

 

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

 

Given that the opposition is not well founded under Article 8(1) EUTMR it is unnecessary to examine the evidence of use filed by the opponent.

 

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

 

 

Holger KUNZ

Christian STEUDTNER

Konstantinos MITROU

 

 

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.