DECISION

of the First Board of Appeal

of 8 June 2021

In case R 1612/2020-1

Señorío de San Vicente, S.A.
C/ Los Remedios, 27 26338 San Vicente de la Sonsierra Spain	Opponent / Appellant

represented by P.E. Enterprise, S.L., Gran Via 81, planta 5°, Dpto. 9, 48011, Bilbao (Vizcaya), Spain

v

Union Vinicole des Coteaux d’Epernay ‘Champagne Vincent d’Astree’ Societe Cooperative Agricole
Rue Léon Bourgeois 51530 Pierry France	Applicant / Defendant

represented by Casalonga Alicante, S.L., Avenida Maisonnave, 41-6C, 03003, Alicante, Spain

APPEAL relating to Opposition Proceedings No B 3 087 134 (European Union trade mark application No 18 018 024)

The First Board of Appeal

composed of G. Humphreys (Chairperson), M. Bra (Rapporteur) and A. Kralik (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 1 February 2019, Union Vinicole des Coteaux d’Epernay ‘Champagne Vincent d’Astree’ Societe Cooperative Agricole (‘the applicant’) sought to register the word mark

VINCENT D'ASTREE

for the following list of goods, claiming priority for the French national mark No 4 520 827 filed on 31 January 2019:

Class 33 – Alcoholic beverages (except beers).

2. The application was published on 2 April 2019.

3. On 25 June 2019, Señorío de San Vicente, S.A. (‘the opponent’) filed an opposition against the registration of the published trade mark application for all the above goods.

4. The grounds of opposition were those laid down in Article 8(1)(b) EUTMR.

5. The opposition was based on the following earlier rights:

1. Spanish national trade mark registration No M2 059 418 SAN VICENTE filed on 22 November 1996 and registered on 5 February 1998 for the following goods:

Class 33 – Wine, liqueurs and other alcoholic beverages (except for beer).

2. International Registration No 692 163 SAN VICENTE designating Austria, Benelux, Germany, Denmark, France, Italy, United Kingdom, Finland and Ireland, filed and registered on 24 March 1998 for the following goods:

Class 33 – Wine, liqueurs and other alcoholic beverages (except for beer).

6. By decision of 5 June 2020 (‘the contested decision’), the Opposition Division rejected the opposition for all the contested goods and on the grounds that there was no likelihood of confusion. It gave, in particular, the following grounds for its decision:

• The wording of the opponent’s ‘wine, liqueurs and other alcoholic beverages (except for beer)’ means that the specification of the goods covers wine, liqueurs and all other alcoholic beverages except for beer. Therefore, the contested goods are considered to be identically covered in all lists of goods.

• The goods found to be identical are directed at the public at large. The degree of attention is average, as alcoholic beverages are everyday consumer goods, which are usually subject to widespread distribution, ranging from the food section of supermarkets, department stores and other retail sales outlets, to restaurants and cafés.

• The relevant territories are Austria, the Benelux, Denmark, Finland, France, Germany, Ireland, Italy and the United Kingdom in relation to the international registration and Spain in relation to the Spanish trade mark.

• In the case of a word mark composed of a first name and a surname, account must be taken of all the relevant factors of each case and, in particular, of the fact that the surname concerned is unusual or, on the contrary, very common, which is likely to have an effect on the distinctive character of that name. The issue of whether or not a verbal element is perceived as a common first name is also relevant for the purposes of assessing the distinctive character of that element.

• The earlier marks are composed of the verbal elements ‘SAN’ and ‘VICENTE’. For Spanish and Italian consumers, the earlier marks refer to a religious figure (after which locations in Spain are often named, e.g. San Vicente de la Barquera, San Vicente del Raspeig, etc.). For the remaining parts of the public, the words ‘SAN VICENTE’ do not have a clear meaning. However, in the Opposition Division’s opinion, it is still likely that the aforementioned consumers would associate ‘VICENTE’ with the male first name ‘Vincent’ and ‘SAN’ as ‘Saint’, due to the similarity between these equivalents. Nevertheless, these verbal components are distinctive, as they are not descriptive, allusive or otherwise weak in relation to the relevant goods.

• The contested sign has the verbal elements ‘VINCENT’ and ‘D’ASTREE’, which will be seen by the relevant public as a male first name and a surname. The first name ‘VINCENT’ is a frequently used first name in at least part of the relevant territories, such as the English and French-speaking parts of the public. It is also likely that ‘VINCENT’ will be recognised as a common first name by the rest of the relevant public, because it is frequently used in many of the relevant countries, and also because they have very similar equivalents that are also frequently used, such as Vicente in German, Vicente in Spanish and Vincenzo in Italian. The fact that Vincent Van Gogh is one of the most famous artists in the world also supports the assumption that the entire relevant public will recognise ‘VINCENT’ as a name.

• In that regard, even if Vincent/Vicente, as a first name, is more common in countries such as Ireland, Italy and Spain rather than Finland, the mere fact that a first name is not very common within the population of one Member State or another does not necessarily mean that that first name will be perceived by the relevant public as rare in that Member State. Indeed, a first name that is relatively well known within the European Union or internationally will not be perceived by the relevant public as rare, even in Member States where that first name is not very common, in view of the numerous exchanges within the European Union and the current means of electronic communications (27/06/2019, T-268/18, Luciano Sandrone / DON LUCIANO, EU:T:2019:452, § 73-74).

• On the other hand, the word ‘D’ASTREE’ will be seen as a surname because it follows ‘VINCENT’ and the article d’ is quite common in French nobility or history. Therefore, many examples of this kind of surname are known by the entire relevant public (Jeanne d’Arc, d’Artagnan, etc.). It follows that, within the contested mark, ‘D’ASTREE’, an uncommon surname, will be seen as more distinctive than ‘VINCENT’, a widespread first name, by the relevant public.

• Visually, the signs are only similar to the extent that the verbal elements ‘VICENTE’ and ‘VINCENT’ are very similar. However, these verbal elements differ in the letter ‘E’ of the earlier marks and the letter ‘N’ of the contested sign. In addition, the marks display clear differences, as they differ in the first verbal element of the earlier marks: ‘SAN’, and the second element of the contested sign: ‘D’ASTREE’. Therefore, even with the coincidence of the letters ‘VI-CENT-’, taking into account these differences and the fact that the similar verbal elements ‘VICENTE’ and ‘VINCENT’ are positioned differently in the marks in question, the signs are considered visually similar only to a low degree.

• Aurally, the pronunciation of the words ‘VICENTE’ and ‘VINCENT’ are not identical, but they are indeed highly similar. However, they are positioned differently in the marks: the first element in the contested sign and the last element in the earlier marks, clearly affecting the aural aspect. Indeed, the contested mark is longer than the earlier marks and the signs end with different syllables. In addition, the earlier marks contain the word ‘SAN’ while the contested sign contains ‘D’ASTREE’, which is more distinctive. Therefore, the signs at issue are aurally similar to a low degree.

• Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. The earlier marks will be perceived as referring to any person (some abstract unidentified person) named Vicente, or for some parts of the public, a Saint or a location, whereas the additional element ‘D’ASTREE’ in the contested sign provides a narrower determination that refers to a particular named person of the D’Astree family. In view of the fact that the contested mark also evokes the concept of a surname, which supplements that of the first name, and which has more importance in the sign for the reasons explained above, the signs are conceptually similar only to a low degree.

• Regarding the distinctiveness of the earlier marks, the opponent argues that the earlier trade marks have a high degree of distinctiveness as result of its long-standing and intensive use in Spain in connection with alcoholic beverages.

• Preliminarily, regarding the opponent’s confidentiality claim, the opponent has not given any reason as to why Article 114(4) EUTMR would be applicable with respect to its submissions. Likewise, the Opposition Division has not found any indication in the observations that could justify the existence of a special interest. It follows that the confidentiality request cannot be accepted. However, the Opposition Division will describe the evidence as generally as it is possible.

• Besides observing that the opponent has owned the Spanish trade mark ‘SAN VICENTE’ for almost 30 years, since 1991, the opponent submitted the following evidence:

1. Exhibit 1: certificates issued by the Spanish Chambers of Commerce of Álava (dated 27/07/2018), Zamora (dated 12/07/2018) and La Rioja (dated 31/08/2018) in which it is stated that the ‘SAN VICENTE’ trade mark is widely known and reputed in the wine sector in Spain.

2. Exhibit 2: copy of the decision of the Spanish Patent and Trademark Office dated 21/03/2019, refusing Spanish trade mark No 3 721 207 ‘TERRAZAS DE SAN VICENTE’ in Class 33. This opposition was based on earlier rights: Spanish trade mark ‘SAN VICENTE’ (Class 33), and ‘SEÑORIO DE SAN VICENTE’ (Class 33). This opposition decision recognises the reputation of the prior trade marks.

3. Exhibit 3: copy of the decision of the Spanish Patent and Trademark Office dated 21/03/2019, refusing Spanish trade mark No 3 721 212 ‘BANCALES DE SAN VICENTE’ in Class 33. This opposition was based on earlier rights: Spanish trade marks ‘SAN VICENTE’ (Class 33), and ‘SEÑORIO DE SAN VICENTE’ (Class 33). This opposition decision recognises the reputation of the prior trade marks.

4. Exhibit 4: copy of the decision of the Spanish Patent and Trademark Office dated 14/01/2019 refusing Spanish trade mark No 3 721 166 ‘LA VEGA DE SAN VICENTE’ in Class 33. This opposition was based on the following earlier rights: Spanish trade marks ‘SAN VICENTE’ (Class 33), and ‘SEÑORIO DE SAN VICENTE’ (Class 33). This opposition decision recognises the reputation of the prior trade marks.

5. Exhibit 5: tasting notes of ‘SAN VICENTE’ wines, indicating that the wine had obtained excellent evaluations, all over 90 points, for vintages from 2010 to 2014. For example, Guía Proensa awarded 99 points to all those vintages; Robert Parker (the Wine Advocate) awarded 92 points to the 2011, 2012 and 2014 vintages and 93 points to the 2013; while Guía Peñín awarded 94 points to the 2013 and 2014 vintages.

• Having examined the material listed above, the Opposition Division concludes that the evidence submitted by the opponent does not demonstrate that the earlier trade marks acquired a high degree of distinctiveness through use. The statement of the Chamber of Commerce of Alava, Zamora and La Rioja, Spain indicates that the ‘the trade mark SAN VICENTE is well known in the wine and hotel market’. First of all, the Office does not know the criteria used in the Chamber of Commerce’s categorisation of ‘well known’. Secondly, unless accompanied by collaborative evidence, this statement is a mere statement from the attester’s point of view, which does not necessarily coincide with the perception of the general public at large. From a general statement regarding the marks’ status in the wine sector in these cities, the Opposition Division cannot draw a conclusion as regards the reputation of the earlier marks in relation to the particular goods in question.

• The above conclusion is not called into question by the national judgment and decisions of the Spanish Patent and Trademark Office submitted by the opponent. Although the opponent has provided these decisions/judgments as examples of where the opponent has successfully opposed other marks on account of the coincidence in the element ‘VICENTE’, none of the documents clearly establish that the earlier marks enjoy reputation or enhanced distinctiveness in relation to the particular goods in question. This information, unless accompanied by collaborative evidence, is a mere statement from the attester’s point of view, which does not necessarily coincide with the perception of the general public at large. In any case, it is noted that national decisions are not binding for the Office, in the sense that it is not mandatory to follow their conclusions.

• In summary, the Opposition Division considers that the evidence submitted does not demonstrate that these marks are widely known and recognised by the public in the relevant territory and does not contain information on the proportion of the relevant part of the public that, because of the marks ‘SAN VICENTE’, identifies the goods in question as originating from a particular undertaking.

• Consequently, the assessment of the distinctiveness of the earlier marks will rest on its distinctiveness per se. In the present case, the earlier trade marks as a whole have 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 marks must be seen as normal.

• The goods are identical and the signs are similar to a low degree. In addition, the earlier marks have a normal degree of inherent distinctiveness.

• In a situation involving a first name that the relevant public does not regard as rare, such as Vicente/Vincent, the public will not expect only one producer to use that name as an element of a trade mark. In addition, given that the relevant public will ascribe greater distinctiveness to the element ‘D’ASTREE’ of the contested sign than to the element ‘VINCENT’, that the element ‘VICENTE’ (which is similar to ‘VINCENT’) is only one of two elements of the contested mark (which are placed in different positions), and in view of the significance of the other element present in the contested mark, there is no likelihood of confusion, even for the goods in question that are deemed identical.

• Based on a global assessment of all the relevant factors, it is concluded that all the differences described above will not go unnoticed to the public and are sufficient to justify the conclusion that the consumers are unlikely to confuse or associate the signs in question, even in relation to identical goods.

• Considering all the above there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

7. On 3 August 2020, the opponent filed an appeal against the contested decision, requesting that the decision be entirely set aside. The statement of grounds of the appeal was received on 22 September 2020.

8. In its response received on 17 November 2020, the applicant requested that the appeal be dismissed.

Submissions and arguments of the parties

9. The arguments raised in the statement of grounds may be summarised as follows:

The goods and the relevant public

• The opponent agrees with the comparison of goods made in the contested decision, where they were found to be identical. The opponent also agrees that relevant public is the public at large who will display an average degree of attention.

The signs

• The marks in conflict are word marks, the contested sign corresponding to the denomination ‘VINCENT D’ASTREE’, while the earlier signs consisting of the words ‘SAN VICENTE’.

• The opponent disagrees with the finding of the contested decision regarding the contested sign. It will not be perceived as a combination of a common name and an uncommon surname. This assessment does not take into consideration that the element ‘D’ASTREE’ would be more commonly perceived by at least part of the relevant public as a reference to a geographical location. As such, the part of the public not familiar with the French language and surnames, since there are no clear indications that D’ASTREE is a real French surname, will interpret that said element indicates that the person Vincent comes from a French location called ‘ASTREE’. The use of the apocopated preposition DE (D’) will be associated, particularly by the public with Romance languages other than French, with the equivalent preposition in their language, (e.g.: de in Spanish and di in Italian). Hence, it will be more directly interpreted as a reference of origin. As a consequence, the element ‘D’ASTREE’ will be considered as a reference to the geographical origin of the goods, and interpreted as a French location, whether it is a vineyard, geographical area, or winemaker, and, thus, descriptive.

• Moreover, a minority of the public may associate it with the 17^th century novel L’Astrée, and understand that sign indicates that ‘Vincent’ is a character from said work. Even more so, the mystical concept behind the element ‘ASTREE’, which refers to stars, may result in a link in the mind of the consumer with Saint Vincent.

• Since the word ‘VINCENT’ in the contested application is positioned at the beginning of the sign, where consumers tend to focus their attention, it remains the dominant component of the sign.

• As for the earlier signs, the element ‘SAN’, which is the Spanish for Saint, not only is an accompanying particle to the noun VICENTE, but it is also commonly used in trade marks that designate alcoholic beverages in Class 33. The opponent enumerated some trade marks registered at the EUIPO with said characteristics, such as EUTM registration No 586 685 SAN SISTO, EUTM registration No 255 603 SAN BLAS, EUTM registration No 692 300 SAN LORENZO etc. Therefore, the element ‘VICENTE’ is the most distinctive element in the prior signs.

The comparison of the signs

• Visually, the signs are, at least, similar due to the coincidence in the signs of the letters ‘VI*CENT*’ in the elements ‘VINCENT/VICENTE’. These are different versions of the same name, which will attract the attention of the consumer given its position in the contested sign and the fact that it is the most distinctive element in the prior trade marks.

• From a phonetical point of view, the relevant consumer will generally apply the phonetical rules of the language they are familiar with to the same letters, independently of the language that they take as a reference. As such, the French consumer will pronounce the element ‘VICENTE’ of the prior trade marks according to French pronunciation rules, muting the final ‘E’. On the contrary, the Spanish consumer will pronounce the element ‘VINCENT’ according to its own language rules on phonetics, opening the vocals and stressing the second syllable, like in the word ‘VICENTE’. The same will be applicable in other languages.

• Moreover, given that the words ‘VICENTE’ and ‘VINCENT’ are the same name in different languages, which will be easily perceived, the consumer will tend to assimilate the pronunciation to the version they are most accustomed to, that is, the one of its own language. As such, the phonetical similarity between the signs cannot be denied, and cannot be compensated by the differences.

• Conceptually, both signs bring to the mind of the consumer the same idea of a man with the name ‘VINCENT/VICENTE’. The part of the public that attributes a meaning to the element ‘SAN’ as the Spanish abbreviation of the element Saint will understand it as referring to the Saint of said name. Regarding the element ‘D’ASTREE’, it may be perceived as a geographical origin. In any case, it is not clear that the general consumers whose mother tongue is not French will attribute a precise meaning to this element such as to differentiate it from ‘SAN VICENTE’. As such, the impact of the diverging elements in the conceptual impression of the signs will be secondary to that of the element ‘VINCENT/VICENTE’. Hence, the signs are conceptually similar.

• Moreover, there are several saints named Vincent, and saints are also referred to in different ways, many times highlighting their geographical origin or area of influence, even city of patronage. Therefore, a part of the public may even assume that ‘VINCENT D’ASTREE’ could be referencing to ‘SAN VICENTE’, rendering the signs conceptually identical for this part of the public.

The distinctiveness of the earlier marks

• The opponent argued that the earlier trade marks acquired a high degree of distinctiveness through use in the territory of Spain and provided the documents mentioned under paragraph 6 as evidence of the reputation of the earlier marks. The opponent has owned the ‘SAN VICENTE’ mark since 1991. The ‘SAN VICENTE’ trade mark has a high distinctive character due to the intensive and long duration of the use for the goods for which it is registered in the territory of Spain. These products have been in the market for a long time, making the denomination ‘SAN VICENTE’ highly recognisable in the market and highly associated with the opponent.

• The contested decision found that the evidence filed by the opponent did not allow to draw conclusions on this matter. The opponent noticed that the Chambers of Commerce in Spain are public corporations in charge of the representation, promotion and protection of the general interests of businesses. As such, they possess detailed information of the market, and, by extension, of the view of the consumers that operate in said market, and issue certifications that are generally accepted by Spanish judicial bodies. The submission of the Certificates from the Chambers of La Rioja, Álava and Zamora do not imply that the San Vicente wine is only reputed in said territories.

• The decisions of the Spanish Patent and Trade mark Office reflect this consideration and consider the ‘SAN VICENTE’ trade mark reputed among the Spanish public for goods in Class 33 and among the general public. A more detailed analysis of such reputation is not provided in the decisions of the OEPM according to their general practice.

• Even more so, the denomination ‘SAN VICENTE’ has become a benchmark of quality regarding alcoholic beverages, as shown by the numerous awards and recognitions granted and reflected in the tasting notes. Therefore, if a new trade mark incorporates a distinctive similar element for an alcoholic beverage, consumers will be led to think that they are acquiring a product with the same characteristics as the ones offered by the opponent.

Global assessment and likelihood of confusion

• Contrary to the assessment of the contested decision, in the present case, the signs in conflict are, at least, similar to an average degree, due to their coincidence in the elements ‘VINCENT/VICENTE’, which are the most dominant and distinctive elements in both signs. In addition, the goods designated by the trade marks in conflict are identical, and the prior trade marks ‘SAN VICENTE’ enjoy enhanced distinctiveness for the territory of Spain due to use.

• The element ‘D’ASTREE’ may not only be perceived as a surname, and at least a considerable part of the relevant public will understand it as referring to the geographical origin or conveying some additional characteristic of the goods, particularly because it starts with the abbreviated element ‘D’.

• Moreover, it should be borne in mind that the relevant goods are alcoholic beverages and, since these are frequently ordered in noisy establishments (bars, nightclubs), the phonetic similarity between the signs is particularly relevant. In this case the level of aural similarity is high. Furthermore, the General Court has held that, in the wines sector, consumers usually describe and recognise wine by reference to the verbal element that identifies it, particularly in bars and restaurants, where wines are ordered orally after their names have been seen on the wine list.

• In the wine sector, it is common for companies to use sub-brands to identify different lines of products according to their ageing (joven, crianza, reserva, gran reserva…), vintage, typology of the products (grape used, whether they are under P.D.O, etc.), or to market special or limited editions. In this case, the sign ‘VINCENT D’ASTREE’ can easily be perceived as a variation of the ‘SAN VICENTE’ wines that, for example, are produced in a French vineyard called ‘ASTREE’ by the same company.

• In light of the above, the contested sign has to be rejected for creating a risk of confusion and association among the consumers and damaging the legitimate interest of the opponent, under Article 8 EUTMR.

10. The arguments raised in response may be summarised as follows:

• The applicant requests that the contested decision is confirmed and disputes the arguments developed by the opponent in support of the appeal. The applicant agrees with the finding of the contested decision that there can be no likelihood of confusion between the two signs.

Comparison of goods

• The applicant does not dispute the contested decision’s finding that the goods are identical.

The relevant consumers

• The applicant agrees with the analysis made by the Opposition Division regarding the relevant public and its degree of attention.

Comparison of the signs

• The signs in conflict are visually, phonetically, and conceptually different. When viewed in their entirety or globally, the subject marks do not convey the same overall impression.

Distinctive elements of the contested mark

• In support of the findings of the contested decision, which considers the contested mark to be perceived as a common name and an uncommon surname, which therefore dominates the overall impression of the sign, the opponent denies that the relevant public will recognise the element ‘VINCENT’ as a common first name. Annex 1 shows that the first name Vincent is very common in Europe (https://en.wikipedia.org/wiki/Vincent). It follows that, contrary to what the opponent asserts, the only fact that ‘VINCENT’ is positioned at the beginning of the contested sign, is not sufficient to considerer it as the only dominant component of the sign.

• Regarding the word ‘D’ASTREE’, it is very distinctive. It will be seen by the relevant public as a surname because it follows directly the first name Vincent. The opponent submitted Annexes 2 and 3 to show that the word ‘D’ASTREE’ is an uncommon family name in France.

• Moreover, as already stated by the contested decision, the nobiliary particle ‘d’ ’ is quite common in French nobility and history. For example, these famous persons of French history: Charles de Gaulle, Honoré de Balzac, François d’Assise, Simone de Beauvoir, Jean Le Rond d’Alembert or Jean de la Fontaine (Annex 4, https://en.wikipedia.org/wiki/Nobiliary_particle).

• The word ‘D’ASTREE’ cannot be seen as a reference of geographical origin of the goods, as argued by the opponent, who did not prove that Astrée is a geographical area. Indeed, no town or region in France is called Astrée. Further, the opponent’s arguments are inconsistent. Firstly, the relevant public is considered not to be familiar with the French language and culture and will not understand the nobiliary particle ‘de’ or ‘d’ ’, whereas, it is argued that the relevant public may associate the contested mark with a famous work of 17^th century French literature.

Distinctiveness of the earlier marks

• The applicant agrees with the contested decision which concluded that the evidence provided ‘does not demonstrate that these marks are widely known and recognised by the public in the relevant territory and does not contain information on the proportion of the relevant part of the public that, because of the marks “SAN VICENTE”, identifies the goods in question as originating from a particular undertaking’. The decisions from the Spanish Patent and Trademark Office are not relevant in the present case as the contested mark differs visually, phonetically and conceptually from the earlier marks.

• Moreover, as stated in the contested decision, the Office is not bound by the Spanish Patent and Trademark Office decisions, in the sense that it is not mandatory to follow their conclusion. Since there is no information regarding the evidence submitted before the Spanish jurisdiction, it is impossible for the Office to assess the relevance of the decisions with a reasonable degree of certainty.

• Further, the certificates issued by the Spanish Chambers of Commerce of Alava, Amora and la Rioja, and the tasting notes of ‘SAN VICENTE’ wines cannot be considered sufficient to prove an established reputation.

• In addition, the earlier marks are not distinctive, but are allusive or weak in relation to the relevant goods since they refer directly to the patron saint of wine makers, Saint Vincent of Zaragoza. He is a famous Saint, a Spanish deacon and martyr from the 4^th century. Annexes 5, 6, 7 and 8 refer to San Vincent of Zaragoza in France. Annexes 9, 10 and 11 refer to the perception of the saint in Spain and Annex 12 refers to the USA.

• In this regard, the term ‘San Vicente’ in Spanish, which constitutes the earlier marks, would be understood as relating to the patron saint of wine growers and the day people celebrate the wine (22^nd January). Therefore, it may be considered as allusive of the characteristics of the goods protected. Consequently, because of its weak distinctiveness per se over a part of the European Union territory, the earlier marks cannot claim extensive protection or a high likelihood of confusion.

• However, in the event that the Board of Appeal does not agree with this assessment, the applicant firmly contests the alleged reputation of the earlier trade marks as stated in the contested decision. The Board should at least confirm the Opposition Division’s statement that the verbal components of ‘SAN VICENTE’ are distinctive to a normal degree.

• The word ‘SAN’, which means ‘saint’ in Spanish, is not only a particle to the noun ‘VICENTE’, and the relevant public will analyse it as being as distinctive as the first name Vicente. Moreover, since the word ‘SAN’ in the prior sign is positioned at the beginning of the sign, where the consumers tend to focus their attention, it remains a normal distinctive element of the earlier trade marks.

• Regarding the word ‘VICENTE’, it will be recognised by the relevant public as a common male first name. As a consequence, this verbal component has a normal degree of distinctive character in relation of the relevant goods.

The comparisons of the signs

• Visually, the two signs differ in their first words (SAN vs VINCENT) and their last words (VINCENTE vs D’ASTREE). Furthermore, considering the low distinctiveness of the name Vincent, the verbal element ‘D’ASTREE’ is the more dominant element of the contested mark. This element does not exist in the earlier marks and therefore has no visual similarity to it. Moreover, the contested mark does not reproduce the word ‘SAN’ which is contained in the earlier marks and which provides a very different visual impression. Therefore, the signs are not similar on a visual basis.

• Phonetically, the rhythm, number of syllables, beginning and termination represent differences that avoid any likelihood of phonetic confusion. The mark ‘VINCENT D’ASTREE’ is composed of three words, fifteen letters and four syllables. Conversely, the opponent’s mark[s] has only two words and 10 letters. Moreover, the earlier marks are pronounced with the Spanish pronunciation ( [san] [vi] [shen] [tai]) whatever the language of the consumer in the European Union, which is very different from the French pronunciation of the contested mark ([vin] [cen] [d’as] [tré]). Therefore, the signs are not similar on a phonetic basis.

• Conceptually, the earlier marks ‘SAN VICENTE’ mean the patron saint of the wine makers. Conversely, the contested mark ‘VINCENT D’ASTREE’ does not evoke a saint, but rather a winemaker named ‘VINCENT’ of the ‘D’ASTREE’ family. Furthermore, for the French public, the element ‘D’ASTREE’ is allusive of the ‘astres’ in French, which means the stars and the astrology. Consequently, the marks are conceptually not similar and there is no likelihood of confusion between the marks.

Global assessment of the likelihood of confusion

• The applicant agrees with the contested decision, which stated that ‘based on a global assessment of all the relevant factors, it is concluded that all the differences described above will not go unnoticed to the public and are sufficient to justify the conclusion that the consumers are unlikely to confuse or associate the signs in question, even in relation to identical goods’.

• It should be noted that consumers usually describe and recognise wines by reference to the word element which identifies them and that this element designates, in particular, the grower or the estate on which a wine is produced.

• Moreover, in the wine sector, where the use of signs consisting of surnames or first names is very common, it is implausible that the average consumer might believe that there is an economic link between the proprietors of the signs at issue merely because they share a first name which is perceived as very common, in Spain and in France and in other countries of the European Union.

• Thus, it is the distinctive element ‘D’ASTREE’ which will serve to identify the applicant’s wines, or the name ‘VINCENT D’ASTREE’ as a whole, but not the element ‘VINCENT’ alone. Taking into consideration the main distinctive element of the contested sign and the weak distinctiveness of the element ‘SAN VICENTE’, the contested sign when viewed in its entirety or globally bears no resemblance to the earlier marks. The differences ensure that confusion as to source will not occur even if the goods covered by the subject marks are identical or similar.

• The relevant public will not expect only one producer to use such a common first name ‘Vincent’ or ‘Vicente’ as an element of a trade mark.

• For the reasons set forth herein, the Board of Appeal should confirm the contested decision, and conclude that there is no risk of confusion as the cumulative conditions required for Article 8(1)(b) to apply are not met and therefore the contested sign should be accepted for registration for all the goods claimed in Class 33.

Reasons

11. All references made in this decision should be seen as references to the EUTMR (EU) No 2017/1001 (OJ 2017 L 154, p. 1), codifying Regulation (EC) No 207/2009 as amended, unless specifically stated otherwise in this decision.

12. The appeal complies with Articles 66, 67 and Article 68(1) EUTMR. It is admissible.

Confidentiality

13. Article 114(4) EUTMR provides that files may contain certain documents which are withheld from inspection, in particular if the party concerned showed a special interest in keeping them confidential.

14. In the event that a special interest in keeping a document confidential is invoked in accordance with Article 114(4) EUTMR, the Office must check whether a special interest is sufficiently shown. Such a special interest must exist because of the confidential nature of the document or its status as a trade or business secret.

15. In this case, the opponent merely marked its statement of grounds as confidential but did not give any reason as to why Article 114(4) EUTMR would be applicable, nor has the Board found any indication that could justify the existence of a special interest (16/04/2021, R 1236/2020-5, +music (fig.) / Device of a white cross within a black square (fig.), § 13-15).

Article 8(1)(b) EUTMR

16. According to Article 8(1)(b) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered if, because of its identity with, or similarity to, an earlier trade mark, and the identity or similarity of the goods or services covered by the two trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.

17. The risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion within the meaning of that Article (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 16-18; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 30).

18. It is clear from that provision that a likelihood of confusion presupposes both that the mark applied for and the earlier mark are identical or similar, and that the goods covered by the application for registration are identical or similar to those in respect of which the earlier mark is registered. Those conditions are cumulative (12/10/2004, C-106/03, Hubert, EU:C:2004:611, § 51).

19. A likelihood of confusion must be assessed globally, taking into account all factors relevant to the circumstances of the case (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 16; 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18).

20. The global assessment must be based on the overall impression given by the trade marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23; 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 25).

Relevant public

21. For the purpose of the global assessment of the likelihood of confusion, the average consumer of the category of goods concerned is deemed to be reasonably well-informed and reasonably observant and circumspect (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

22. It should, however, be recalled that the average consumer’s level of attention is likely to vary according to the category of goods in question and that the average consumer only rarely has the chance to make a direct comparison between the different marks, but must place trust in the imperfect picture of them that he or she has kept in his or her mind (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

23. In the present case, the parties did not contest the findings of the Opposition Division, which rightly held that the goods in question were directed to the public at large and that the degree of attention was average, since alcoholic beverages are everyday consumer goods, which are usually subject to widespread distribution.

24. The Board therefore endorses the undisputed findings of the contested decision that the relevant consumer is the public at large who will display an average degree of attention.

25. Having regard to the scope of protection of the earlier marks, the relevant territories are Austria, the Benelux, Denmark, Finland, France, Germany, Ireland and Italy in relation to the international registration and Spain in relation to the Spanish trade mark. This was not disputed by the parties.

Comparison of the goods

26. In assessing the similarity of the goods or services concerned, all the relevant factors relating to those goods or services themselves should be taken into account. Those factors include, inter alia, their nature, their intended purpose, and their method of use and whether they are in competition with each other or are complementary (29/09/1998, Canon, C-39/97, EU:C:1998:442, § 23, 12/05/2020, R 2779/2019-5, Racetools / Race (fig.) § 15, 11/07/2007, PiraÑAM, T-443/05, EU:T:2007:219, § 37). Other factors may also be taken into account such as, for example, the distribution channels of the goods concerned (11/07/2007, PiraÑAM, T‑443/05, EU:T:2007:219, § 37).

27. The contested decision found the goods covered by the earlier marks and those for which the contested sign is applied for to be identical, as the contested goods are included in the specifications of the earlier marks. This finding has not been dispute by the parties and the Board endorses the analysis of the Opposition Division.

Comparison of the signs

28. It must be recalled and it is settled case-law that the global assessment of the likelihood of confusion must, as far as concerns the visual, aural or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, inter alia, their distinctive and dominant components (17/11/2005, T‑154/03, Alrex, EU:T:2005:401, § 52 and the case-law cited).

29. In the present case, the signs under comparison are:

    SAN VICENTE	VINCENT D'ASTREE
    Earlier marks	Contested sign

30. The earlier marks are word marks which consist of the verbal elements ‘SAN’ and ‘VICENTE’.

31. The opponent argues that ‘VICENTE’ is the most distinctive element of the earlier marks since the word ‘SAN’ is commonly used in trade marks that designate alcoholic beverages in Class 33. The Board notes that list of trade marks including ‘SAN’ submitted by the opponent might show that this term is often used in combination with a name in the alcoholic beverages sector, but does not provide indication of its perception by the relevant public.

32. Moreover, it should be noticed that the first name ‘VICENTE’ is very common in Spanish and more generally in Europe (as is also confirmed by the applicant’s Annex 1) and thus it is reasonable to conclude that it will be perceived as such by at least a substantial part of the relevant public throughout the European Union. The existence of numerous famous people (Vincent Van Gogh; Vincent Cassel, Vincent Prince of Denmark; Vincent Lübeck, a German composer of the 18^th century; etc.), Saints and even fictious characters (Vincent Corleone, in Godfather III) bearing that name, further supports this finding.

33. The Board shares the contested decision’s view that the words ‘San Vicente’ will be understood as referring to a religious figure by the Spanish and Italian public, (or as a location, for people who now Spain well). Due to the similarity to equivalent terms (such as ‘Saint Vincent’) in other languages, also other parts of the relevant public throughout Europe will likely attribute this meaning to the earlier marks.

34. In relation to the relevant goods, these verbal components are distinctive.

35. The contested sign is a word mark consisting of the verbal elements ‘VINCENT’ and ‘D’ASTREE’. These elements will most likely be perceived by the relevant public as a combination of a name and surname, to the extent that the first component will be perceived as a forename and the sign follows the ordinary structure of a full family name.

36. In the Board’s view the opponent’s claims that the mark applied for could be understood as referring to a location, thus as an indication of origin (‘VINCENT’ coming from ‘ASTREE’) seems quite farfetched, in the absence of evidence that ‘Astrée’ is well known as a geographical name. Also, bearing in mind that ‘Vincent(e)’ is a common name with close equivalents in most European countries, it seems also farfetched that at least the common name would not be recognised, so that the sign could have no specific meaning in any of its components. Regardless of the above, ‘D’ASTREE’ whether it is perceived as a family name or otherwise, the unusual element ‘D’ASTREE’ will be considered the most distinctive element of the sign, independently of the meaning that the relevant public can refer to it.

37. With a view to the above, it must be confirmed that, as correctly pointed out by the Opposition Division, the terms will most likely be perceived as the combination of a common name and an unusual surname. As explained above, not only the first name ‘VINCENT’ is frequently used by the English and French-speaking parts of the relevant public (in Ireland, France, the Benelux), but it also has close equivalents throughout Europe. Nonetheless, given the very similar equivalents in other languages (such as in German, Spanish, Italian), it will be recognised as a common first name also by the rest of the relevant public. As also underlined in the contested decision, even if a name might not be very common in some countries (such as in Finland in the case at hand), this is not sufficient to maintain that the relevant public will perceive the name as rare, in view of the numerous exchanges within the European Union and the current means of electronic communications (27/06/2019, T‑268/18, Luciano Sandrone / DON LUCIANO, EU:T:2019:452, § 73-74).

38. On the contrary, ‘D’ASTREE’ will most likely be perceived as an unusual surname since it follows ‘VINCENT’, following a typical structure of a full personal name. It should also be noted that the preposition ‘d’’ or ‘de’ is very common in French surnames, such as Joanne d’Arc and d’Artagnan, in particular in nobility titles. This preposition is frequently used in historical names. Moreover, for the sake of completeness, it should be noted that the preposition ‘d’’ or equivalent prepositions, are not only used in French nobiliary names, but also in other languages, such as in Spanish, Italian and German, as for example in names like Charles de Gaulle, Vittorio de Sica, Cayetana de Alba, Franz von Papen, Virgil van Dijk. It thus can be reasonably argued that, not only consumers in those Member states, but also other part of the relevant public will be accustomed to perceiving this combination of words as a first name followed by a surname possibly indicating nobiliary title.

39. It is also relevant to mention that in the wine and alcoholic beverages sector, it is common practice to use the combination of a name and a surname as a distinctive sign, as it is not rare that these kinds of products take their names from the winemaker or their ancestors (16/12/2008, T‑259/06, Manso de Velasco, EU:T:2008:575, § 64). It should be therefore considered that consumers are used to distinguishing the commercial origin of wines from the surnames incorporated in the signs, regardless of the coincidence of the first names (18/03/2021, R 1385/2020-5, ANA DE ALTUN (fig.) / ANNA (fig.) et al, § 57).

40. It follows that it is very likely that the relevant public will perceive ‘D’ASTREE’ as a surname, following a first name.

41. In addition, according to EU case-law, in trade marks composed of a first name and a surname, as a general rule the relevant consumer will normally perceive the surname as having more distinctive character than the first name. (01/03/2005, T185/03, Enzo Fusco, EU:T:2005:73, § 50, 55, 13/07/2005, T-40/03, Julián Murúa Entrena, EU:T:2005:285, § 67, 72). Nonetheless, the Court of Justice has stated that it is appropriate to take into account in particular of the fact that the surname concerned is unusual or, on the contrary, very common, which is likely to have an effect on its distinctive character (16/05/2013, C-379/12 P, H/Eich, EU:C:2013:317, § 44; 24/06/2010, C-1/09 P, Barbara Becker, EU:C:2010:368, § 36).

42. In the case at hand, as argued by the applicant, ‘D’ASTREE’ is not a common surname in France, or elsewhere in the EU. On the contrary, first names that are commonly used, such as ‘VINCENT’ in the mark at stake, would attract the attention of the public less.

43. It follows that the element ‘D’ASTREE’, being an unusual surname, will be more distinctive than the first name ‘VINCENT’, as correctly noted by the Opposition Division and contrary to the opponent’s view. The Board underlines that the position of first name ‘VINCENT’ at the beginning of the sign is not per se sufficient to automatically consider this element as more significant than the other word element.

44. It must be concluded that, contrary to the opponent’s view, the sign ‘VINCENT D’ASTREE’ is unlikely to be perceived as an indication of geographical origin. The opponent has not proved that ‘D’ASTREE’ is a geographical area or that it is known by a significant part of the relevant public as such. Moreover, as noted by the applicant, ‘D’ASTREE’ is not a name of a town or a region in France. The Board therefore endorses the view of the contested decision.

45. The other interpretations proposed by the opponent, namely that the contested sign might refer to a character of a 17^th century French novel or to the stars and consequently might be connected to Saint Vincent, also appear quite farfetched. In any case the opponent did not provide any evidence in relation to either argument. Even if for some French-speaking consumers ‘D’ASTREE’ might vaguely evoke ‘a star’, this would not cause any spiritual or other association, and more importantly, it is unlikely to determine any relation with the earlier marks.

46. In summary, the Board confirms the contested decision’s finding that ‘VINCENT’ is a common name in most relevant territories and will most probably be understood as such also by the rest of the relevant public. The term ‘D’ASTREE’ is therefore relevant to determine the distinctive character of the sign, allowing the public to identify a specific, real or unknown, person, and is the most distinctive part of the sign, as it is not commonly used in any of the relevant territories.

47. That being said, visually, the signs are similar only to the extent that ‘VICENTE’ and ‘VINCENT’ are very similar and, as argued by the opponent, are the same name in a different language. Nonetheless, the differences prevail on the similarities since, besides differing in the letter ‘N’ and ‘E’ of the abovementioned first names, the signs also comprise additional words respectively ‘SAN’ and ‘D’ASTREE’, which differ completely. In addition, given that ‘D’ASTREE’ is the most distinctive element of the contested sign and that the similar terms ‘VICENTE’ and ‘VINCENT’ are in different positions in the signs, the Board concurs with the contested decision that the marks are similar only to a low degree.

48. Aurally, even if the pronunciation of the signs can be similar insofar as the names ‘VICENTE’ and ‘VINCENT’ is concerned, those words are likely to be pronounced differently, since the public will most likely perceive them as respectively being a Spanish name and French or English name. Moreover, they are positioned differently in the signs. The pronunciation also differs in relation to the terms ‘SAN’ and ‘D’ASTREE’. Overall, in view of the differences in the length of the signs, the rhythm, the number of letters and the order of the sound of the respective words, the Board concurs with the contested decision’s finding that the marks are similar only to a low degree.

49. Conceptually, the contested decision correctly held that the marks are similar only to a low degree. Indeed, as explained above, it is highly unlikely that the relevant public would fail to recognise the component ‘Vincent(e)’ of the marks as a common male first name. Therefore, the signs would be perceived as referring to a man named ‘VICENTE/VINCENT’, but the additional elements ‘SAN’ and ‘D’ASTREE’ allow the relevant public to make a distinction. The earlier marks will most likely be perceived as a reference to a Saint, a religious figure (after which locations in Spain are often named, e.g. San Vicente de la Barquera, San Vicente del Raspeig, etc., as also noted in the contested decision), whereas the contested sign, being perceived as a combination of a first name and a surname, will refer to a specific person, imaginary or real, who is likely part of the d’Astree family. As explained above, the opponent’s argument that part of the relevant public might not attribute a precise meaning to the term ‘D’ASTREE’ and therefore would not be able to differentiate the contested sign from the earlier marks appears farfetched bearing in mind that as explained above, the first name Vincent and its close equivalents, are likely to be understood as such throughout the EU. In any case, in the unlikely scenario that consumers would not understand the common word Vincent, as a first name, a conceptual comparison is irrelevant, or could even induce a conceptual dissimilarity, to the extent that consumers might understand other elements of the marks (‘San’ or ‘d’Astrée’, respectively), which bear different concepts. For the sake of the following analysis, the Board will retain the most likely scenario being that consumers will most likely understand the similar term as a common first name, and thus, to that extent, the signs are similar only to a low degree, insofar as they refer to different persons with a similar first name.

Distinctiveness of the earlier trade marks

50. The distinctive character of a trade mark, within the meaning of the EUTMR, means that that mark must serve to identify the goods or services in respect of which registration is sought as originating from a particular undertaking, and thus to distinguish them from those of other undertakings. The distinctiveness of a mark must be assessed, first, by reference to those goods or services and, second, by reference to the relevant public’s perception thereof, which consists of average consumers of the goods or services in question, who are reasonably well informed and reasonably observant and circumspect (10/10/2019, T‑700/18, Dungeons, EU:T:2019:739, § 57).

51. According to the opponent, the earlier marks enjoy a high degree of distinctiveness and reputation by virtue of their long-standing and intensive use among the relevant public, with regard to goods for which they are registered in Class 33.

52. The existence of a higher than average level of distinctiveness as a result of the public’s recognition of a mark on the market necessarily presupposes that at least a significant part of the relevant public is familiar with it, without it necessarily having to have a reputation within the meaning of Article 8(5) EUTMR. It is not possible to state in general terms, for example by referring to specific percentages relating to the degree of recognition attained by the mark within the relevant section of the public, that a mark has a highly distinctive character. Nevertheless, it must be acknowledged that there is certain interdependence between the public’s recognition of a mark and its distinctive character in that the more the mark is recognised by the target public; the more the distinctive character of that mark is strengthened. In order to assess whether a mark has a highly distinctive character as a result of the public’s recognition of it, all the relevant facts of the case must be taken into consideration, in particular the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (15/10/2020, T‑359/19, athlon custom sportswear, EU:T:2020:488, § 69; 08/05/2014, T‑38/13, Pedro, EU:T:2014:241, § 76).

53. In support of its claim of enhanced distinctiveness, the opponent submitted the evidence listed above at paragraph 6, page 5.

54. The Board shares the Opposition Division’s finding that the opponent failed to sufficiently demonstrate that its trade marks have an enhanced distinctiveness through their use in the eyes of the relevant consumers.

55. The documents filed consist of certificates issued by the Chambers of Commerce of Alava, Zamora and La Rioja. While the trade mark ‘SAN VICENTE’ is respectively considered as ‘known in the wine and hotel market’, ‘is widely known and reputed in the wine sector in the Spain national territory’ and ‘widely known and reputed in the Rioja wine sector’, the certificates do not indicate which criteria were considered in the assessment of reputation in these areas/territories. It could not be ascertained whether or not the means of reputation for the Spanish authority was the same as the means required by the Office and what types of documents were submitted by the opponent before the Chamber of Commerce, which may not be the same as those filed in these proceedings. It follows that these certificates – on their own – are not sufficient to prove the degree of public recognition of the earlier marks in the absence of other conclusive evidence.

56. Further, the opponent submitted decisions from the Spanish Patent and Trademark Office which are simply examples of successful oppositions against signs including the terms ‘SAN VICENTE’. However, the decisions merely state that ‘the grant of the captioned mark would imply the unduly use of the reputation of the Opponent’s trade marks’, without providing any indication of the documents submitted in the proceedings, the criteria that were assessed and any reasoning that the Board could take into consideration.

57. Furthermore, as the Opposition Division correctly stated that the Office is not bound by national decisions. The European Union trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it and applies independently of any national system (25/10/2007, C‑238/06 P, Plastikflaschenform, EU:C:2007:635, § 65‑66, 13/09/2010, T‑292/08, Often, EU:T:2010:399, § 84,

58. Finally, the tasting notes submitted by the opponent to prove that the denomination ‘SAN VICENTE’ has become a benchmark of quality in the alcoholic beverages sector is not sufficient to provide information on the public’s awareness of the earlier marks.

59. In light of the above, the assessment of the distinctiveness of the earlier marks as a whole will rest on their inherent distinctiveness. In the present case, from the perspective of the public in the relevant territory, the earlier trade marks as a whole have no meaning in relation to any of the goods at issue, and is thus endowed as a whole, with average inherent distinctiveness.

Overall assessment of the likelihood of confusion

60. According to the case-law of the Court of Justice, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion. It follows from the very wording of Article 8(1)(b) EUTMR that the concept of a likelihood of association is not an alternative to that of a likelihood of confusion, but serves to define its scope (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 29; 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 17).

61. A likelihood of confusion on the part of the public must be assessed globally. That global assessment implies some interdependence between the factors taken into account and in particular similarity between the trade marks and between the goods or services covered. Accordingly, a lesser degree of similarity between these goods or 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; 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 19). The more distinctive the earlier mark, the greater the risk of confusion, and marks with a highly distinctive character, either per se or because of the reputation they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 18).

62. As seen above, the opponent failed to sufficiently demonstrate that its trade marks have an enhanced distinctiveness through their use in the eyes of the relevant consumers. Therefore, the assessment as regards the distinctiveness of the earlier trade marks will rest on their inherent distinctiveness, which must be seen as average. However, in the Board’s view, even assuming a certain degree of enhanced distinctiveness, the outcome would not be affected.

63. In the case at hand, the goods have been found identical. They are directed at the public at large which displays an average degree of attention. As regards the signs, they have been found visually, aurally and conceptually similar to a low degree.

64. Despite the similarity of the elements ‘VICENTE’ and ‘VINCENT’, the relevant public will still be able to distinguish the marks at stake. As noticed by the Opposition Division, the relevant public cannot expect that only one producer will use such a common first name as an element of a trade mark (03/06/2015, T‑559/2013, GIOVANNI GALLI (fig.) / GIOVANNI, EU:T:2015:353, § 117, 08/02/2019, T‑647/17, CHIARA FERRAGNI (fig.) / Chiara, EU:T:2019:73, § 71).

65. Even assuming a certain degree of enhanced distinctiveness of the earlier mark, the signs cannot be confused or associated merely due to the presence of a similar widely used and known first name, since the additional terms, ‘SAN’ and ‘D’ASTREE’, are sufficient to clearly distinguish them. In particular, the contested mark will be perceived as a combination of a common first name and an unusual surname, in line with the common practice in the wine and alcoholic beverages sector. It follows that the surname ‘D’ASTREE’ will be perceived as the most distinctive element of the contested sign, which allows the relevant public to safely distinguish the signs at stake.

66. In light of all the foregoing, notwithstanding the principles of interdependence and imperfect recollection, even assuming a certain degree of enhanced distinctiveness of the earlier mark, the Board shares the findings of the contested decision that the differences between the signs are sufficient to counteract the similarity of the common names ‘VICENTE’ and ‘VINCENT’. Consumers have no reason to assume that any sign bearing a similar widely used and known first name, notwithstanding clearly differentiating elements such as those at issue, come from the same undertaking or, as the case may be, from undertakings that are economically linked.

67. Taking into account all of the above, it must be concluded that there is no likelihood of confusion on the part of the relevant public. The Opposition Division correctly excluded the existence of a likelihood of confusion between the marks and rightly rejected the opposition on the grounds of Article 8(1)(b) EUTMR with respect to the goods at issue.

68. Therefore, the contested decision is confirmed and the appeal dismissed.

Costs

69. Pursuant to Article 109(1) EUTMR and Article 18 EUTMIR, the opponent, as the losing party, must bear the applicant’s costs of the opposition and appeal proceedings.

70. As to the appeal proceedings these consist of the applicant’s costs of professional representation of EUR 550.

71. As to the opposition proceedings, the Opposition Division ordered the opponent to bear the applicant’s representation costs which were fixed at EUR 300. This decision remains unaffected. The total amount for both proceedings is therefore EUR 850.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Orders the opponent to pay EUR 550 for the applicant’s costs in the appeal proceedings. The total amount to be paid by the opponent in the opposition and appeal proceedings is EUR 850.

Signed G. Humphreys

Signed M. Bra

Signed A. Kralik

Registrar: Signed H.Dijkema