OPPOSITION No B 3 078 204

Envasados Eva S.A., Poligono Industrial 18, 31870 Lecumberri (Navarra), Spain (opponent), represented by Bermejo & Jacobsen Patentes-Marcas S.L., Av. de Europa 14, 28108 Alcobendas (Madrid), Spain (professional representative)

a g a i n s t

EvaQua s.r.o., Křižíkova 393/73, 18600 Praha 8 – Karlín, Czech Republic (applicant), represented by PatentCentrum Sedlák & Partners s.r.o., Okružní 2824, 37001 České Budějovice, Czech Republic (professional representative).

On 21/04/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 078 204 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 18 025 824 for the figurative sign . The opposition is based on, inter alia, European Union trade mark registration No 18 025 200 for the figurative mark . The opponent invoked Articles 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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 18 025 200 for the figurative mark as it is the most similar earlier mark to the contested sign.

1. The goods

The goods on which the opposition is based are, inter alia, the following:

Class 32: Beers; non-alcoholic beverages; mineral and aerated waters; fruit beverages and fruit juices; syrups and other non-alcoholic preparations for making beverages.

The contested goods are the following:

Class 32: Non-alcoholic beverages; preparations for making beverages; spring water; drinking water; seltzer waters; aerated beverages and other non-alcoholic drinks.

Some of the contested goods are identical to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark.

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 assumed to be identical are directed at the public at large. The degree of attention is average.

3. The signs

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 earlier mark is a figurative mark composed of the verbal element ‘eva’ depicted in slightly stylised, bold and black letters and placed against a greyish rectangular background.

The relevant public will perceive this verbal element as a female first given name because ‘Eva’ exists in various European Union languages, for example in English, German, Swedish, Danish, Slovak, Czech, Spanish, Italian, Dutch and Portuguese or it has very close equivalents, for instance ‘Éva’ in Hungarian or ‘Ewa’ in Polish. As it has no direct meaning for the goods in question, it is, therefore, distinctive.

Furthermore, the stylization of the letters in the earlier mark, its background and colours used therein serve decorative purposes and, therefore, their impact on the comparison is secondary.

The contested sign is a figurative mark composed of the verbal elements ‘ZEOLITE’, ‘WATER’ and ‘evaqua’ depicted in slightly stylised letters. The latter is placed against a background resembling a drop. It is very likely that the element in will be perceived as the letter ‘O’.

The verbal element ‘ZEOLITE’ will be understood by the English-speaking public as ‘any of a large group of minerals consisting of hydrated aluminosilicates of sodium, potassium, calcium, and barium’ (extracted from Oxford Dictionary at www.lexico.com on 14/04/2020). For the remaining part of the public it will be meaningless. In any case the verbal element ‘ZEOLITE’ is distinctive for the goods in question.

The verbal element ‘WATER’ will be understood by the English-speaking public as ‘a colorless, transparent, odorless liquid that forms the seas, lakes, rivers, and rain and is the basis of the fluids of living organisms’ (extracted from Oxford Dictionary at www.lexico.com on 14/04/2020). Bearing in mind that the relevant goods are beverages or are related to beverages, this element is at most very weak for these goods. For the remaining part of the public the verbal element ‘WATER’ will be meaningless. In this case it is, therefore, distinctive for the goods in question.

The verbal element ‘evaqua’ has no meaning as such. It is however quite likely that at least part of the relevant consumers, when perceiving this verbal element, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T 256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T 146/06, Aturion, EU:T:2008:33, § 58). Therefore, some part of the public in the relevant territory who understands the word ‘aqua’, for example the English-speaking public, will dissect it from the common sequence of ‘evaqua’. It is because the word ‘aqua’ means, inter alia, ‘water’ in English (extracted from Oxford Dictionary at www.lexico.com on 14/04/2020). This word has some very close equivalents in other EU languages, for instance in Spanish, that is, ‘agua’. Bearing in mind that the relevant goods are beverages or are related to beverages, this element is at most very weak for these goods. For the remaining part of the public the verbal element ‘aqua’ will be meaningless. In this case it is, therefore, distinctive for the goods in question. Furthermore, for some part of the costumers, whether or not they will perceive the word ‘aqua’, they can also see the word ‘eva’ in the contested sign. The above explanations concerning the verbal element ‘eva’ shall apply accordingly. Therefore, as it has no direct meaning for the goods in question, the verbal element ‘eva’ (in the element ‘evaqua’) is distinctive.

The figurative elements in the contested sign will be seen as drops. Taking into account the relevant goods which are beverages or are related to beverages, this element is weak for these goods.

Furthermore, the stylization of the letters in the contested sign and colours used therein serve decorative purposes and, therefore, their impact on the comparison is secondary.

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

Visually, the signs coincide in ‘eva’. However, they differ in ‘***qua’, ‘ZEOLITE’ and ‘WATER’ in the contested sign, and also in its figurative elements, stylisation of the letters and colours. They differ also in the background, stylisation of the letters and colours of the earlier mark. The earlier mark consists of three letters, whereas the contested sign has 18 letters (three words).

Therefore, the signs are visually similar to at most a very low degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‛eva’, present identically in both signs. The pronunciation differs in the sound of the letters ‛***qua’, ‘ZEOLITE’ and ‘WATER’ (the latter, if pronounced) of the contested sign, which have no counterparts in the earlier mark.

Therefore, the signs are aurally similar to at most a very low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. It should be underlined that the contested sign consists of verbal elements which could be associated with various meanings and of figurative elements that will be seen as drops. The signs can be associated with a similar meaning with regard to the verbal element ‘eva’ of the earlier mark and the part of the verbal element, ‘evaqua’, that is, ‘eva’, as well. Dissection of this verbal element in the contested sign would however require a further mental step from a consumer. Bearing all the above in mind, the signs are conceptually similar to a low degree. This is the best case scenario for the opponent. It is because when the public in the relevant will not dissect the verbal element ‘eva’ in the verbal element ‘evaqua’, the signs will not be conceptually similar, as only the earlier mark has a meaning.

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.

5. Global assessment, other arguments and conclusion

The Court has stated that likelihood of confusion must be appreciated globally, taking into account all the factors relevant to the circumstances of the case; this appreciation depends on numerous elements and, in particular, on the degree of recognition of the mark on the market, the association that the public might make between the two marks and the degree of similarity between the signs and the goods and services (11/11/1997, C 251/95, Sabèl, EU:C:1997:528, § 22).

The contested goods are assumed to be identical and they target the general public whose degree of attention is average. The signs are visually and aurally similar at most to a very low degree. Conceptually, they are either similar to a low degree or not similar (as explained above). Furthermore, the earlier mark has a normal degree of distinctiveness.

The signs are similar to the extent that they have in common the string of the letters ‘eva’ which represents the whole verbal element of the earlier mark and the first three letters in the verbal element ‘evaqua’ of the contested sign. Furthermore, it is important to mention that the earlier mark is very short as it consists only of three letters (one verbal element), whereas the contested sign consists 18 letters (three verbal elements). The contested sign contains additional verbal elements, which can be distinctive or distinctive at most to a very low degree. Furthermore, the signs differ in the background of the earlier mark, the figurative elements of the contested sign as well as in colours used in the signs in question. Although the latter play a secondary role in the comparison, they cannot be ignored in the global assessment.

The coincidence in the string of letters ‘eva’ (which requires a mental step from a consumer to dissect in the verbal element ‘evaqua’ of the contested sign) will not lead to a likelihood of confusion, even when the remaining elements of the contested sign are on the same footing in terms of distinctiveness. This is because in such a situation it is the overall graphical representation of the signs that brings to them a level of distinctiveness. In the case at hand the signs are completely differently arranged and graphically represented.

As seen from the above analysis, the contested sign has numerous elements, which taken as a whole lead to a quite different overall impression. It is clear from the consistent case-law that the appreciation of the visual, aural or conceptual similarity of the marks must be based on the overall impression created by them, bearing in mind, in particular, their distinctive and dominant components. The perception of marks in the mind of the average consumer of the category of goods in question plays a decisive role here. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 25; 06/10/2005, C‑120/04, Thomson Life, EU:C:2005:594, § 28).

As a general rule it should be indicated that 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, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

The opponent has also based its opposition on the following earlier trade marks:

- European Union trade mark registration No 8 776 304 for the figurative mark ,

- European Union trade mark registration No 18 025 205 for the figurative mark ,

- European Union trade mark registration No 18 025 206 for the figurative mark ,

- international registration No 715 442 designating the Benelux countries, Finland, Austria, Sweden, United Kingdom, Slovakia, Germany, Portugal, Croatia, Hungary, Denmark, Slovenia, Poland, Italy and France for the figurative mark ,

- Spanish trade mark registration No 1 562 074 for the figurative mark .

Since the mark, European Union trade mark registration No 18 025 205, is almost identical to the one that has been compared and covers the same or a narrower scope of goods, the outcome cannot be different with respect to goods for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods.

The other earlier rights invoked by the opponent are less similar to the contested mark. This is because they contain further figurative elements, that is European Union trade mark registration No 8 776 304, international registration No 715 442 designating the Benelux countries, Finland, Austria, Sweden, United Kingdom, Slovakia, Germany, Portugal, Croatia, Hungary, Denmark, Slovenia, Poland, Italy and France, and Spanish trade mark registration No 1 562 074, or an additional letter, namely European Union trade mark registration No 18 025 206, which are not present in the contested trade mark. Moreover, they cover the same or a narrower scope of the goods. Therefore, the outcome cannot be different with respect to goods for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on ground under Article 8(1)(a) EUTMR because the signs are obviously not identical.

The opponent refers to previous decisions of the Office to support its arguments (e.g. B 664 344 of 08/07/2008). However, the Office is not bound by its previous decisions as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In the present case, the previous cases referred to by the opponent are not relevant to the present proceedings as they concern different factual circumstances such as different trade marks. Therefore, this opponent’s claim must be set aside.

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

Vít MAHELKA

Michal KRUK

Chantal VAN RIEL

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.