OPPOSITION No B 3 085 194

Recheio - Cash & Carry, S.A., Rua Actor António Silva, nº 7, 1649-033, Lisbon, Portugal (opponent), represented by Furtado - Marcas e Patentes, S.A., Avenida Duque de Ávila, 66-7º, 1050-083, Lisbon, Portugal (professional representative)

a g a i n s t

Mustafa Yüksel, Hirschweg 68, 51519 Odenthal, Germany (applicant).

On 24/03/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 085 194 is partially upheld, namely for the following contested goods:

Class 29: All the contested goods in this class, except for prepared insects and larvae.

Class 30: All the contested goods in this class, except for ice.

Class 31: All the contested goods in this class, except for foodstuffs and fodder for animals; bedding and litter for animals.

2. European Union trade mark application No 18 027 906 is rejected for the goods as reflected under 1. of this dictum. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 18 027 906 for the word mark ‘Gurmes’. The opposition is based on Portuguese trade mark registration No 445 205 for the figurative mark . The opponent invoked Article 8(1)(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.

a) The goods

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

Class 29: Canned food, including meat, fish, poultry, fruits and vegetables; preserved fruits and vegetables; meat, including fresh, smoked, salted, frozen and deep-frozen meat; fish, including fresh, smoked, salted, frozen and deep-frozen fish; seafood; edible fats, including olive oil; oils for food and frying oils; margarine; meats; sausages; eggs; milk, including milk products; jellies; compotes.

Class 30: Tea extracts; tea-based preparations; malt-based preparations; cocoa; preparations and drinks based on cocoa; chocolate; chocolate products; preparations and drinks based on chocolate; confectionery; sweets; chewing gum; bakery goods; bread; yeast; pastries; cookies, cakes, biscuits, wafers, toffees, puddings; edible ices; sherbets [ices]; frozen cakes; honey; honey substitutes; breakfast cereals; muesli; corn flakes; cereal bars; ready-to-eat cereals; cereal preparations; rice; noodles; food products made of rice, flour or cereals, also in the form of ready-to-eat meals; pizzas; sandwiches; mixtures of pasta and dough for prepared and ready-to-eat cakes; sauces; ketchup; flavouring or seasoning products; spices; condiments; mayonnaise; mustard; vinegar.

The contested goods belong to Classes 29, 30 and 31. The full list of the contested goods (which is not reproduced here due to its length) can be found in the notice of opposition, which can be accessed through https://euipo.europa.eu .

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

The term ‘including’, used both in the applicant’s and 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.

Contested goods in Class 29

The contested meats; dairy products and dairy substitutes; fish, seafood; edible oils and fats; birds eggs, processed fruits, fungi and vegetables (including nuts and pulses) in Class 29 are identical to the opponent’s goods in the same class, either because they are identically contained in both lists (including synonyms) or because the applicant’s goods in this class include, are included in, or overlap with, the opponent’s goods.

The contested sausage casings, natural or artificial are similar to the opponent’s sausages. These goods have the same purpose. They also coincide in producer, relevant public and distribution channels.

The contested molluscs, not live include a wide range of animals, such as squids, octopuses, clams, oysters, slugs and snails. They can have the same usual producers and purpose as the opponent’s fish. Furthermore, they can be distributed through the same channels and they target the same end consumers. Therefore, they are at least similar.

The contested soups and stocks are at least similar to the opponent’s meat since they can have the same purpose, namely to allay hunger and also have the same method of use and are addressed to the same public. The opponent’s meat can also be the main ingredient of soups and stocks. (04/05/2011, T-129/09, Apetito, EU:T:2011:193, § 12 and 29).

The contested meat extracts in Class 29 are similar to spices in Class 30 covered by the earlier mark as they have the same purpose. They usually coincide in producer, relevant public and distribution channels. Furthermore they are in competition.

The contested egg products are highly similar to the opponent's eggs. They have the same producers, relevant public and distribution channels. They can be complementary and in competition.

The contested prepared insects and larvae (which are for example edible small animals such as ants, beetles and crickets) have no relevant points in common with the opponent’s goods. These contested goods do not have the same or a similar nature as for example the opponent’s canned food, including meat, fish, poultry, fruits and vegetables in Class 29, as argued by the opponent, and all the more, they differ in nature from the opponent’s remaining goods. Although some of these goods may be sold in the same larger supermarkets, they are unlikely to be found in the same section or shelves. Furthermore, although they may share the same general purpose (satisfy hunger) they are not produced by the same undertakings as they require entirely different professional expertise and know-how. Therefore, they are dissimilar to the opponent’s goods in Classes 29 and 30.

Contested goods in Class 30

The contested ice creams; cocoa; salts, seasonings, flavourings and condiments, yeasts; bee products; bread; pastries, cakes, tarts and biscuits (cookies); cereal bars and energy bars; sweets (candy), chewing gum; bakery goods in Class 30 are identical to the opponent’s goods in the same class, either because they are identically contained in both lists (including synonyms) or because the applicant’s goods in this class include, are included in, or overlap with, the opponent’s goods.

The contested frozen yogurts and sorbets are at least similar to the opponent's edible ices. The goods may have the same methods of use and distribution channels. Furthermore, they may target the same public and be in competition with each other.

The contested coffee and coffee substitutes are similar to the opponent's cocoa. These goods may have the same methods of use and distribution channels. Furthermore, they may target the same public and be in competition with each other.

The contested teas and tea substitutes are highly similar to the opponent's tea-based preparations. These goods have the same purpose and also coincide in relevant public, distribution channels and method of use. Furthermore they are in competition.

Likewise the contested cocoa substitutes are highly similar to the opponent's cocoa. They coincide in producer, relevant public, distribution channels and method of use. Furthermore they are in competition.

The contested baking preparations are highly similar to the opponent's yeast. These goods have the same nature and distribution channels. Furthermore, they may be in competition with each other.

The contested sugars, natural sweeteners are similar to the opponent’s honey since these goods are distributed through the same outlets and target the same public. In addition, sugar and natural sweeteners on one side and and honey on the other are in competition with each other.

The contested sweet coatings and fillings are at least similar to the opponent’s confectionery since these goods commonly target the same public through the same distribution channels and are often produced by the same undertakings.

The contested marshmallow topping and the opponent’s sauces in Class 30 (which include sweet sauces such as chocolate sauces or various fruit sauces) are considered similar. They have the same or similar nature and purpose of use and they usually coincide in the relevant public and distribution channels.

All the contested goods

candy bars eight-treasure rice pudding; apple fritters ; flavoured sugar confectionery; meringues; biscotti dough; jam buns; bread pudding; sandwich spread made from chocolate and nuts; chocolate decorations for Christmas trees; cocoa based creams in the form of spreads; custard; dessert mousses [confectionery]; peanut brittle; chocolate based products; peanut confectionery; ice confectionery; dessert souffles; decorations [edible] for Christmas trees; edible rice paper; edible paper; viennoiserie; ready-to-eat puddings; crème caramel; deep-fried dough sticks (youtiao); fried dough twists; frozen yogurt pies; pavlovas made with hazelnuts; chocolate coated fruits; frozen confectionery containing ice cream; frozen confections on a stick; confectionery ices; frozen dairy confections; ginseng confectionery; semolina pudding; dried sugared cakes of rice flour (rakugan); salted wafer biscuits; fruit jellies [confectionery]; foodstuffs containing cocoa [as the main constituent]; boiled confectionery; halvah; Japanese sponge cakes (kasutera); instant dessert puddings; croissants; butterscotch chips; kheer mix (rice pudding); low-carbohydrate confectionery; dairy confectionery; herbal honey lozenges [confectionery]; chocolate flavoured confectionery; confectionery items coated with chocolate; cheese-flavored biscuits; liqueur chocolates; Turkish delight; almond confectionery; chocolate coated macadamia nuts; tablet (confectionary); aerated chocolate; marzipan; almonds covered in chocolate; hot chocolate mixes; creamed rice; marzipan substitutes; muesli desserts; mousse confections; chocolate-coated sugar confectionery; foods with a cocoa base; non-medicated confectionery in jelly form; non-medicated flour confectionery; non-medicated chocolate; non-medicated flour confectionery containing chocolate; non-medicated confectionery products; non-medicated confectionery containing milk; non-medicated confectionery in the shape of eggs; non-medicated flour confectionery coated with chocolate; non-medicated flour confectionery coated with imitation chocolate; non-medicated confectionery having a milk flavour; mint flavoured confectionery (non-medicated -); non-medicated mint confectionery; non-medicated flour confectionery containing imitation chocolate; non-medicated confectionery for use as part of a calorie controlled diet; non-medicated confectionery having toffee fillings; non-medicated confectionery containing chocolate; non-medicated chocolate confectionery; chocolate-coated nuts; nut confectionery; chocolate coated nougat bars; nougat; cakes of sugar-bounded millet or popped rice (okoshi); panettone; pandoro; poppadums; preparations for making of sugar confectionery; chocolate confectionery containing pralines; chocolates; pancakes; truffles (rum -) [confectionery]; bars of sweet jellied bean paste (yohkan); rice puddings containing sultanas and nutmeg; rice-based pudding dessert; puddings; chocolate; floating islands; savory biscuits; chocolate flavourings; chocolate spreads containing nuts; chocolate-based spreads; chocolate decorations for confectionery items; chocolate spreads for use on bread; chocolate for toppings; chocolate with alcohol; chocolate with Japanese horseradish; chocolate for confectionery and bread; foodstuffs containing chocolate [as the main constituent]; chocolate spreads; imitation chocolate; chocolate desserts; chocolate creams; chocolate bark containing ground coffee beans; chocolate confectionery having a praline flavour; chocolate fondue; chocolate vermicelli; chocolate mousses; chocolate marzipan; chocolate bunnies; chocolate topping; confectionery having liquid spirit fillings; confectionery having liquid fruit fillings; confectionery containing jelly; confectionery in frozen form; confectionery in liquid form; potato flour confectionery; orange based confectionery; panned sweets (non-medicated -); sweet pounded rice cakes (mochi-gashi); sweet bean jam coated with sugared-bean based soft shell [nerikiri]; sopapillas [fried bread]; sopapillas [fried pastries]; liquorice flavoured confectionery; fruited scones; taiyaki (Japanese fish-shaped cakes with various fillings); confectionery chips for baking; peanut butter confectionery chips; confectionery having wine fillings; confectionery containing jam; chocolate decorations for cakes; tiramisu; Korean traditional sweets and cookies [hankwa]; truffles [confectionery]; Turkish delight coated in chocolate; custards [baked desserts]; imitation custard; chocolate waffles; waffles; vla [custard]; prepared desserts [chocolate based]; prepared desserts [confectionery]; waffles with a chocolate coating; wafered pralines; soft pin-rolled cakes of pounded rice (gyuhi); snack foods consisting principally of confectionery; coated nuts [confectionery]; Yorkshire puddings; cocoa-based ingredients for confectionery products; cotton candy; confectionery for decorating Christmas trees; sugar-coated coffee beans; cinnamon rolls; brioches; crepes

are comprised in the category ‘baked goods, confectionery, chocolate and desserts’. The opponent’s goods include products (e.g. chocolate; chocolate products; confectionery; bakery goods; cookies, cakes, biscuits, wafers among others) belonging to the same category as the contested goods. Even if it cannot be excluded that some of the contested goods would coincide in numerous relevant criteria such as their nature, purpose, method of use, their complementarity, whether they are competing goods or that they are even identical, these goods clearly belong to homogeneous sectors of products on the market and all of them are - at least - produced by the same companies, target the same end user and are being sold through the same channels of distribution. Based on this conclusion, none of the contested goods can be considered dissimilar. It follows, therefore, that all the contested goods are at least similar to a low degree to the opponent’s goods.

Likewise all the contested goods

Processed grains , starches, and goods made thereof, oat clusters containing dried fruit; canapes; crackers flavoured with fruit; crackers; rice porridge; salt crackers; graham crackers; crumble; pineapple fritters; French toast; flavoured popcorn; snack food products consisting of cereal products; snack food products made from potato flour; snack foods prepared from maize; snacks manufactured from muesli; banana fritters; baozi [stuffed buns]; bibimbap [rice mixed with vegetables and beef]; flaky pastry containing ham; pretzels; bean jam buns; Frankfurter sandwiches; buckwheat jelly (memilmuk); burritos; calzones; chalupas; cheeseburgers [sandwiches]; chimichanga; chinese steamed dumplings (shumai, cooked); grain-based chips; crisps made of cereals; chow mein; chow mein [noodle-based dishes]; crackers flavoured with herbs; crackers flavoured with vegetables; crackers flavoured with meat; crackers made of prepared cereals; crackers flavoured with cheese; enchiladas; empanadas; egg pies; crackers flavoured with spices; chocolate-based ready-to-eat food bars; fajitas; pies containing meat; prepared meals containing [principally] pasta; prepared meals in the form of pizzas; rice-based prepared meals; pastries consisting of vegetables and fish; meat pies; fresh sausage rolls; fresh pizza; fresh pies; spring rolls; egg rolls; stir fried rice cake [topokki]; prawn crackers; chilled pizzas; freeze-dried dishes with the main ingredient being rice; freeze-dried dishes with the main ingredient being pasta; fried corn; frozen pastry stuffed with meat; vegetable pies; filled bread rolls; Chinese stuffed dumplings (gyoza, cooked); pasta containing stuffings; filled baguettes; frozen pastry stuffed with vegetables; pellet-shaped rice crackers (arare); rice based dishes; meals consisting primarily of pasta; corn, roasted; corn kernels being toasted; chips [cereal products]; toasted cheese sandwich with ham; toasted cheese sandwich; toasted sandwiches; cereal-based meal replacement bars; mincemeat pies; gimbap [Korean rice dish]; cereal-based snack food; hot sausage and ketchup in cut open bread rolls; hamburgers contained in bread rolls; hamburgers being cooked and contained in a bread roll; flapjacks; millet cakes; snack food products made from cereal flour; chicken wraps; chicken pies; hot dog sandwiches; snack food products made from rice flour; snack foods made from corn and in the form of rings; snack foods made from corn and in the form of puffs; snack foods made from corn; snack food products made from soya flour; puffed corn snacks; cereal snack foods flavoured with cheese; glutinous rice wrapped in bamboo leaves (zongzi); jiaozi [stuffed dumplings]; caramel coated popcorn with candied nuts; kimchijeon [fermented vegetable pancakes]; rice glue balls; cheese curls [snacks]; macaroni with cheese; sticky rice cakes (chapsalttock); pumpkin porridge (hobak-juk); stir-fried noodles with vegetables (japchae); glutinous pounded rice cake coated with bean powder (injeolmi); preserved pizzas; shrimp dumplings; lasagne; seaweed flavoured corn chips; corn chips; vegetable flavoured corn chips; macaroni salad; microwave popcorn; sandwiches containing fish fillet; sandwiches containing meat; steamed buns stuffed with minced meat (niku-manjuh); caramel coated popcorn; crackers filled with cheese; steamed buns stuffed with red bean paste; canned pasta foods; noodle-based prepared meals; nachos; mung bean pancakes (bindaetteok); pasta salad; okonomiyaki [Japanese savoury pancakes]; paella; pasta dishes; pies containing fish; pies; pastries consisting of vegetables and poultry; pastries consisting of vegetables and meat; pies [sweet or savoury]; pies containing poultry; pies containing vegetables; pies containing game; stir-fried rice; green onion pancake [pajeon]; pita chips; savory pastries; corn-based savoury snacks; cereal-based savoury snacks; prepared savory foodstuffs made from potato flour; pizza crust; pizza bases; prepared pizza meals; pizzas; candy coated popcorn; popcorn; puffed cheese balls [corn snacks]; pot pies; quesadillas; ravioli; ramen [japanese noodle-based dish]; quiches; rice dumplings dressed with sweet bean jam (ankoro); rice dumplings; prepared rice dishes; rice crisps; rice crusts; rice crackers; rice-based snack food; rice salad; rice biscuits; rice cakes; chocolate-coated rice cakes; risotto; samosas; sandwiches; sandwiches containing salad; sandwiches containing minced beef; sandwiches containing chicken; sandwiches containing fish; senbei [rice crackers]; pork pies; chocolate-based meal replacement bars; snack foods made from wheat; snack foods made of whole wheat; snack food products made from rusk flour; snack food products made from maize flour; snack food products made from cereal starch; multigrain-based snack foods; cheese flavored puffed corn snacks; spaghetti and meatballs; canned spaghetti in tomato sauce; extruded wheat snacks; sushi; sweet rice with nuts and jujubes (yaksik); tabbouleh; taco chips; tacos; tamales; frozen pizzas; frozen pastry stuffed with meat and vegetables; tortilla snacks; tortilla chips; tortillas; korean traditional rice cake [injeolmi]; dry and liquid ready-to-serve meals, mainly consisting of rice; dry and liquid ready-to-serve meals, mainly consisting of pasta; turkey sandwiches; pre-baked pizzas crusts; ready to eat savory snack foods made from maize meal formed by extrusion; boxed lunches consisting of rice, with added meat, fish or vegetables; processed unpopped popcorn; uncooked pizzas; prepared meals containing [principally] rice; meals consisting primarily of rice; frozen meals consisting primarily of rice; frozen meals consisting primarily of pasta; wonton chips; wontons; wraps [sandwich]; poultry and game meat pies; wholewheat crisps; soft pretzels; sausage rolls; meat pies [prepared]; prepared foodstuffs in the form of sauces; snack foods consisting principally of bread; ravioli [prepared]; pizzas [prepared]; pasta-based prepared meals; snack foods consisting principally of extruded cereals; pre-packaged lunches consisting primarily of rice, and also including meat, fish or vegetables; onion biscuits

are comprised in the following relevant categories: ‘processed grains, starches, and goods made thereof; convenience food and savory snacks’. The opponent’s goods include products (e.g. corn flakes; cereal preparations; food products made of rice, flour or cereals, also in the form of ready-to-eat meals; pizzas; sandwiches, among others) belonging to the same categories as the contested goods. Even if it cannot be excluded that some of the contested goods would coincide in numerous relevant criteria such as their nature, purpose, method of use, their complementarity, whether they are competing goods or that they are even identical, these goods clearly belong to homogeneous sectors of products on the market and the majority of them are - at least - produced by the same companies, target the same end user and are being sold through the same channels of distribution. Based on this conclusion, none of the contested goods can be considered dissimilar. It follows, therefore, that all the contested goods are at least similar to a low degree to the opponent’s goods.

However, the contested ice (which is to be understood as ‘cooling ice’) is dissimilar to the opponent’s goods in Classes 29 and 30. In spite of the fact that the opponent’s goods cover edible ices, these should be understood as a smooth, sweet and cold food prepared from a mixture of milk products and/or flavourings and often eaten as a snack or dessert. Therefore the purpose and distribution channels of the goods under comparison, including edible ices, are different, as is their nature. Furthermore, they are neither in competition nor complementary.

Contested goods in Class 31

The contested agricultural and aquacultural crops, horticulture and forestry products are similar to a low degree to the opponent’s preserved fruits and vegetables; fish in Class 29. The former goods are fresh ingredients which are necessary for the elaboration of the latter; thus, the goods under comparison are complementary. They can also be in competition with each other and despite the difference in their producers, they can be found in the same sales outlets (07/11/2019, R 839/2019-4, Native Coco BIO-KOKOSOL (fig.) / Nativa (fig.) et al § 24 and case law cited therein).

The contested live animals, organisms for breeding are similar to the opponent’s fish in Class 29 because these goods can coincide in producer and distribution channels. Therefore, they are similar to a low degree.

The contested foodstuffs and fodder for animals; bedding and litter for animals are dissimilar to all the goods covered by the earlier right in Classes 29 and 30, because they have nothing in common. They are of different natures and purposes. They do not follow the same method of use. They are not complementary nor are they in competition. They do not share the same distribution channels. They do not target the same end user. They are produced by different companies (10/12/2018, R 1162/2018-4, BenEstre / Benestare § 38)

b) 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 to varying degree are directed at the public at large whose degree of attention is generally average.

c) The signs

	Gurmes
Earlier trade mark	Contested sign

The relevant territory is Portugal.

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 contested sign is a word mark which consists of the word ‘Gurmes’, which has no meaning for the relevant public under analysis and is, therefore, distinctive.

The earlier mark is a figurative mark, consisting of the verbal element ‘GOURMES’ in upper case white letters depicted within a black rectangle and with a circumflex accent on the ‘E’. This verbal element has no meaning for the relevant public and is therefore distinctive. It is placed below an horizontal grey line and a figurative component also in grey that may be seen as a stylised depiction of two leaves. The black rectangle and the horizontal line are commonplace shapes used in labels and have, therefore, a purely decorative nature.

The leaves elements of the earlier mark allude to the organic or vegetable origin of the goods and have a weak distinctive character (11/09/2015, T-30/14, Bio Ingredients Végétaux Propre Fabrication, EU:T:2015:622, § 23).

Additionally it has to be borne in mind that, 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, T312/03, Selenium-Ace, EU:T:2005:289, § 37).

The earlier mark has no element that could be considered clearly more dominant than other elements.

Visually, the signs coincide in the string of letters ‘G(*)URMES’ which make up the entire contested sign and six letters (out of seven) of the most distinctive element of the earlier mark. They differ in the additional letter ‘O’ placed as second letter in the verbal element of the earlier mark and in the circumflex accent on the letter ‘E’, which however is visually barely noticeable. They also differ in the graphic depiction and figurative elements of the contested sign, but these elements have a limited impact on the comparison for the reasons given above.

In view of the above and given that the contested sign is entirely included in the earlier mark, the signs are visually similar at least to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘G(*)URMES’ present identically in both signs. However they differ in the sound of the additional vowel ‘O’ in the middle of the most distinctive element of the earlier mark. It is also likely that the tonic accent will be put on the last syllable of the earlier mark (due the circumflex accent on the letter ‘E’) while it is on the first syllable in the contested sign. Nevertheless, the rhythm and the intonation of the signs when pronounced are still similar.

Taking into account that the only difference between the signs lies in the sound of only one letter while the remaining sounds are identical and in the same order, the signs are aurally highly similar.

Conceptually, although the public in the relevant territory will perceive the meaning of the figurative element in the earlier mark, as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

d) 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 a weak element in the mark, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

According to settled case-law, the likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 16).

In the present case, the goods at issue have been found partly identical, partly similar to varying degrees and partly dissimilar. The relevant public is the public at large whose degree of attention is average. The earlier mark has a normal degree of distinctive character.

The signs are visually similar at least to an average degree and phonetically highly similar. From a conceptual perspective the signs are not similar, although limitedly to a weak element which has a limited impact for consumers, as explained above in section c). In particular, the contested sign is fully incorporated within the earlier mark’s distinctive element ‘GOURMÊS’ and the slight difference given by the additional letter ‘O’ could easily be overlooked or misheard by the relevant public.

Account is also 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).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s Portuguese trade mark registration.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to varying degrees to those of the earlier trade mark.

As regards the contested goods that have been found similar to a low degree to the opponent’s goods, it is recalled that 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 similarity between the signs is sufficient to counteract the low similarity between some of the goods under comparison, and a likelihood of confusion exists also in relation to them.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Michele M. BENEDETTI-ALOISI

Riccardo RAPONI

Andrea VALISA

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.