OPPOSITION No B 3 085 804

Coopaman Sociedad Cooperativa Limitada, c/ General Borrero nº 45, 16660, Las Pedroñeras (Cuenca), Spain (opponent), represented by Peleato Patentes y Marcas, S.L., Plaza del Pilar 12 1º 1ª, 50003, Zaragoza, Spain (professional representative)

a g a i n s t

ΚΟΣΙΑΒΑΣ-ΚΟΥΖΙΩΚΑΣ ΑΕΒΕ Α' ΒΙΠΕ ΒΟΛΟΥ - Ο.Τ. 24 - 38500 ΜΑΓΝΗΣΙΑΣ, Greece (Κossiavas-Kouziokas ΑΕΒΕ, 1^st Industrial Zone of Volos, - Ο.Τ. 24 – 38500, Magnesia, Greece) (applicant), represented by Niki Christakou, Asklipiou 141, 11472, Athens, Greece (professional representative).

On 30/03/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 085 804 is partially upheld, namely for the following contested goods:

Class 29: Mixed vegetables; preserved vegetables (in oil); processed vegetables; prepared meals consisting principally of vegetables; prepared vegetable dishes; pre-cut vegetables; frozen vegetables; cut vegetables; canned sliced vegetables; vegetables, cooked; vegetables, dried; pre-cut vegetables for salads; vegetables, preserved; pickled vegetables; vegetable-based snack foods; dried fruit; fruit preserves; fruit desserts; frozen fruits; canned sliced fruits; cooked fruits; dried fruit-based snacks; fruit-based snack food; candied fruit snacks; fruit jellies; fruit, preserved; cooked olives; olives, preserved; olives, [prepared]; stuffed olives.

Class 31: Fresh fruits and vegetables; vegetables, fresh; olives, fresh.

2. European Union trade mark application No 18 033 622 is rejected for all the above goods. 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 18 033 622 for the figurative mark . The opposition is based on European Union trade mark registration No 16 132 367 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: Prepared garlic, preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk and milk products; edible oils and fats.

Class 31: Agricultural, horticultural and forestry products, in particular garlic; raw and unprocessed grains and seeds; fresh fruits and vegetables.

Class 35: Wholesaling, retailing in shops and retailing via global computer networks of prepared garlic, preserved, frozen, dried and cooked fruits and vegetables, jellies, jams, compotes, eggs, milk and milk products, edible oils and fats, agricultural, horticultural and forestry products, in particular garlic, raw and unprocessed grains and seeds, and fresh fruits and vegetables; advertising; import and export services; business administration relating to franchise-issuing.

The contested goods are the following:

Class 29: Prepared vegetable dishes; instant stew; stews; canned cooked meat; bottled cooked meat; cooked chicken; frozen chicken; frozen cooked fish; prepared meals made from meat [meat predominating]; ready cooked meals consisting wholly or substantially wholly of meat; prepared dishes consisting principally of meat; prepared meat; frozen meals consisting primarily of meat; meats; meat boiled down in soy sauce (tsukudani meat); meat, preserved; dried meat; meat-based snack foods; poultry, not live; fried meat; roast meat; boiled and dried fish; processed fish products for human consumption; prepared meals consisting primarily of fish; prepared dishes consisting primarily of fishcakes, vegetables, boiled eggs, and broth (oden); frozen meals consisting primarily of fish; cooked fish; fish products being frozen; fish-based foodstuffs; fish, preserved; chilled meals made from fish; mixed vegetables; preserved vegetables (in oil); processed vegetables; prepared meals consisting principally of vegetables; pre-cut vegetables; frozen vegetables; cut vegetables; canned sliced vegetables; vegetables, cooked; vegetables, dried; pre-cut vegetables for salads; vegetables, preserved; pickled vegetables; vegetable-based snack foods; dried fruit; fruit preserves; fruit desserts; frozen fruits; canned sliced fruits; cooked fruits; dried fruit-based snacks; fruit-based snack food; candied fruit snacks; fruit jellies; fruit, preserved; cooked olives; olives, preserved; olives, [prepared]; stuffed olives; smoked meats.

Class 30: Dry and liquid ready-to-serve meals, mainly consisting of pasta; cooked rice; frozen prepared rice; boxed lunches consisting of rice, with added meat, fish or vegetables; frozen pastry stuffed with meat and vegetables; pastries consisting of vegetables and meat; pastries consisting of vegetables and poultry; non-meat pies; pre-packaged lunches consisting primarily of rice, and also including meat, fish or vegetables; pies containing vegetables.

Class 31: Fresh fruits and vegetables; vegetables, fresh; olives, fresh.

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 processed vegetables overlap with the earlier dried vegetables. Therefore, they are identical.

Frozen fruits; dried fruit; vegetables, dried; cooked fruits; fruit, preserved; vegetables, preserved; vegetables, cooked; frozen vegetables are identically contained in both lists of goods (including synonyms).

The contested dried fruit-based snacks overlap with the earlier dried fruits. Therefore, they are identical.

The contested fruit jellies are included in the broad category of the earlier jellies. Therefore, they are identical.

The contested fruit preserves; canned sliced fruits are included in the broad category of the earlier preserved fruits. Therefore, they are identical.

The contested cooked olives are included in the broad category of the earlier cooked vegetables. Therefore, they are identical.

The contested fruit desserts; fruit-based snack food; candied fruit snacks overlap with the earlier preserved fruits. Therefore, they are identical.

The contested preserved vegetables (in oil); pickled vegetables; olives, preserved are included in the broad category of the earlier preserved vegetables. Therefore, they are identical.

The contested mixed vegetables; prepared vegetable dishes; prepared meals consisting principally of vegetables; pre-cut vegetables; cut vegetables; canned sliced vegetables; pre-cut vegetables for salads; vegetable-based snack foods; olives, [prepared]; stuffed olives overlap with the earlier preserved vegetables. Therefore, they are identical.

The contested meats are similar to a low degree to the earlier eggs because they coincide in distribution channels, relevant public and producer.

The contested instant stew; stews; canned cooked meat; bottled cooked meat; cooked chicken; frozen chicken; frozen cooked fish; prepared meals made from meat [meat predominating]; ready cooked meals consisting wholly or substantially wholly of meat; prepared dishes consisting principally of meat; prepared meat; frozen meals consisting primarily of meat; meat boiled down in soy sauce (tsukudani meat); meat, preserved; dried meat; meat-based snack foods; poultry, not live; fried meat; roast meat; boiled and dried fish; processed fish products for human consumption; prepared meals consisting primarily of fish; prepared dishes consisting primarily of fishcakes, vegetables, boiled eggs, and broth (oden); frozen meals consisting primarily of fish; cooked fish; fish products being frozen; fish-based foodstuffs; fish, preserved; chilled meals made from fish; smoked meats are dissimilar to all the goods and services covered by the earlier right because they have nothing in common. Their natures, purposes and methods of use are different. They do not coincide in their producer/provider and do not share the same distribution channels. Furthermore, these goods are neither complementary nor in competition and they target different end users.

Contested goods in Class 30

The contested dry and liquid ready-to-serve meals, mainly consisting of pasta; cooked rice; frozen prepared rice; boxed lunches consisting of rice, with added meat, fish or vegetables; frozen pastry stuffed with meat and vegetables; pastries consisting of vegetables and meat; pastries consisting of vegetables and poultry; non-meat pies; pre-packaged lunches consisting primarily of rice, and also including meat, fish or vegetables; pies containing vegetables are dissimilar to all the goods and services covered by the earlier right because they have nothing in common. Their natures, purposes and methods of use are different. They do not coincide in their producer/provider and do not share the same distribution channels. Furthermore, these goods are neither complementary nor in competition and they target different end users.

Contested goods in Class 31

The contested olives, fresh are included in the broad category of the earlier fresh vegetables. Therefore, they are identical.

Vegetables, fresh; fresh fruits and vegetables are identically contained in both lists of goods (including synonyms).

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 a low degree are directed at the public at large.

The degree of attention is considered to be average.

c) 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 unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The verbal elements of the signs are not meaningful in certain territories, for example in those countries where English is not understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on, for instance, the Bulgarian and the Lithuanian-speaking part of the public.

The earlier mark is a figurative mark consisting of the verbal element ‘coopaman’ depicted using lower case white letters placed on an oval dark grey background with a light grey outline. On the left it lies a figurative element made of two mirroring halves in dark and light grey which reminds of the shape of a garlic bulb.

The contested mark is also a figurative mark. It consists of the word ‘COOKMAN’ depicted using fanciful blue capital letters underlined by a double line and above which a figurative element lies. This elements consist of the stylized depiction of the upper part of the figure of a cook with moustaches and wearing a chef’s hat keeping in his arms a pot containing foodstuff. This figurative element is encircled in its upper part within an oval shape.

The verbal elements of the marks have no meaning for the relevant public and are, therefore, distinctive.

The figurative elements of both sign makes reference, to a certain extent, to foodstuffs and their preparation. Bearing in mind that the relevant goods are all foodstuffs, these elements are weak.

The marks in dispute have no element that could be considered clearly more dominant than other elements.

Also, account must be taken of the fact 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, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37).

Visually, the signs coincide in first three letters ‘COO’ and the last three letters ‘MAN’ of the words ‘COOPAMAN’ and ‘COOKMAN, although, it must be kept in mind, reproduced using different typefaces. The signs differ in the central letters ‘PA’ of the earlier mark’s verbal element and ‘K’ of the contested sign’s verbal element and in the figurative elements of both sign, which are, for the reasons explained above, weak elements.

Therefore, the signs are visually similar to a 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 ‘COO—MAN’, present identically in both signs’ distinctive elements ‘COOPAMAN’ and ‘COOKMAN’. The pronunciation differs in the sound of the letters ‘PA’ placed in the middle of the earlier mark’s verbal element and in the sound of the letter ‘K’ placed in the middle of the contested sign’s verbal element.

Therefore, the signs are aurally similar to, at least, an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs will be associated with a dissimilar meaning due to a semantic content contained in their figurative elements, the signs are conceptually not similar.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

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

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 (judgment of 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).

The goods in Classes 29, 30 and 31 covered by the contested application have been found partly identical, partly similar to a low degree and partly dissimilar to the goods and services covered by the earlier mark. The goods are directed at the public at large whose degree of attention is considered to be average.

The signs are similar to an average degree from an aural perspective and visually similar to a low degree. In fact, the verbal elements of the signs are very similar, since they share most of their letters, namely the first three and the last three, placed in the same order. The differences in their verbal elements are limited to, respectively, two letters and one letter placed in the middle of the signs. Also, the signs differ due to the presence of figurative element which are, nevertheless, weak.

Account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

Also, 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).

Due to the visual and aural similarity and the absence of any dominant or non‑distinctive elements in the signs, a likelihood of confusion exists.

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T 104/01, Fifties, EU:T:2002:262, § 49).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public who does not speak English, such as the Bulgarian- and the Lithuanian-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

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

The opposition is not successful insofar as the goods that are similar to a low degree are concerned, since it is the opinion of the Opposition Division that the moderate similarity of signs does not outweigh the low degree of similarity of some of the goods, namely meats in Class 29.

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

Riccardo RAPONI

Andrea VALISA

Aldo BLASI

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.