OPPOSITION No B 3 086 334

Eckes-Granini Austria GmbH, Pummerinfeld 1b, 4490 St. Florian, Austria (opponent), represented by Heinrich Prinz Reuss, Ludwig-Eckes-Platz 1, 55268 Nieder-Olm, Germany (employee representative)

a g a i n s t

Monville Sweden AB, BOX 29, SE-42921 Kullavik, Sweden (applicant).

On 25/03/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 086 334 is upheld for all the contested goods.

2. European Union trade mark application No 18 035 115 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 320.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 18 035 115 for the word mark ‘PANGO’. The opposition is based on international trade mark registration No 1 241 062 designating the European Union for the word mark ‘PAGO’. 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: Meat, fish, poultry and game; meat extracts; frozen, preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats.

Class 30: Coffee, tea, cocoa and artificial coffee; rice; tapioca, sago; flours and preparations made from cereals including cereal bars; bread, pastry and confectionery, filled and unfilled chocolates, chocolate products (not included in other classes), candies, fruit gum, chewing gum (except for medical purposes) and other sweets, ices; sugar, honey, treacle; yeast, baking powder; salt mustard; vinegar, sauces (condiments); spices; ice for refreshment.

Class 32: Beers; mineral waters and aerated waters and other non alcoholic beverages; lemonades; fruit beverages and fruit juices; beverages prepared using tea, fruit infusions and/or herbal infusions; syrups and other preparations for making beverages.

The contested goods are the following:

Class 32: Non-alcoholic beverages; beer and brewery products.

Class 33: Alcoholic beverages (except beer); cider.

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 32

Non-alcoholic beverages; beer are identically contained in both lists of goods.

The contested brewery products include, as a broader category, the opponent’s beers. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

Contested goods in Class 33

The contested alcoholic beverages (except beer) are similar to the opponent’s beers, as they have the same nature. These goods also target the same public through the same distribution channels and have the same commercial origin.

The contested cider is similar to the opponent’s beers, as they have the same nature. These goods also target the same public through the same distribution channels.

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 are directed at the public at large.

The degree of attention is average.

c) The signs

PAGO	PANGO
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). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

When assessing the similarity of the signs, an analysis is carried out to determine whether or not the signs bear some conceptual similarity, and if so, to what extent. It may be more difficult to establish that the public may be confused about origin when one sign bears an easily identifiable concept or when the signs under comparison bear different concepts.

The element ‘PAGO’ is meaningful in certain territories, for example in those countries where Spanish is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the Polish- and Swedish-speaking part of the public where the words ‘PAGO’ and ‘PANGO’ are meaningless and distinctive.

Visually and aurally, the signs coincide in the letters/sounds ‘PA*GO’, which constitute the entirety of the earlier mark. However, they differ in the additional letter/sound ‘N’ of the contested sign.

Therefore, the signs are visually and aurally similar to an average degree.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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.

e) Global assessment, other arguments and conclusion

The goods are partly identical and partly similar. They target the public at large with an average level of attentiveness.

The signs are visually and aurally similar to an average degree and the conceptual comparison is neutral. The earlier mark enjoys normal distinctiveness.

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). It is highly conceivable that the relevant consumer will overlook the only difference between the signs, namely the additional letter ‘N’ in the middle of the contested sign.

Considering all the above, there is a likelihood of confusion on the part of the Polish-and Swedish-speaking part of the public. 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.

Therefore, the opposition is well founded on the basis of the opponent’s international trade mark registration No 1 241 062 designating the European Union. It follows that the contested trade mark must be rejected for all the contested goods.

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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), the costs to be paid to the opponent are the opposition fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein. In the present case, the opponent did not appoint a professional representative within the meaning of Article 120 EUTMR and therefore did not incur representation costs.

The Opposition Division

Anna BAKALARZ

Katarzyna ZANIECKA

Martin INGESSON

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.