OPPOSITION No B 3 088 542

Carina Gironella, C/Gran de Gracia, 213, 1º, 08012 Barcelona, Spain (opponent), represented by Net Craman Abogados, Comte de Salvatierra, nº10, 2º2ª, 08006 Barcelona, Spain (professional representative)

a g a i n s t

Pauric Duffy, Viela da Mina 5, 2710-695 Sintra, Portugal (applicant).

On 25/05/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 088 542 is rejected in its entirety.

2. The opponent bears the costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 18 042 806 for the figurative mark . The opposition is based on European Union trade mark registration No 17 011 826 for the word mark ‘OLIGEN’. The opponent invoked Article 8(1)(a) and (b) EUTMR.

1. The goods and services

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

Class 29: Oils and fats.

The contested goods and services are the following:

Class 3: Essential oils and aromatic extracts; toiletries; animal grooming preparations.

Class 5: Pharmaceuticals and natural remedies; medicated additives for animal foods; tobacco-free cigarettes for medical purposes; cachets for medicinal purposes; cachets for pharmaceutical purposes; medicines for veterinary purposes; medicinal healthcare preparations; medicated toiletry preparations; pharmaceutical preparations for veterinary use; pharmaceutical preparations for animals; nutritional supplements for veterinary use; feed supplements for veterinary use.

Class 30: Snack food products consisting of cereal products; multigrain-based snack foods; chocolate-based ready-to-eat food bars; cereal-based snack food; rice-based snack food; coffee-based beverages; chocolate-based beverages; coffee capsules; tea pods; chocolates; cereal bars and energy bars; sweets (candy), candy bars and chewing gum.

Class 31: Foodstuffs and fodder for animals.

Class 32: Soft drinks; beer and brewery products.

Class 33: Alcoholic beverages (except beer).

Class 42: Scientific technological services; science and technology services.

Class 44: Human healthcare services; animal healthcare services; agriculture, aquaculture, horticulture and forestry services.

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 and services

The opponent’s oils and fats are liquid (or solid) substances obtained from plants (or animals) which are used for cooking or seasoning foodstuffs.

The contested essential oils, inasmuch as they are classified in Class 3, are used in beauty care and perfumery. The aromatic extracts; toiletries; animal grooming preparations in Class 3 are used in beauty care to improve the appearance of humans or animals. In Class 5, the pharmaceutical and natural preparations (for humans and animals), and nutritional and feed supplements are used to treat or prevent disease, and tobacco-free cigarettes for medical purposes are used to help people stop smoking. Their natures and purposes are different from those of the opponent’s goods. The goods belong to different market sectors. The producers of the contested goods will not be manufacturing the opponent’s oils and fats. Distribution channels and the relevant public are also different.

The contested goods in Classes 30, 32 and 33 are snack foods and drinks, chocolates; sweets; candy bars; chewing gum; coffee-based beverages; chocolate-based beverages; coffee capsules; tea pods; alcoholic beverages (except beer). They are all food or beverages used for providing nutrition and quenching thirst. Although the use of the contested goods and the opponent’s goods by the same relevant public cannot be excluded, since they belong to the same foodstuff sector and they can all be found in supermarkets, the goods have different natures and methods of use and different commercial origins. They are neither complementary nor in competition.

Further, the contested foodstuffs and fodder for animals in Class 31 are not similar to the opponent’s oils and fats, as the latter are intended for human consumption and the contested goods are intended to be fed to animals. It is unusual on the market for the producers of foodstuffs and fodder for animals to produce foodstuffs for people. The goods therefore have a different purpose, they target different consumers, they usually originate from different producers and they are neither in competition with nor complementary to each other. Their distribution channels are different or, at the very least, the goods are available in different sections of large department stores.

Finally, the contested services, scientific technological services; science and technology services in Class 42 and human healthcare services; animal healthcare services; agriculture; aquaculture; horticulture and forestry services in Class 44, clearly have no link with the opponent’s goods. The goods and services have obviously different natures and purposes. They come from different manufacturers/providers and target different consumers.

Therefore, it is concluded that the contested goods and services are dissimilar to the opponent’s oils and fats. Their purposes, natures and methods of use are different. They are manufactured/provided by different undertakings and their distribution channels differ. They are neither complementary nor in competition.

2. Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods and services are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

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

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, she 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 (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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. In the present case, the applicant did not appoint a professional representative within the meaning of Article 120 EUTMR and therefore did not incur representation costs.

The Opposition Division

Martin MITURA

Anna BAKALARZ

Katarzyna ZANIECKA

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.