OPPOSITION No B 3 087 952

Cooperativa Central Aurora Alimentos, Jõao Martins, N°219 D, 89803-040, São Cristovão, Brazil (opponent), represented by Lerroux & Fernández-Pacheco, Claudio Coello, 124 4º, 28006 Madrid, Spain (professional representative)

a g a i n s t

Παρασκευας Πεττας, Ρηγα Φεραιου 190, 26221, Πατρα, Greece, and Αντωνιος Ξανθοπουλος, Αγιων Αποστολων 9, Θεσσαλονικη, Greece (applicants).

On 04/08/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 087 952 is partially upheld, namely for the following contested goods:

Class 29: All the goods in this Class.

Class 30: Imitation custard; fruit ice bars; confectionery in frozen form; frozen yogurt cakes; frozen confectionery containing ice cream; frozen dairy confections; frozen custards; soft ices; sherbet mixes; sorbet mixes [ices]; confectionery ices; bread flavoured with spices; pitta bread; bread casings filled with fruit; tortilla shells; malted bread mix; bagels; thin breadsticks; soft rolls [bread]; english muffins; baguettes; biscuits [sweet or savoury]; oat biscuits for human consumption; aperitif biscuits; jam filled brioches; multigrain bread; garlic bread; scones; currant bread; toasted bread; croûtons; toasts [biscuits]; thick breadsticks; bread rolls; bread and buns; low-salt bread; fruit breads; filled bread rolls; wholemeal bread; pumpernickel; flat bread; gluten-free bread; clear gums [confectionery]; cereal cakes for human consumption; rice cake snacks; salted biscuits; savory biscuits; waffles with a chocolate coating; chocolate waffles; bakery goods; potato flour confectionery; liquorice flavoured confectionery; orange based confectionery; confectionery having wine fillings; dairy confectionery; chocolate flavoured confectionery; confectionery items coated with chocolate; confectionery containing jelly; nut confectionery; confectionery having liquid spirit fillings; confectionery having liquid fruit fillings; confectionery containing jam; confectionery in liquid form; chocolate confectionery having a praline flavour; chocolate confectionery containing pralines; floating islands; chocolate desserts; prepared desserts [confectionery]; prepared desserts [chocolate based]; waffles; crème caramel; non-medicated flour confectionery; non-medicated flour confectionery containing imitation chocolate; non-medicated flour confectionery coated with imitation chocolate; non-medicated flour confectionery coated with chocolate; non-medicated flour confectionery containing chocolate; non-medicated confectionery containing milk; nonmedicated confectionery having toffee fillings; mint flavoured confectionery (nonmedicated -); non-medicated confectionery containing chocolate; non-medicated confectionery having a milk flavour; non-medicated confectionery in jelly form; nonmedicated chocolate confectionery; snack foods consisting principally of confectionery; mousse confections; dessert mousses [confectionery]; chocolate mousses; chocolate-coated nuts; coated nuts [confectionery]; viennoiserie; foods with a cocoa base; chocolate based products; aerated chocolate; tiramisu; fruit jellies [confectionery]; mixes for the preparation of bread; flour mixes; pizza mixes; flour mixtures for use in baking; wholemeal bread mixes; stuffing mixes containing bread; doughs, and mixes therefor; cocoa based creams in the form of spreads; cocoa ; instant cocoa powder; cocoa-based ingredients for confectionery products; custard; ice cream; none of the foregoing goods being made from powder; powders for making ice cream; dough mix; custard mixes; none of the foregoing goods being made from fish or other aquatic animals.

2. European Union trade mark application No 18 046 623 is rejected for all the above goods. It may proceed for the remaining goods, namely the following:

Class 30: Coffee based fillings; chocolate fillings for bakery products; chocolate-based fillings for cakes and pies; custard-based fillings for cakes and pies; icing; frostings; confectioners' glaze; chocolate flavoured coatings; mirror icing [mirror glaze]; castor sugar; candy decorations for cakes; chocolate creams; marzipan; chocolate marzipan; chocolate chips; chocolate for toppings; chocolate based fillings; chocolate topping; chocolate decorations for confectionery items; chocolate decorations for cakes; marzipan substitutes; table syrup; topping syrup; pancake syrup; glucose syrup for use in the manufacture of foods; glucose syrup for use as a texture improver for food; glucose syrup for use as a fermenting aid for food; glucose syrup for use as a sweetener for food; glucose syrup for use as a gelling agent for food; glucose syrup for use as a preservative for food; chocolate syrup; fructose syrup for use in the manufacture of foods; syrup for food; glucose syrups for food; flavouring syrups; chocolate syrups for the preparation of chocolate based beverages; natural sweeteners; glucose powder for food; sugar; brown sugar; foodstuffs made of a sweetener for making a dessert; foodstuffs made of a sweetener for sweetening desserts; foodstuffs made of sugar for sweetening desserts; foodstuffs made of sugar for making a dessert; liquid sugar; sugar substitutes; honey substitutes; chocolate powder; chocolate-based beverages; chocolates; edible ice powder for use in icing machines; mixtures for making frozen confections; mixtures for making water ices; mixtures for making ice cream confections; mixtures for making ice cream products; frosting mixes; ice cream mixes; instant ice cream mixes; oat cakes for human consumption; tea cakes; barm cakes; guar gum; chocolate bars; pralines; pralines made of chocolate; pralines with liquid filling; milk chocolate bars; milk chocolates; filled chocolate; chocolates in the form of pralines; cereal-based snack food; granola-based snack foods; snack bars containing a mixture of grains, nuts and dried fruit [confectionery]; granola-based snack bars; oat bars; cereal based energy bars; chocolate-coated bars; meringues; chocolate-based spreads; chocolate spreads containing nuts; biscotti dough; croissants; chocolate fondue; hot chocolate mixes; non-medicated chocolate; preparations for making of sugar confectionery; panettone; sandwich spread made from chocolate and nuts; chocolate spreads; wafered pralines; rice pudding; chocolate; chocolate spreads for use on bread; chocolate for confectionery and bread; chocolate with alcohol; liqueur chocolates; chocolate vermicelli; truffles [confectionery]; truffles (rum -) [confectionery]; foodstuffs containing cocoa [as the main constituent]; foodstuffs containing chocolate [as the main constituent]; imitation chocolate; peanut brittle; chocolate coated fruits; brownie mixes; ready-made sauces; pastry mixes; pancake mixes; cake batter; biscuit mixes; batter mixes; stuffing mixes [foodstuffs]; preparations for making bakery products; doughnut mixes; cake powder; instant pancake mixes; instant doughnut mixes; batters and mixes therefor; muffin mixes; cake mixes; dry seasoning mixes for stews; custard powder; powders for making ice cream; none of the foregoing goods being made from fish or other aquatic animals

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 18 046 623 for the figurative mark .
The opposition is based on European Union trade mark registration No 6 261 655 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.

1. The goods

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

Class 29: Pork; poultry, not live; beef; fish; game meat; milk; sour milk (laban); butter and other milk products; cheese; edible oils and fats; sausages; meat extract; food preserves.

Class 30: Pizzas; lasagne.

Following the limitation requested on 04/07/2019, the contested goods are the following:

Class 29: Edible oils and fats; butter oil; cooking oils; animal oils for food; savory butters; blended oil [for food]; organic coconut oil for culinary purposes; flavoured oils; seed butters; coconut butter; honey butter; cocoa butter for food; edible oils for glazing foodstuffs; edible oils for use in cooking foodstuffs; clarified butter; oils for food; coconut oil for food; maize oil for food; edible fats; sesame oil for food; coconut fat; nut oils; chia seed oil for food; linseed oils [edible]; olive oil; olive oil for food; extra virgin olive oil for food; animal fats for food; sunflower oil for food; palm kernel oil for food; canola oil; rape oil for food; fatty substances for the manufacture of edible fats; fat-containing mixtures for bread slices; suet for food; shortening; linseed oil for food; cooking fats; butter for use in cooking; corn fats; blended vegetable oils for culinary purposes; butter preparations; hardened oils for food; hardened oils [hydrogenated oil for food]; soybean oil; soya bean oil for food; soybean oil for cooking; concentrated butter; hydrogenated oils for food; palm oil for food; vegetable oils for food; vegetable fats for food; vegetable fats for cooking; ghee; powdered cream; blended butter; buttermilk; butter; buttercream; butter with herbs; margarine; cream [dairy products]; creamers for beverages; coffee whiteners consisting principally of dairy products; coffee creamer; coffee cream in the form of powder; non-dairy creamer; dairy-based whipped topping; milk beverages with cocoa; whipped cream; powdered milk; powdered milk for food purposes; butter substitutes; milk substitutes; whiteners [dairy] for beverages; artificial cream (dairy product substitutes); margarine substitutes; dairy products and dairy substitutes; processed fruits, fungi and vegetables (including nuts and pulses); jellies, jams, compotes, fruit and vegetable spreads; dried edible mushrooms; dried edible black fungi; dried bamboo fungus; dried shiitake mushrooms; dried fruit; dried truffles [edible fungi]; dried long net stinkhorn; peeled tomatoes; crystallized fruits; formed textured vegetable protein for use as a meat substitute; fruit preserves; processed vegetables; frozen vegetables; frozen fruits; fruits, tinned; canned sliced fruits; croquettes; vegetables, dried; vegetable powders; lecithin for culinary purposes; dried fruit mixes; mushrooms, preserved; mushrooms, prepared; pectin for culinary purposes; fruit pectin; fruit pulp; vegetable pate; vegetable puree; mushrooms puree; mashed potato; fruit purees; dips; fruit powders; instant mashed potato; tinned tomatoes; fruit jellies; glazed fruits; fruit, preserved; sliced fruit; fruit chips; jams; fruit marmalade; smetana [sour cream]; whipping cream; dairy spreads; none of the foregoing goods being made from fish or other aquatic animals.

Class 30: Imitation custard; coffee based fillings; chocolate fillings for bakery products; chocolate-based fillings for cakes and pies; custard-based fillings for cakes and pies; icing; frostings; confectioners' glaze; chocolate flavoured coatings; mirror icing [mirror glaze]; castor sugar; fondants [confectionery]; candy decorations for cakes; chocolate creams; marzipan; chocolate marzipan; confectionery chips for baking; chocolate chips; cocoa based creams in the form of spreads; chocolate for toppings; chocolate based fillings; chocolate topping; chocolate decorations for confectionery items; chocolate decorations for cakes; marzipan substitutes; table syrup; topping syrup; pancake syrup; glucose syrup for use in the manufacture of foods; glucose syrup for use as a texture improver for food; glucose syrup for use as a fermenting aid for food; glucose syrup for use as a sweetener for food; glucose syrup for use as a gelling agent for food; glucose syrup for use as a preservative for food; chocolate syrup; fructose syrup for use in the manufacture of foods; syrup for food; glucose syrups for food; flavouring syrups; chocolate syrups for the preparation of chocolate based beverages; natural sweeteners; glucose powder for food; sugar; brown sugar; foodstuffs made of a sweetener for making a dessert; foodstuffs made of a sweetener for sweetening desserts; foodstuffs made of sugar for sweetening desserts; foodstuffs made of sugar for making a dessert; liquid sugar; sugar substitutes; honey substitutes; cocoa; chocolate powder; chocolate-based beverages; chocolates; instant cocoa powder; edible ice powder for use in icing machines; sherbets [confectionery]; fruit ice bars; confectionery in frozen form; frozen yogurt cakes; frozen confectionery containing ice cream; frozen dairy confections; frozen custards; soft ices; sherbet mixes; sorbet mixes [ices]; mixtures for making frozen confections; mixtures for making water ices; mixtures for making ice cream confections; mixtures for making ice cream products; frosting mixes; ice cream mixes; confectionery ices; instant ice cream mixes; bread flavoured with spices; pitta bread; bread casings filled with fruit; tortilla shells; malted bread mix; oat cakes for human consumption; tea cakes; barm cakes; bagels; thin breadsticks; soft rolls [bread]; english muffins; baguettes; biscuits [sweet or savoury]; oat biscuits for human consumption; aperitif biscuits; jam filled brioches; multigrain bread; garlic bread; scones; currant bread; toasted bread; croûtons; toasts [biscuits]; thick breadsticks; bread rolls; bread and buns; low-salt bread; fruit breads; filled bread rolls; wholemeal bread; pumpernickel; flat bread; gluten-free bread; clear gums [confectionery]; guar gum; chocolate bars; pralines; pralines made of chocolate; pralines with liquid filling; milk chocolate bars; milk chocolates; filled chocolate; chocolates in the form of pralines; cereal cakes for human consumption; rice cake snacks; cereal-based snack food; granola-based snack foods; snack bars containing a mixture of grains, nuts and dried fruit [confectionery]; granola-based snack bars; oat bars; cereal based energy bars; chocolate-coated bars; salted biscuits; savory biscuits; waffles with a chocolate coating; chocolate waffles; meringues; bakery goods; potato flour confectionery; liquorice flavoured confectionery; orange based confectionery; confectionery having wine fillings; dairy confectionery; chocolate flavoured confectionery; confectionery items coated with chocolate; confectionery containing jelly; nut confectionery; confectionery having liquid spirit fillings; confectionery having liquid fruit fillings; confectionery containing jam; confectionery in liquid form; chocolate confectionery having a praline flavour; chocolate confectionery containing pralines; chocolate-based spreads; chocolate spreads containing nuts; floating islands; chocolate desserts; prepared desserts [confectionery]; prepared desserts [chocolate based]; biscotti dough; waffles; crème caramel; croissants; chocolate fondue; hot chocolate mixes; non-medicated flour confectionery; non-medicated flour confectionery containing imitation chocolate; non-medicated flour confectionery coated with imitation chocolate; non-medicated flour confectionery coated with chocolate; non-medicated flour confectionery containing chocolate; non-medicated confectionery containing milk; nonmedicated confectionery having toffee fillings; mint flavoured confectionery (nonmedicated -); non-medicated confectionery containing chocolate; non-medicated confectionery having a milk flavour; non-medicated confectionery in jelly form; nonmedicated chocolate confectionery; non-medicated chocolate; snack foods consisting principally of confectionery; mousse confections; dessert mousses [confectionery]; chocolate mousses; chocolate-coated nuts; coated nuts [confectionery]; preparations for making of sugar confectionery; panettone; sandwich spread made from chocolate and nuts; chocolate spreads; viennoiserie; wafered pralines; foods with a cocoa base; chocolate based products; rice pudding; chocolate; aerated chocolate; chocolate spreads for use on bread; chocolate for confectionery and bread; chocolate with alcohol; liqueur chocolates; cocoa-based ingredients for confectionery products; tiramisu; chocolate vermicelli; truffles [confectionery]; truffles (rum -) [confectionery]; foodstuffs containing cocoa [as the main constituent]; foodstuffs containing chocolate [as the main constituent]; imitation chocolate; peanut brittle; chocolate coated fruits; fruit jellies [confectionery]; mixes for the preparation of bread; brownie mixes; flour mixes; ready-made sauces; dough mix; pastry mixes; pancake mixes; cake batter; biscuit mixes; pizza mixes; batter mixes; stuffing mixes [foodstuffs]; preparations for making bakery products; custard mixes; doughnut mixes; cake powder; instant pancake mixes; flour mixtures for use in baking; instant doughnut mixes; wholemeal bread mixes; stuffing mixes containing bread; doughs, batters, and mixes therefor; muffin mixes; cake mixes; dry seasoning mixes for stews; custard; ice cream; custard powder; powders for making ice cream; none of the foregoing goods being made from powder; powders for making ice cream; none of the foregoing goods being made from fish or other aquatic animals.

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.

The contested goods in Class 29 are all identical or similar, to at least a low degree, to at least one of the following goods of the opponent: game meat; milk; butter and other milk products; edible oils and fats or food preserves in Class 29 or pizzas in Class 30.

Some of them have been found identical either because they are identically contained in both lists (including synonyms), for instance in the case of edible oils and fats, or because the opponent’s goods include, are included in, or overlap with, the contested goods, for instance, the contested cooking oils fall in the broad category of the opponent´s edible oils in the same Class 29, and the contested dips overlap with the earlier cheese.

Others have been found similar (to varying degrees). For instance, the contested whipped cream is similar to the opponent´s milk in the same Class 29, because it coincides in method of use and distribution channels/points of sale, and can originate from the same kind of undertakings. The contested jams are similar to a low degree to the opponent´s food preserves, since they coincide in distribution channels/points of sale, can be directed at the same consumers and originate from the same kind of undertakings.

Contested goods in Class 30

The contested coffee based fillings; chocolate fillings for bakery products; chocolate-based fillings for cakes and pies; custard-based fillings for cakes and pies; icing; frostings; confectioners' glaze; chocolate flavoured coatings; mirror icing [mirror glaze]; castor sugar; candy decorations for cakes; chocolate creams; marzipan; chocolate marzipan; chocolate chips; chocolate for toppings; chocolate based fillings; chocolate topping; chocolate decorations for confectionery items; chocolate decorations for cakes; marzipan substitutes; table syrup; topping syrup; pancake syrup; glucose syrup for use in the manufacture of foods; glucose syrup for use as a texture improver for food; glucose syrup for use as a fermenting aid for food; glucose syrup for use as a sweetener for food; glucose syrup for use as a gelling agent for food; glucose syrup for use as a preservative for food; chocolate syrup; fructose syrup for use in the manufacture of foods; syrup for food; glucose syrups for food; flavouring syrups; chocolate syrups for the preparation of chocolate based beverages; natural sweeteners; glucose powder for food; sugar; brown sugar; foodstuffs made of a sweetener for making a dessert; foodstuffs made of a sweetener for sweetening desserts; foodstuffs made of sugar for sweetening desserts; foodstuffs made of sugar for making a dessert; liquid sugar; sugar substitutes; honey substitutes; chocolate powder; chocolate-based beverages; chocolates; edible ice powder for use in icing machines; mixtures for making frozen confections; mixtures for making water ices; mixtures for making ice cream confections; mixtures for making ice cream products; frosting mixes; ice cream mixes; instant ice cream mixes; oat cakes for human consumption; tea cakes; barm cakes; guar gum; chocolate bars; pralines; pralines made of chocolate; pralines with liquid filling; milk chocolate bars; milk chocolates; filled chocolate; chocolates in the form of pralines; cereal-based snack food; granola-based snack foods; snack bars containing a mixture of grains, nuts and dried fruit [confectionery]; granola-based snack bars; oat bars; cereal based energy bars; chocolate-coated bars; meringues; chocolate-based spreads; chocolate spreads containing nuts; biscotti dough; croissants; chocolate fondue; hot chocolate mixes; non-medicated chocolate; preparations for making of sugar confectionery; panettone; sandwich spread made from chocolate and nuts; chocolate spreads; wafered pralines; rice pudding; chocolate; chocolate spreads for use on bread; chocolate for confectionery and bread; chocolate with alcohol; liqueur chocolates; chocolate vermicelli; truffles [confectionery]; truffles (rum -) [confectionery]; foodstuffs containing cocoa [as the main constituent]; foodstuffs containing chocolate [as the main constituent]; imitation chocolate; peanut brittle; chocolate coated fruits; brownie mixes; ready-made sauces; pastry mixes; pancake mixes; cake batter; biscuit mixes; batter mixes; stuffing mixes [foodstuffs]; preparations for making bakery products; doughnut mixes; cake powder; instant pancake mixes; instant doughnut mixes; batters and mixes therefor; muffin mixes; cake mixes; dry seasoning mixes for stews; custard powder; powders for making ice cream; none of the foregoing goods being made from fish or other aquatic animals are all dissimilar to the goods on which the opposition is based since, even if they may coincide in the fact that they are edible goods, they differ in purpose, method of use, are not found in the same parts of department stores or supermarkets, they are not directed at the same consumers, are neither complementary nor in competition and are not likely to originate from the same kind of undertakings.

The rest of the contested goods in this class are similar to varying degrees to at least one of the goods on which the opposition is based. For instance, the contested fondants [confectionery]; confectionery chips for baking; sherbets [confectionery]; confectionery in frozen form; frozen confectionery containing ice cream are similar to the opponent´s milk products in Class 29, since they coincide in purpose, can coincide in the same distribution channels/points of sale, and in the same areas of department stores or supermarkets. They are also in competition, are frequently directed at the same consumers and can originate from the same kind of undertakings. Also, the contested pizza mixes are similar to the earlier pizzas in Class 30, because they coincide in purpose, can be directed at the same consumers, are in competition and can be found in the same distribution channels/points of sale, and in the same areas of department stores or supermarkets.

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 found to be identical or similar to at least a low degree are directed at both, the public at large and professionals (e.g. chefs/cooks, or confectioners).

The degree of attention of attention paid by consumers during the purchase of the goods is deemed to vary from average to lower than average. A lower than average degree of attention is likely to be paid in relation to very cheap products, commonly purchased, such as bread (e.g. baguettes).

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 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 common element ‘aurora’/‘AURORA’ is meaningful for a significant part of the public in the European Union, where it can be perceived as having various meanings. For instance, ‘Aurora’ is a female´s name for the Spanish-speaking consumers and means, inter alia, ‘the dawn’ (i.e. the first light of the day) for the English-speaking consumers (See Collins English Dictionary at www.collinsdictionary.com). The figurative elements in both marks seem to represent a sun in the horizon, which will reinforce the concept of ‘the dawn’ referred to, for the English-speaking consumers.

The words ‘Premium Quality Products’ are English terms that indicate that the goods under the contested mark are excellent/the best (i.e. ‘premium’ meaning ‘best’, ‘quality’ meaning ‘class’ and ‘products’ meaning ‘goods). Therefore, since it is a clear reference to the characteristics of the goods (and evocative of positive qualities) this expression is considered non‑distinctive.

Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public, since from their perspective the differing words are of reduced impact for the reasons explained below.

The verbal element ‘aurora’/‘AURORA’ in the marks is of average distinctive character as it has no relation to the relevant goods. This is also the case for the figurative elements in the marks. The words ‘Premium Quality Products’ are void of distinctive character, for being a clear reference of the characteristics of the goods.

Therefore, the coinciding word is the only verbal element in the earlier mark and the only distinctive verbal element in the contested mark.

Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right and from top to bottom, which makes the part placed at the left/top of the sign (the initial part) the one that first catches the attention of the reader. It is, therefore, relevant to note that the coinciding word ‘aurora’, is the first element to read and to be pronounced in the contested mark, and the only one in the earlier mark. In addition, the differing words ‘Premium Quality Products’ are of reduced impact not only due to their position at the end of the contested mark, but also because of their non-distinctive character

The earlier mark has no element more dominant (visually eye-catching) than others. In the contested sign, the word ‘AURORA’ and the figurative elements are visually co-dominant, being the differing terms ‘Premium Quality Products’ of much smaller size and thinner typeface, and of very reduced visual impact.

Visually, the signs coincide in ‘aurora’/‘AURORA’ and in the fact that these words are accompanied by figurative elements containing a sphere (or part of it) and curved lines, which can be perceived as representing a sun in the horizon, although the colour and configuration is not the same in the marks. The signs also differ in colour, typeface and in the words ‘Premium Quality Products’ of the contested mark.

Taking into account the weight of each of the elements forming the marks for the reasons explained above (i.e. due to their position, distinctive character and visual impact), it is considered that the marks are visually similar to an average degree.

Aurally, since the words ‘Premium Quality Products’ are totally void of distinctive character, are positioned below and consequently, of reduced visual impact, , consumers are not likely to pronounce them when referring to the contested sign. Therefore, both marks will be referred to by pronouncing ‘aurora’ only, and are therefore aurally identical.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As both signs will be perceived as having the concept described above for ‘aurora’/’AURORA’, reinforced by the figurative elements in both marks, and differ in the concept of a non-distinctive element, the signs are conceptually at least highly similar.

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 goods compared are partly identical, partly similar (to varying degrees) and partly dissimilar. They are directed at both the public at large and professionals (e.g. chefs/cooks) and the degree of attention of attention paid by consumers during the purchase of the goods is deemed to vary from average to lower than average.

The signs are visually similar to an average degree, and aurally identical and conceptually at least highly similar. The earlier mark is of average distinctive character.

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).

The coincidences between the mark are found in the only verbal element of the earlier mark being entirely reproduced in the contested sign (despite the difference in typeface), in which it is the element of greater weight, for being the only distinctive verbal element, a co-dominant part of it and the first element perceived due to its position on the top. In this same line, it must be noted the differences between the marks are found in elements of reduced impact, for the various reasons explained in section c) above.

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, in this case 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).

The opponent refers to previous decisions of the Office to support its arguments. 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.

In the present case, likelihood of confusion is considered to exist between the signs in relation to the goods found to be identical or similar to at least a low degree. Since the previous cases referred to by the opponent do not contain information that could challenge the findings on dissimilarity of the goods found to be dissimilar in section a) above, they are considered irrelevant, and they are set aside.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the English-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 or similar to those of the earlier trade mark. As regards the goods that are similar to a low degree, it must be kept in mind 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 assessed degree of similarities between the signs is clearly sufficient to offset the low degree of similarity between some of the goods.

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

Marta GARCÍA COLLADO

María del Carmen SUCH SANCHEZ

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.