OPPOSITION Nо B 3 090 107

Egetürk Wurst- Und Fleischwarenfabrikation GmbH & Co. KG, Feldkasseler Weg 5, 50769 Köln, Germany (opponent), represented by Siebeke - Lange - Wilbert, Cecilienallee 42, 40474 Düsseldorf, Germany (professional representative)

a g a i n s t

Komi Edem Agbeviade, 895 Rue Des Rivieres, 62136 Lestrem, France (applicant)

On 23/04/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 090 107 is upheld for all the contested goods, namely:

Class 29: Ready cooked meals consisting wholly or substantially wholly of game; ready cooked meals consisting wholly or substantially wholly of meat; ready cooked meals consisting wholly or substantially wholly of poultry; ready cooked meals consisting primarily of turkey; ready cooked meals consisting primarily of chicken; cooked meals consisting principally of fish; cooked dish consisting primarily of chicken and ginseng (samgyetang); prepared meals consisting primarily of kebab; cooked meat dishes; processed seafood; cooked seafood.

2. European Union trade mark application No 18 048 709 is rejected for all the contested goods. It may proceed for the remaining goods.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

On 26/07/2019, the opponent filed an opposition against some of the goods of European Union trade mark application No 18 048 709 (figurative mark), namely against some of the goods in Class 29. The opposition is based on European Union trade mark registration No 13 806 153 ‘EGEM’ (word 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: Sausages and prepared meat products.

The contested goods are the following:

Class 29: Ready cooked meals consisting wholly or substantially wholly of game; ready cooked meals consisting wholly or substantially wholly of meat; ready cooked meals consisting wholly or substantially wholly of poultry; ready cooked meals consisting primarily of turkey; ready cooked meals consisting primarily of chicken; cooked meals consisting principally of fish; cooked dish consisting primarily of chicken and ginseng (samgyetang); prepared meals consisting primarily of kebab; cooked meat dishes; processed seafood; cooked seafood.

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 ready cooked meals consisting wholly or substantially wholly of game; ready cooked meals consisting wholly or substantially wholly of meat; ready cooked meals consisting wholly or substantially wholly of poultry; ready cooked meals consisting primarily of turkey; ready cooked meals consisting primarily of chicken; cooked dish consisting primarily of chicken and ginseng (samgyetang); prepared meals consisting primarily of kebab; cooked meat dishes comprise a broad range of prepared meals having different kinds of meats as the main ingredient. Therefore, they are all included in the broad category of the opponent’s prepared meat products. Consequently, they are identical.

The contested cooked meals consisting principally of fish; processed seafood; cooked seafood are similar to the opponent’s prepared meat products as they usually coincide in relevant public and methods of use. Furthermore, they are in competition.

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 and similar are directed at the public at large. The degree of attention is considered to be average.

c) The signs

EGEM
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 contested sign’s verbal element ‘maison’ will be perceived, inter alia, by the French-speaking consumers with the meaning of ‘a commercial or industrial company’ (information extracted from Larousse on 14/04/2021 at https://www.larousse.fr/dictionnaires/francais/maison/48725). This element has a low degree of distinctiveness since it merely refers to the establishment where the contested goods might be produced.

Consequently, since for the French-speaking consumers the abovementioned component has a limited differentiating impact due to its low degree of distinctiveness, the Opposition Division finds it appropriate to focus the comparison of the signs on this part of the public.

The signs’ verbal elements ‘EGEM’ and ‘EDEM’ do not convey any clear meaning for the relevant consumers. Therefore, they are distinctive.

The contested sign has no elements that can be considered more dominant (eye-catching) than others.

Visually and aurally, the signs coincide in the sequence of letters (and sounds) ‘E*EM’ whereas they differ in the signs’ respective second letters (and sound) ‘G/D’ and in the contested trade mark’s initial verbal element ‘MAISON’ (and its sound). The signs also differ visually in the stylisation of the contested sign.

Therefore, considering the above assessment on the degree of distinctiveness of the signs’ elements, they are visually and aurally similar to an average degree.

Conceptually, although the public in the relevant territory will perceive the meaning of the contested sign’s element ‘MAISON’ – which is distinctive to a low degree – 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.

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 appreciation of likelihood of confusion on the part of the public depends, inter alia, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified. It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors and, in particular, similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 20; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 24; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

For the purposes of that global appreciation, the average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. However, 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.

In the present case, the goods have been found partly identical and partly similar. They target the general public. The degree of attention is considered average.

The signs have been found visually and aurally similar to an average degree insofar as they coincide in the sequence of letters of the distinctive element ‘E*EM’ included in the earlier mark’s sole verbal element and the contested sign’s most distinctive verbal element.

The marks in conflict are not conceptually similar. However, this factor has a limited impact in the assessment of likelihood of confusion since the conceptual difference derives from an element with a low degree of distinctiveness.

Therefore, the Opposition Division considers that the differences between the signs are clearly not sufficient to outweigh the assessed similarities between them. Consequently, the relevant public, when encountering the signs in relation to identical or similar goods are likely to think that they come from the same undertaking or from economically linked undertakings.

Considering all the above, there is a likelihood of confusion on the part of the French-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 European Union registration No 13 806 153. It follows that the contested trade mark must be rejected for all the contested goods.

Finally, it must be stressed that the observations submitted by the applicant on 08/05/2020 cannot be taken into account in the above assessment, since they are not in the language of the proceedings.

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, they 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, 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.

The Opposition Division

Claudia ATTINÀ

Aldo BLASI

Chiara BORACE

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.