OPPOSITION No B 3 108 870

Adlon Brand GmbH & Co. KG, Kölnstr. 89, 52351 Düren, Germany (opponent), represented by Lenzing Gerber Stute Partnerschaftsgesellschaft von Patentanwälten m.b.B., Bahnstraße 9, 40212 Düsseldorf, Germany (professional representative)

a g a i n s t

ELEA GEA S.A., Skoura Laconias, 23100 Sparta, Greece (applicant).

On 30/11/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 108 870 is upheld for all the contested goods.

2. European Union trade mark application No 18 054 316 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 18 054 316 for the figurative mark . The opposition is based on, inter alia, German trade mark registration No 302 016 100 219 for the word mark ‘ADLON’. The opponent invoked Article 8(1)(b) EUTMR and also Article 8(5) EUTMR with regard to two other earlier rights invoked by the opponent.

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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s German trade mark registration No 302 016 100 219 for the word mark ‘ADLON’.

a) The goods

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

Class 29: Meat, fish, poultry and game, in particular as pates, charcuterie and frozen; preserved, dried, cooked and frozen fruits and vegetables; jellies, jams, eggs, milk and milk products; edible oils and fats; prepared meals and frozen foodstuffs consisting principally of meat, fish, game, poultry, pastry, eggs, milk; fruits and vegetables, preserved and fresh salads; bouillon concentrates.

The contested goods are the following:

Class 29: Edible oils and fats.

Edible oils and fats are identically contained in both lists.

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 are directed at the public at large. The degree of attention is average.

c) The signs

ADLON
Earlier trade mark	Contested sign

The relevant territory is Germany.

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 earlier mark is a word mark consisting of the verbal element ‘ADLON’, whereas the contested sign is a figurative sign consisting of the verbal element ‘Athlon’, depicted in rather standard title case font, and a figurative device resembling an accent, namely on the left top side.

The verbal elements ‘ADLON’ and ‘Athlon’ are meaningless and, therefore, distinctive.

The verbal element ‘Athlon’ in the contested sign is the dominant element as it is the most eye-catching.

Visually, the signs coincide in ‘A*LON’ of the earlier mark and ‘A**LON’ of the contested sign. However, they differ in the letter ‘*D***’ of the earlier mark and ‘*th***’ of the contested sign. Furthermore, the signs differ in a figurative element resembling an accent in the contested sign, namely .

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

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘A*LON’ of the earlier mark and ‘A**LON’ of the contested sign. The pronunciation differs in the sound of the letters ‘*D***’ of the earlier mark and ‘*th***’ of the contested sign. It should be however noted that these letters are pronounced similarly. The figurative elements are not subject to any pronunciation.

Therefore, the signs are aurally highly similar.

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.

For the sake of clarity, the reputation’s claim was raised by the opponent with regard to two other earlier rights.

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

The contested goods are identical. These goods target the public at large whose degree of attention is average.

The signs are visually similar to an above average degree and aurally highly similar. The conceptual comparison remains neutral. Furthermore, the earlier mark has a normal degree of distinctiveness.

The similarity between the signs resides in the coinciding letters ‘A*LON’ of the earlier mark and ‘A**LON’ of the contested sign. The main difference between the signs are the characters ‘*D***’ of the earlier mark and ‘*th***’ of the contested sign. Furthermore, they differ in the figurative element in the contested sign, which is in any case less dominant. The differences between the signs are clearly not capable to outweigh the visual and aural similarities between them.

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).

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s German trade mark registration No 302 016 100 219. It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier right, namely German trade mark registration No 302 016 100 219, leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(5) EUTMR, which was claimed in relation to two other earlier marks.

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, 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

Vít MAHELKA

Michal KRUK

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.