OPPOSITION Nо B 3 103 361

 

Melitta Single Portions GmbH & Co. KG, Marienstr. 88, 32425 Minden, Germany (opponent), represented by Frank Reese, Marienstr. 88, 32425 Minden, Germany (employee) 

 

a g a i n s t

 

Litea EOOD, rajon Severen, ul. Brezovska No 36, et. 4, 4003 Plovdiv, Bulgaria (applicant), represented by IP Consulting Ltd., 6-8, Mitropolit Kiril Vidinski Str., Entr. 8, Floor 2, Office 2, 1164 Sofia, Bulgaria (professional representative).

On 03/03/2021, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 103 361 is rejected in its entirety.

 

2.	The opponent bears the costs, fixed at EUR 300.

 

REASONS

 

The opponent filed an opposition against some of the goods of European Union trade mark application No 18 097 920 ‘Litea’ (word mark), namely against some of the goods in Class 30. After division of the application the opposition is now directed against all the goods. The opposition is based on European Union trade mark registration No 16 495 871, ‘LeTé’ (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 30: Tea.

The contested goods are the following:

 

Class 30: Coffee, teas and cocoa.

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.

 

Teas are identically contained in both lists of goods (including synonyms).

The contested goods coffee; cocoa are similar to the opponent's tea. The goods coincide in their method of use are in competition. Furthermore, they coincide in their distribution channels and end users.

 

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 considered to be average.

c) The signs

 

LeTé	Litea
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).

  

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

Although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a word sign, they will break it down into elements which, for them, suggest a specific meaning or which resemble words known to them (13/02/2007, T-256/04, Respicur, EU:T:2007:46, § 57).

In this regard, the opponent claims that the element ‘Té’ in the earlier mark means tea in French and the French-speaking public will not only recognize this term, but also the word ‘tea’ within the contested sign, since it is the English equivalent which will be understood, too. According to the opponent, this would lead to a high similarity between the signs.

The Opposition Division notes that, indeed, ‘té’ is not the French equivalent for tea, but rather the Spanish one. The French equivalent is ‘thé’, but in any event it is very likely that even French-speaking consumers will recognize ‘Té’ as a slight misspelling, especially taking into consideration that the preceding ‘Le’ is the French masculine article (meaning ‘the’). Nevertheless, and contrary to the opponent’s view, this cannot lead to the finding of any similarity, since ‘té’ (in the earlier mark) or ‘tea’ (in the contested sign), if perceived with this meaning, are non-distinctive for the goods in question.

In this context, it has to be reminded, that not only English ‘tea’, French ‘thé’ and Spanish ‘té’ are quite similar equivalents for the same term, but also German ‘Tee’, Dutch ‘Thee’ or Swedish ‘Te’ and many more in various parts of the relevant territory.

However, for some parts of the public, for example Greek- or Polish-speaking consumers the equivalent words for tea are ‘τσάι (tsai)’ or ‘herbata’ and, thus, at least a great part of these parts of the relevant public will not associate ‘té’ (in the earlier mark) or ‘tea’ (in the contested sign) with any meaning.

 

Therefore, for the purposes of this comparison and bearing in mind that similarities between signs are higher where the coincidences reside in distinctive elements, the Opposition Division will assess the signs from this perspective as this is the most advantageous scenario for the opponent, namely that the above elements are distinctive for all the relevant goods and services.

 

Both word marks have no meaning for the relevant public and are, therefore, distinctive.

 

Visually, the signs coincide in the string of letters ‘L*TE*’. However, they differ in their second letter I and E respectively, the additional letter A at the end of the contested mark and in its accent.

 

Therefore, the signs are similar to a low degree.

 

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the second syllable of the signs TE and in the first letter L. However, the first syllable in each sign differs in its respective vowels I and E. Furthermore, the contested sign has an additional syllable, leading to a difference in the number of syllables, namely two in the earlier mark and three in the contested sign.

 

Therefore, the signs are similar to a low 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. The signs are visually and aurally similar to a low degree, whereas the conceptual aspect does not influence the assessment of the similarity of the signs.

The earlier sign consist of four letters and/or two syllables. Although it does not constitute a ‘short sign’ sensu stricto, nevertheless, it is of a very limited length. In this context it has to be reminded that the length of signs may influence the effect of the differences between them. In principle, the shorter a sign, the more easily the public is able to perceive all its single elements. In contrast, the public is usually less aware of differences between longer signs.

Therefore, it can be held that, although the earlier mark coincides in three of its letters with the contested sign, nevertheless, the fact that the first syllables are composed of different vowels and that the contested sign has an additional letter (and syllable) will allow the public to be aware of the differences between the marks in conflict.

In this regard it has to be reminded that 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).

 

Considering all the above,  there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

 

This absence of a likelihood of confusion equally applies to the part of the public for which the elements TÉ and TEA are meaningful and, therefore, non-distinctive. This is because, as a result of the non-distinctive character of that element, that part of the public will perceive the signs as being even less similar. In particular, any conceptual coincidence between ‘TÉ’ and ‘TEA’, is not sufficient to establish any similarity, as said elements are non-distinctive and cannot indicate the commercial origin. In this case, the attention of the relevant public will be attracted by the additional fanciful verbal elements.

 

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, it 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, 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.

 

 

 

The Opposition Division

 

 

Anna BAKALARZ

Konstantinos MITROU

Renata COTTRELL

 

 

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.