OPPOSITION No B 3 105 697

Ricegrowers Limited, Yanco Avenue, 2705, Leeton, Australia (opponent), represented by CMS Hasche Sigle Partnerschaft von Rechtsanwälten und Steuerberatern mbB, Kranhaus 1, Im Zollhafen 18, 50678 Köln, Germany (professional representative)

a g a i n s t

Calrose Rice, 144 Tsaribrodska str., 3^rd floor, app. 6, 1309 Sofia, Bulgaria (applicant), represented by Hristo Plamenov Raychev, 40 Macedonia Blvd., floor 5, ap. 17, 1606 Sofia, Bulgaria (professional representative).

On 03/11/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 105 697 is upheld for all the contested goods.

2. European Union trade mark application No 18 115 808 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 18 115 808 . The opposition is based on German trade mark registration No 302 017 015 919 . The opponent invoked Article 8(1)(a) and (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: Rice; rice snacks.

The contested goods are the following:

Class 30: Rice; flavoured rices; natural rice [processed] for food for human consumption; natural rice flakes; glutinous rice; puffed rice; enriched rice; enriched rice [uncooked]; husked rice; rice mixes; milled rice for human consumption.

Rice is identically contained in both lists of goods, while the rest of contested goods are included in, or overlap with, the opponent’s rice. Consequently, the goods in conflict are identical.

b) The signs

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 trade mark symbol ‘TM’, depicted in very small letters in the contested sign, is an informative indication that the sign is a trade mark and is not part of the mark as such. Consequently, this will not be taken into consideration for the purposes of the comparison.

The signs fully coincide in their sole verbal element, ‘Sunwhite’, which is written in the same typeface. Moreover, the depiction of the figurative element, consisting of a sun patterned with lines, is identical and placed in the same position.

The verbal element of both signs, ‘Sunwhite’, would not be associated by the relevant public with a particular meaning more than the two basic English terms. Nonetheless, in the event a meaning were to be attributed, it would be immaterial. In this respect, the degree of distinctiveness of the signs’ verbal elements is irrelevant as they are the same in both marks. Since the signs are only differentiated by the different colour combinations of the different elements, these differences will not detract the consumers’ attention away from the verbal elements as such or the fact that the configuration of the signs as a whole is the same. The difference in colours, being black and white in the earlier mark, whereas they are blue, red and yellow in the contested sign, is less memorable than the coinciding verbal and figurative elements and configuration as a whole, since the public is used to seeing marks being used in both colour and black and white.

Consequently, the signs are visually at least highly similar, aurally identical and conceptually either identical, if the common element ‘Sunwhite’ were to convey a meaning, or if not, the conceptual aspect would not influence this assessment.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

c) Global assessment, other arguments and conclusion

In the present case, the goods are identical. The signs are visually at least highly similar and aurally identical since they share the same verbal and figurative elements in the same configuration and essentially only differ in their colours. This near identity between the signs implies that consumers, regardless of whether or not the coinciding verbal element ‘Sunwhite’ would be perceived as conveying any concept, will not be able to distinguish between them. Indeed, even if consumers were to recall the somewhat different colours of the signs, they would still be highly likely to perceive such differences as a mere variation of the same mark, and therefore attribute the same commercial origin to the goods offered for sale under those signs. This conclusion would hold true irrespective of the degree of distinctiveness of the coinciding verbal element ‘Sunwhite’, or of the earlier mark as a whole, and irrespective of the degree of attention paid by the relevant public at the time of purchasing the goods concerned.

Considering all the above, the Opposition Division finds that there is clear 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 302 017 015 919. It follows that the contested trade mark must be rejected for all the contested goods.

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(1)(a) EUTMR.

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

Beatrix STELTER

Gonzalo BILBAO TEJADA

Martin EBERL

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.