OPPOSITION Nо B 3 108 943

Rauch Fruchtsäfte GmbH, Langgasse 1, 6830 Rankweil, Austria (opponent), represented by Michael Konzett, Fohrenburgstr. 4, 6700 Bludenz, Austria (professional representative)

a g a i n s t

Brave Drinks Ltd, Maneesikatu 1 I 38, 00170 Helsinki, Finland (applicant), represented by BLF Attorneys Inc., Huhtalantie 2, 62200 Seinäjoki, Finland (professional representative).

On 04/06/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 108 943 is upheld for all the contested goods.

2. European Union trade mark application No 18 143 307 is rejected in its entirety.

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

REASONS

On 15/01/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 143 307 (figurative mark). The opposition is based on, inter alia, international trade mark registration designating, inter alia, Italy, No 1 273 341, (figurative mark). In relation to this earlier mark, the opponent invoked Article 8(1)(b) and Article 8(5) 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.

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 international trade mark registration designating Italy No 1 273 341.

a) The goods

The goods on which the opposition is based are, inter alia, the following:

Class 32: Beers; minerals and aerated waters; non-alcoholic beverages; fruit beverages and fruit juices; nectars; fruit nectars; fruit nectar beverages; vegetable drinks and vegetable juices; syrups and other preparations for making beverages; energy drinks; lemonades; non-alcoholic beverages, in particular with fruit flavoring; smoothies; flavored water-based beverages; water-based beverages; coconut juice; coconut water; tomato juice (beverages); non-alcoholic beverages made with fruits; non alcoholic fruit extracts; fruit juice concentrate; cocktails, non-alcoholic; isotonic drinks; non-alcoholic beverages with coffee components or a coffee flavor, non-alcoholic energy drinks with coffee components or a coffee flavor; must; non-alcoholic aperitifs; non-alcoholic beverages consisting of coconut juice or with coconut juice flavoring or with coconut flavoring; whey beverages; non-alcoholic beverages with tea flavor; coffee flavored soft drinks; non-alcoholic beverages with fruit flavoring; non-alcoholic beverages containing fruits or fruit extracts; fruit drinks; apple juice (sweetened fruit juice); non-alcoholic cider; non-alcoholic beverages with tea flavor; non-alcoholic beverages containing tea or tea extracts; non-alcoholic beverages containing coffee or coffee extracts.

The contested goods are the following:

Class 32: Non-alcoholic beverages; flavoured carbonated beverages; carbonated non-alcoholic drinks; cola; cola drinks; colas [soft drinks]; fruit flavored soft drinks; lemonades; low-calorie soft drinks; non-alcoholic flavored carbonated beverages; non-alcoholic soda beverages flavoured with tea; carbohydrate drinks; energy drinks; energy drinks [not for medical purposes]; energy drinks containing caffeine; fruit-based soft drinks flavored with tea; non-alcoholic sparkling fruit juice drinks.

The contested non-alcoholic beverages; flavoured carbonated beverages; carbonated non-alcoholic drinks; cola; cola drinks; colas [soft drinks]; fruit flavored soft drinks; lemonades; low-calorie soft drinks; non-alcoholic flavored carbonated beverages; non-alcoholic soda beverages flavoured with tea; carbohydrate drinks; energy drinks; energy drinks [not for medical purposes]; energy drinks containing caffeine; fruit-based soft drinks flavored with tea; non-alcoholic sparkling fruit juice drinks are identical to the opponent’s non-alcoholic beverages; non-alcoholic beverages with tea flavor, either because they are identically contained in both lists or because the opponent’s goods include, or overlap with, the contested goods.

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

Earlier trade mark	Contested sign

The relevant territory is Italy.

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’s only verbal element is the Italian word ‘bravo’, meaning ‘good, capable, nice’ (information extracted from Treccani Dictionary on 01/06/2021 at https://www.treccani.it/vocabolario/ricerca/bravo/). Although ‘bravo’ implies a positive connotation, it cannot be considered laudatory (and consequently weak or non-distinctive) in relation to the opponent’s relevant goods in Class 32, which are non-alcoholic beverages. This is because it is an adjective that describes the qualities of a person, or is an expression of approval used for performances, events or happenings, and people’s behaviour or actions. It is not used in relation to products.

The contested sign’s verbal element ‘BRAVE’ is the feminine plural form of ‘bravo’. Therefore, the same considerations as mentioned above equally apply. Therefore, it has a normal degree of distinctiveness.

The contested sign’s verbal element ‘LIGHT’ is an English word, which often appears on non-alcoholic beverage labels in Italy. It will be understood as referring to a product that has a lower calorie content. Bearing in mind that the relevant goods are non-alcoholic beverages, this element is non-distinctive.

The earlier mark is a figurative mark, which includes a red oval label encompassing the verbal element ‘bravo’. The relevant public will perceive it as a decorative label, intended to embellish the sign and draw attention to the element ‘bravo’, to which consumers will instantly afford more trade mark significance.

The contested sign also includes a figurative element, namely a black question mark. This symbol is a typographical symbol that is not perceived by the relevant public as indicating origin. Therefore, it is non-distinctive. The depiction of a globe that replaces the dot of the question mark is commonly used as an icon for internationalisation. Consequently, the relevant public will perceive this figurative element as alluding to the world and, accordingly, as a reference to the worldwide nature of the contested goods. Therefore, it has a reduced degree of distinctiveness.

The signs have no element that could be considered clearly more dominant than other elements.

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, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Visually, the signs coincide in the letters ‘brav*’. However, they differ in the last letter of this element – ‘o’ in the earlier mark, and ‘E’ in the contested sign. The signs also differ in the contested sign’s verbal element ‘LIGHT’, which is non-distinctive in relation to the relevant goods. Finally, the signs differ in their figurative elements: the earlier mark’s red oval background, and the contested sign’s question mark device. When signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37). Therefore, the different elements of the contested sign have a limited impact on the visual comparison of the signs.

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

Aurally, the pronunciation of the signs coincides in the sounds of the letters ‘brav*’, found in the earlier mark’s sole verbal element, ‘bravo’, and the contested sign’s most distinctive element, ‘BRAVE’. However, they differ in the sound of the last letter of this element (‘o’ in the earlier mark and ‘E’ in the contested sign). The signs also differ in the sound of the contested sign’s verbal element ‘LIGHT’, which is non-distinctive in relation to the relevant goods. The question mark does not affect the pronunciation of the contested sign in a way that will make it phonetically different to the earlier mark (08/06/2017, T‑341/13 RENV, So’bio etic (fig.) / SO...? et al., EU:T:2017:381, § 50-51).

Therefore, the signs are aurally highly similar.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs will be associated with an almost identical meaning due to the verbal elements ‘bravo’ and ‘BRAVE’, the signs are conceptually highly 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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

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 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 on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association that can be made with the registered mark, and 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).

The goods are identical. The relevant public is the public at large, and the level of attention is average. The earlier mark has a normal degree of inherent distinctiveness.

The signs are visually, similar to an average degree, and aurally and conceptually highly similar.

Taking into account the similarities between the signs, and especially the fact that the earlier mark is almost entirely included in the beginning of the contested sign, it is considered that the relevant public might be led to believe that the identical goods come from the same or economically linked undertakings.

It should be borne in mind that the relevant goods are beverages and, since these are frequently ordered in noisy establishments (bars, nightclubs), the phonetic similarity between the signs is particularly relevant (15/01/2003, T‑99/01, Mystery, EU:T:2003:7, § 48).

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 Italian- speaking part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s international trade mark registration designating Italy No 1 273 341. It follows that the contested trade mark must be rejected for all the contested goods.

Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its reputation as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

As the earlier international trade mark registration designating, inter alia, Italy, No 1 273 341, 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 remaining designations of this mark. There is also no need to examine any of 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.

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

Claudia ATTINÀ

Chiara BORACE

Edith Elisabeth VAN DEN EEDE

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.