OPPOSITION Nо B 3 122 314

 

Supsa Supermercats Pujol, S.L., Polígono Industrial "El Segre", Parcela 307-A, 25191 Lleida, Spain (opponent), represented by Herrero & Asociados, Cedaceros, 1, 28014 Madrid, Spain (professional representative) 

 

a g a i n s t

 

Musai Kazim Sarica, Kerkyrastrasse 2, 53840 Troisdorf, Germany (applicant), represented by Kls Rechtsanwälte, Gleueler Str. 277, 50935 Köln, Germany (professional representative).

On 05/05/2021, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 122 314 is upheld for all the contested goods.

 

2.	European Union trade mark application No 18 156 122 is rejected in its entirety.

 

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

 

REASONS

 

On 26/05/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 156 122 (figurative mark). The opposition is based on, inter alia,  Spanish trade mark registration No M2 812 848, . 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.

 

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 Spanish trade mark registration No M2 812 848.

 

a) The goods

 

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

 

Class 5: Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes and for personal hygiene, other than toiletries; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides.

Class 29: Meat, fish, poultry and game; meat extracts; dried, preserved, cooked and frozen fruits and vegetables; preserved, cooked and frozen pulse; preserved, dried, cooked and frozen meat and fish; compotes, jellies and jams; eggs, milk and milk products; edible oils and fats; meat, fish or vegetable based prepared dishes.

Class 30: Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard, pepper; vinegar, sauces (condiments); spices; ice.

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables; seeds, living plants and natural flowers; foodstuffs for animals, malt.

Class 32: Beers; mineral and aerated waters and other non-alcoholic drinks; syrups for making beverages; fruit juices; syrups.

The contested goods are the following:

 

Class 5: Glucose dietary supplements; Yeast dietary supplements; Flaxseed oil dietary supplements; Powdered milk for babies; Mineral food supplements; Mineral waters for medical purposes; Mineral water salts; Lacteal flour for babies; Nutritional supplements; Greases for medical purposes; Freeze-dried food adapted for medical purposes; Freeze-dried meat adapted for medical purposes; Gelatine for medical purposes; Disinfectants; Disinfectants for chemical toilets; Disinfectants for hygiene purposes; Disinfectant soap; Dietetic beverages adapted for medical purposes; Dietetic foods adapted for medical use; Infant formula.

Class 29: Liver; Almond milk; Margarine; Marmalade; Milk; Milk substitutes; Ferments (Milk -) for culinary purposes; Milk products; Dried milk; Milk shakes; Whey; Fish; Prawns, not live; Herrings, not live; Lobsters, not live; Crayfish, not live; Anchovy, not live; Sardines, not live; Salmon, not live; Tuna, not live; Poultry, not live; Fruit salads; Olive oil for food; Palm kernel oil for food; Palm oil for food; Curds; Colza oil for food; Rice milk; Rice milk for culinary purposes; Raisins; Cream [dairy products]; Vegetable-based cream; Gelatine; Jellies; Vegetables, tinned [canned (Am.)]; Vegetable salads; Peanut milk-based beverages; Coconut milk-based beverages; Almond milk-based beverages; Coconut, desiccated; Vegetables, dried; Flavored nuts; Oat milk; Yoghurt; Cocoa butter; Potato chips; Cheese; Caviar; Kephir [milk beverage]; Hummus [chickpea paste]; Coconut butter; Coconut oil and fat [for food]; Coconut milk; Coconut milk for culinary purposes; Coconut oil for food; Jams; Beans, preserved; Peas, preserved; Lentils, preserved; Olives, preserved; Mushrooms, preserved; Soya beans, preserved, for food; Onions, preserved; Fish, preserved; Garlic [preserved]; Preserved meat; Preserved vegetables; Preserved fruits; Soups; Ajvar [preserved peppers]; Protein milk; Weed extracts for food; Non-alcoholic eggnog; Apple purée; Eggplant paste; Black pudding; Butter; Buttercream; Dates; Curd; Eggs; Yolk of eggs; Salted meats; Salted fish; Powdered eggs; Albumen for culinary purposes; White of eggs; Peanut butter; Peanut milk; Peanut milk for culinary purposes; Gherkins; Extra virgin olive oil; Falafel; Fatty substances for the manufacture of edible fats; Fish fillets; Foods made from fish; Fish, tinned [canned (Am.)]; Fruit preserved in alcohol; Fruit jellies; Fruit pulp; Fruit salads; Fruit-based snack food; Galbi [grilled meat dish]; Freeze-dried meat; Freeze-dried vegetables; Vegetables, cooked; Cooked fruits; Sauerkraut; Ham; Whipped cream; Pork; Lard; Sesame oil for food; Soya milk [milk substitute]; Soya bean oil for food; Sunflower oil for food; Bacon; Edible fats; Oils for food; Frozen fruits; Tofu; Tomato paste; Tomato purée; Tomato juice for cooking; Peanuts, prepared; Fish roe, prepared; Hazelnuts, prepared; Ground almonds; Processed nuts; Seeds, prepared; Sweet corn, processed; Game; Sausages; Hotdog sausages; Sausages in batter; Meat; Yakitori; Lemon juice for culinary purposes; Pollen prepared as foodstuff; Preparations for making bouillon; Onion rings.

Class 30: Chocolate; Mousses (Chocolate -); Drinking chocolate; Chocolate-based spreads; Chocolate spreads containing nuts; Allspice; Mustard; Mustard meal; Sesame seeds [seasonings]; Soya flour; Soya sauce; Sauces [condiments]; Spaghetti; Edible ices; Powders for ice cream; Starch for food; Mirror icing [mirror glaze]; Sushi; Tacos; Tea; Dough; Farinaceous food pastes; Tomato sauce; Tarts; Unleavened bread; Vanillin [vanilla substitute]; Waffles; Seasonings; Cinnamon [spice]; Sugar; Pralines; Sweetmeats [candy]; Coffee beverages with milk; Cocoa beverages with milk; Rice puddings; Chocolate beverages with milk; Muesli; Noodle-based prepared meals; Noodles; Chocolate-coated nuts; Nut flours; Palm sugar; Pasta sauce; Pâtés en croûte; Pies; Lozenges [confectionery]; Pesto [sauce]; Pancakes; Pepper; Pizza; Popcorn; Puddings; Popcorn; Ravioli; Rice; Rice pulp for culinary purposes; Rice-based snack food; Coffee (Unroasted -); Saffron [seasoning]; Sandwiches; Sauces [condiments]; Leaven; Halvah; Yeast; Honey; Ginger [spice]; Instant rice; Frozen yoghurt [confectionery ices]; Coffee; Coffee flavorings [flavourings]; Coffee-based beverages; Cocoa; Cocoa-based beverages; Chamomile-based beverages; Caramels; Bubble gum; Cookies; Catsup; Cooking salt; Crackers; Cakes; Cake dough; Cake frosting [icing]; Turmeric; Liquorice [confectionery]; Stick liquorice [confectionery]; Food flavorings, other than essential oils; Hominy grits; Maize flour; Macaroni; Maltose; Marzipan; Mayonnaise; Flour; Buns; Bread; Burritos; Petit-beurre biscuits; Cheeseburgers [sandwiches]; Curry [spice]; Custard; Mousses (Dessert -) [confectionery]; Ice cream; Iced tea; Ice cubes; Peanut confectionery; Vinegar; Edible paper; Vermicelli [noodles]; Pastries; Meat pies; Meat gravies; Spring rolls; Freeze-dried dishes with main ingredient being pasta; Freeze-dried dishes with main ingredient being rice; Minced garlic [condiment]; Royal jelly; Fruit jellies [confectionery]; Tea-based beverages; Spices; Condiments; Glucose for culinary purposes; Oat flakes; Flavourings, other than essential oils, for beverages; Baking powder; Beer vinegar; Thickening agents for cooking foodstuffs; Bean meal; Sweetmeats [candy]; Rusks.

Class 31: Lettuce, fresh; Potatoes, fresh; Coconuts; Live fish; Lobsters, live; Live crayfish; Anchovy, live; Salmon, live; Tuna, live; Live poultry; Algarovilla for animal consumption; Aloe vera plants; Cucumbers, fresh; Fresh hazelnuts; Lentils, fresh; Olives, fresh; Oranges, fresh; Mushrooms, fresh; Grapes, fresh; Citrus fruit, fresh; Onions, fresh vegetables; Garlic, fresh; Leeks, fresh; Spinach, fresh; Fresh vegetables; Fresh fruits; Lemons, fresh.

Class 32: Aloe vera drinks, non-alcoholic; Cocktails, non-alcoholic; Soft drinks; Non-alcoholic fruit juice beverages; Non-alcoholic beverages; Non-alcoholic beverages flavoured with coffee; Non-alcoholic beverages flavoured with tea; Non-alcoholic honey-based beverages.

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.

 
Contested goods in Class 5

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

The contested disinfectants for hygiene purposes; disinfectants for chemical toilets; disinfectant soap are included in the opponent's broad category of disinfectants. Therefore, they are identical.

The contested dietetic foods adapted for medical use; nutritional supplements; glucose dietary supplements; yeast dietary supplements; flaxseed oil dietary supplements; mineral food supplements; freeze-dried food adapted for medical purposes; freeze-dried meat adapted for medical purposes; dietetic beverages adapted for medical purposes; mineral waters for medical purposes; mineral water salts; gelatine for medical purposes are included in the opponent's broad category of dietetic substances adapted for medical use. Therefore, they are identical.

The contested lacteal flour for babies; infant formula; powdered milk for babies are included in the opponent's broad category of food for babies. Therefore, they are identical.

The contested greases for medical purposes are similar to the opponent’s pharmaceutical and veterinary preparations, since they may coincide in producer, distribution channels and relevant public.

Contested goods in Class 29

Fish; eggs; meat; game are identically contained in both lists of goods (including synonyms).

The contested hummus [chickpea paste]; raisins; vegetables, tinned [canned (Am.)]; vegetable salads; coconut, desiccated; vegetables, dried; beans, preserved; peas, preserved; lentils, preserved; olives, preserved; soya beans, preserved, for food; onions, preserved; garlic [preserved]; preserved vegetables; preserved fruits; ajvar [preserved peppers]; dates; gherkins; fruit preserved in alcohol; fruit jellies; fruit pulp; freeze-dried vegetables; vegetables, cooked; cooked fruits; sauerkraut; frozen fruits; tomato paste; tomato purée; tomato juice for cooking; sweet corn, processed; lemon juice for culinary purposes; potato chips; cocoa butter; eggplant paste; fruit-based snack food; onion rings; apple purée; falafel are identical to the opponent's dried, preserved, cooked and frozen fruits and vegetables, either because they are identically contained in both lists (including synonyms) or because the earlier goods include, are included in, or overlap with, the contested goods.

The contested fruit salads and the opponent’s dried, preserved, cooked and frozen fruits are similar to a high degree, since they may coincide in purpose, producer, distribution channels, relevant public and they might be in competition.

The contested pollen prepared as foodstuff is similar to the opponent’s honey in Class 30, since they coincide in producer, distribution channels and relevant public.

The contested peanut butter; flavored nuts; mushrooms, preserved; weed extracts for food; peanuts, prepared; ground almonds; processed nuts; seeds, prepared; hazelnuts, prepared; are similar to the opponent’s preserved fruits and vegetables, since they coincide in purpose, distribution channels, producers and relevant public. In addition, they are in competition.

The contested olive oil for food; palm kernel oil for food; palm oil for food; colza oil for food; coconut butter; coconut oil and fat [for food]; coconut oil for food; extra virgin olive oil; fatty substances for the manufacture of edible fats; lard; sesame oil for food; soya bean oil for food; sunflower oil for food; edible fats; oils for food are identical to the opponent's broad category of edible oils and fats, either because they are identically contained in both lists (including synonyms) or because the earlier goods include, are included in, or overlap with, the contested goods.

The contested gelatine; marmalade; jellies; jams; are identical to the opponent's jellies and jams, either because they are identically contained in both lists (including synonyms) or because the earlier goods include, are included in, or overlap with, the contested goods.

The contested milk; ferments (Milk -) for culinary purposes; milk products; dried milk; milk shakes; cream [dairy products]; yoghurt; cheese; kephir [milk beverage]; butter; buttercream; curd; whipped cream; protein milk; non-alcoholic eggnog; whey; curds are identical to the opponent's broad category of milk and milk products, either because they are identically contained in both lists (including synonyms) or because the earlier goods include, are included in, or overlap with, the contested goods.

The contested liver; poultry, not live; preserved meat; black pudding; salted meats; galbi [grilled meat dish]; freeze-dried meat; ham; pork; bacon; sausages; hotdog sausages; yakitori; prawns, not live; herrings, not live; lobsters, not live; crayfish, not live; anchovy, not live; sardines, not live; salmon, not live; tuna, not live; caviar; fish, preserved; salted fish; fish fillets; foods made from fish; fish, tinned [canned (Am.)]; fish roe, prepared; sausages in batter; preparations for making bouillon; soups are at least similar to the opponent’s preserved, dried, cooked and frozen meat and fish, as they can coincide in producer, purpose, distribution channels and relevant public. They can also be in competition.

The contested tofu; almond milk; milk substitutes; rice milk; rice milk for culinary purposes; vegetable-based cream; peanut milk-based beverages; coconut milk-based beverages; almond milk-based beverages; oat milk; coconut milk; coconut milk for culinary purposes; peanut milk; peanut milk for culinary purposes; soya milk [milk substitute]; margarine; is/are similar to a high degree to the opponent's milk and milk products, because they coincide in method of use, they are in competition, they coincide in distribution channels, they have the same purpose, they coincide in relevant public.

The contested yolk of eggs; powdered eggs; albumen for culinary purposes; white of eggs and the opponent's eggs are similar since they can coincide in purpose, producers, distribution channels and relevant public. Furthermore, they can be in competition.

Contested goods in Class 30

Tea; mustard; sauces [condiments]; bread; seasonings; pepper; vinegar; spices; condiments; ice cubes; rice; honey; sugar; yeast; leaven are identically contained in both lists of goods (including synonyms).

The contested cooking salt is included in the opponent's broad category of salt. Therefore, they are identical.

The contested bean meal; soya flour; nut flours; maize flour; flour are identical to the opponent's flour, either because they are identically contained in both lists (including synonyms) or because the earlier goods include, are included in, or overlap with, the contested goods.

The contested coffee beverages with milk; coffee (Unroasted -); coffee; coffee-based beverages are included in the opponent's broad category of coffee. Therefore, they are identical.

The contested curry [spice]; ginger [spice]; cinnamon [spice]; saffron [seasoning]; allspice; sesame seeds [seasonings]; vanillin [vanilla substitute]; turmeric are included in the opponent's broad category of spices. Therefore, they are identical.

The contested crackers; popcorn (listed twice); oat flakes; starch for food; farinaceous food pastes; spaghetti; dough; muesli; noodles; cake dough; hominy grits; macaroni; vermicelli [noodles] are included in the opponent's broad category of preparations made from cereals. Therefore, they are identical.

The contested tomato sauce; soya sauce; pasta sauce; pesto [sauce]; mayonnaise; minced garlic [condiment]; mustard meal; catsup; meat gravies are included in the opponent's broad category of sauces (condiments). Therefore, they are identical.

The contested drinking chocolate; chocolate; cocoa beverages with milk; chocolate beverages with milk; cocoa; cocoa-based beverages are included in the opponent's broad category of cocoa. Therefore, they are identical.

The contested glucose for culinary purposes; maltose; palm sugar; are included in the opponent's broad category of sugar. Therefore, they are identical.

The contested instant rice; rice pulp for culinary purposes are included in the opponent's broad category of rice. Therefore, they are identical.

The contested unleavened bread; buns; are included in the opponent's broad category of bread. Therefore, they are identical.

The contested waffles; pancakes; pâtés en croûte; cookies; cakes; pastries; tarts; petit-beurre biscuits; pies; meat pies; rusks are identical to the opponent’s broad category of pastry, either because they are identically contained in both lists (including synonyms) or because the earlier goods include, are included in, or overlap with, the contested goods.

The contested chamomile-based beverages; iced tea; tea-based beverages are included in the opponent's broad category of tea. Therefore, they are identical.

The contested beer vinegar is included in the opponent's broad category of vinegar. Therefore, they are identical.

The contested mousses (Chocolate -); chocolate-based spreads; chocolate spreads containing nuts; sweetmeats [candy](listed twice); chocolate-coated nuts; marzipan; mousses (Dessert -) [confectionery]; peanut confectionery; edible paper; fruit jellies [confectionery]; halvah; liquorice [confectionery]; stick liquorice [confectionery]; lozenges [confectionery]; caramels; bubble gum; pralinés are included in the opponent's broad category of confectionery. Therefore, they are identical.

The contested edible ices; ice cream; are included in the opponent's broad category of ices. Therefore, they are identical.

The contested frozen yoghurt [confectionery ices] are highly similar to the opponent’s ices, since they coincide in purpose, producer, distribution channels, relevant pubic and they are in competition.

Sago is an edible starch obtained from the pith of the trunk of certain palms, used in cooking as a thickening agent. Therefore, the contested thickening agents for cooking foodstuffs includes as a broader category the opponent’s sago. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested sushi; tacos; noodle-based prepared meals; pizza; ravioli; rice-based snack food; sandwiches; burritos; cheeseburgers [sandwiches]; spring rolls; freeze-dried dishes with main ingredient being pasta; freeze-dried dishes with main ingredient being rice are similar to a high degree to the opponent's fish or vegetable based prepared dishes in Class 29, because they coincide in producer, method of use, distribution channels, purpose, and in relevant public. They are in competition.

The contested baking powder is similar to a high degree to the opponent's yeast because they coincide in their nature and distribution channels. Furthermore, they are in competition.

The contested puddings; custard; are highly similar to the opponent’s milk products in Class 29, since they coincide in purpose, method of use, producers, distribution channels and relevant public. Furthermore, they are in competition.

The contested rice puddings are similar to the opponent’s milk products in Class 29, since they coincide in purpose, producers, distribution channels and relevant public. Furthermore, they are in competition.

The contested food flavorings, other than essential oils, are similar to the opponent's spices because they coincide in method of use, distribution channels, purpose and relevant public. Flavouring refers to the introduction of a new flavour to a food item by altering or modifying that particular food's original flavour. Flavourings like alcohols, acids or fresh herbs often require cooking to render their basic attributes to the food, and to alter its form and flavour. A spice is a vegetal product that adds an aromatic or pungent taste which is used for flavouring while cooking. Spices and flavourings are both used for flavouring food. It is also possible that one can substitute the other. While certain types of flavourings (for example, artificial flavourings) may be preferred by professionals, and natural flavourings (for instance, spices or vegetables) may be preferred by general consumers, this does not change the fact that both address both target publics. Therefore, the goods under comparison are likely to be distributed through the same channels (wholesalers would be preferred by professionals and retailers, supermarkets, etc., would be preferred by general consumers).

The contested flavourings, other than essential oils, for beverages; coffee flavorings [flavourings] are similar to the opponent’s sugar, since they coincide in purpose, distribution channels and method of use. They are in competition.

The contested royal jelly is similar to the opponent's honey because they coincide in producer, distribution channels, relevant public and they have the same nature.

The contested mirror icing [mirror glaze]; cake frosting [icing]; are similar to the opponent’s sugar, since they coincide in producer, distribution channels and relevant public. Furthermore, they are in competition.

The contested powders for ice cream are similar to the opponent’s ices, since they coincide in purpose, distribution channels and relevant public. Furthermore, the goods are in competition.

Contested goods in Class 31

The contested algarovilla for animal consumption is included in the opponent's broad category of foodstuffs for animals. Therefore, they are identical.

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

The contested citrus fruit, fresh; coconuts; lemons, fresh; oranges, fresh; grapes, fresh are included in the opponent's broad category of fresh fruits. Therefore, they are identical.

The contested fresh vegetables; lettuce, fresh; cucumbers, fresh; onions, fresh vegetables; garlic, fresh; spinach, fresh; potatoes, fresh; lentils, fresh; olives, fresh; leeks, fresh are identical to the opponent's broad category of vegetables, either because they are identically contained in both lists (including synonyms) or because the earlier goods include, are included in, or overlap with, the contested goods.

The contested aloe vera plants are included in the opponent's broad category of living plants. Therefore, they are identical.

The contested live poultry; live fish; lobsters, live; live crayfish; anchovy, live; salmon, live; tuna, live are included in the opponent's broad category of live animals. Therefore, they are identical.

The contested fresh hazelnuts; mushrooms, fresh are included in the opponent's broad category of agricultural, horticultural and forestry products and grains not included in other classes. Therefore, they are identical.

Contested goods in Class 32

The contested goods are identical to the opponent's other non-alcoholic drinks, either because they are identically contained in both lists (including synonyms) or because the earlier goods include, are included in, 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 or similar to varying degrees are directed at the public at large and at business customers with specific professional knowledge or expertise, for example, in the provision of food and drinks sector.

 

The degree of attention is on the whole average. The fact that most of them are mass-consumption goods does not mean the degree of attention will be lower, as the opponent argues, but average (12/02/2019, T‑231/18, Djili (fig.) / GILLY, EU:T:2019:82, § 24). The degree of attention would only be rather low in relation to confectionery in Class 30 (03/10/2017, T‑695/15, Comfit boxes, Containers, EU:T:2017:684, § 37, 38).

 

c) The signs

 

Earlier trade mark	Contested sign

 

The relevant territory is  Spain.

 

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 majority of the relevant public will perceive the final two elements of the contested sign as a fanciful depiction of the letters ‘SA’. The umlaut will be perceived as a decorative device, without further significance for the Spanish public.

In the earlier mark, the figurative element will be seen as a logo containing a reiteration of the first letter of the verbal element under it.

The elements of the signs have no meaning for the relevant public and are, therefore, distinctive. The signs have no elements that could be considered clearly more dominant than other elements. 

Visually, the signs coincide in the letters ‘SU*SA’. They differ in the letters ‘p/T’ placed in their middle and in their additional figurative elements, stylization and colours used to depict them.

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 signs are  visually similar to a low degree.

 

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛SU*SA’, present identically in both signs. The pronunciation differs in the sound of the letters ‛p/T’ in the middle of the signs. The presence of the symbol umlaut in the contested sign does not influence the pronunciation of the contested sign in any manner for the relevant public. The additional letter ‘S’ within the figurative element of the earlier mark will not be pronounced for the reasons given above.  Therefore, the signs are aurally highly similar.

Conceptually, although the public in the relevant territory will perceive the meaning of the letter ‘S’ in the earlier mark 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 goods are partly identical and partly similar to varying degrees.

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).

The signs are aurally highly similar, their main difference being confined to a consonant in their middle. Neither ‘Supsa’, nor ‘SÜTSA’ possesses a clear concept and the letter ‘S’ in the earlier mark only reiterates the first letter of the following element. Although the signs are visually similar to a low degree, a likelihood of confusion cannot be excluded due to the previous findings.

 

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 Spanish trade mark registration No M2 812 848. It follows that the contested trade mark must be rejected for all the contested goods.

  

As the opponent’s Spanish trade mark registration No M2 812 848 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).

 

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

Irena LYUDMILOVA LECHEVA

Kieran HENEGHAN

 

 

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.