OPPOSITION Nо B 3 118 499

Société Louis Delhaize Financière et de Participation, en abrégé Delfipar, Société Anonyme, rue de l’Espérance, 84, 6061 Montignies sur Sambre, Belgium (opponent), represented by Inlex IP Expertise, Plaza San Cristobal, 14, 03002 Alicante, Spain (professional representative)

a g a i n s t

S.C. Hera Medical S.R.L., Str. I.p. Pavlov Nr. 18, Bucuresti, Sector 1, Romania (applicant), represented by S.C. Weizmann Ariana & Partners Agentie De Proprietate Intelectuala S.R.L., Vivando Building 51 11 Iunie Street, 1th Floor, Offices 14-15 Sector 4, 040171 Bucuresti, Romania (professional representative).

On 28/06/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 118 499 is upheld for all the contested goods and services.

2. European Union trade mark application No 18 169 320 is rejected in its entirety.

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

REASONS

On 05/05/2020, the opponent filed an opposition against all the goods and services of European Union trade mark application No 18 169 320 for the word mark ‘Smach’. The opposition is based on Benelux trade mark registration No 1 384 896 for the figurative 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 and services

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

Class 35: Advertising services including on-line advertising on a computer network, management of business affairs, retail or wholesale services of soaps, perfumery products, essential oils, cosmetics.

The contested goods and services are the following:

Class 3: Cosmetics; cosmetics and cosmetic preparations; cosmetic creams; mineral oils [cosmetic]; cosmetic moisturisers; tonics [cosmetic]; organic cosmetics; natural cosmetics; emollient preparations [cosmetics]; concealers; cosmetics for children; night creams [cosmetics]; cosmetic facial lotions; cosmetic hand creams; cosmetic oils for the epidermis; toning creams [cosmetic]; moisturising gels [cosmetic]; baths (cosmetic preparations for -); cosmetics for the treatment of dry skin; facial scrubs [cosmetic]; facial washes [cosmetic]; sun protecting creams [cosmetics]; cosmetic breast firming preparations; tissues impregnated with cosmetics; moisturising skin lotions [cosmetic]; cosmetics in the form of oils; skin lightening compositions [cosmetic]; cosmetics for use in the treatment of wrinkled skin; cosmetic kits; perfume oils for the manufacture of cosmetic preparations; cosmetic preparations for bath and shower; acne cleansers, cosmetic; topical skin sprays for cosmetic purposes; cosmetic preparations for dry skin during pregnancy.

Class 35: Advertising; business management; business administration; office functions; retailing, wholesaling and sale via global computer networks of cosmetics, cosmetics and cosmetic preparations, cosmetic creams, mineral oils (cosmetics); wholesaling and retailing and sale via global computer networks of cosmetic moisturisers, tonic lotions (cosmetics), organic cosmetic products, natural cosmetic products; wholesaling and retailing and sale via global computer networks of emollient preparations [cosmetic], concealers [cosmetics], cosmetics for children, night creams [cosmetics], cosmetic face lotions, cosmetic hand creams, cosmetic oils for the epidermis, toning creams (cosmetic); wholesaling and retailing and sale via global computer networks of moisturising gels [cosmetics], cosmetic preparations for baths; online wholesaling and retailing of cosmetics for the treatment of dry skin, facial scrubs [cosmetics], facial washes, sun barriers [cosmetics]; wholesaling and retailing and sale via global computer networks of cosmetic breast-firming preparations, tissues impregnated with cosmetics, moisturising skin lotions [cosmetics], cosmetics in the form of oils; wholesaling and retailing and sale via global computer networks of skin lightening compositions [cosmetics], cosmetics for use in the treatment of wrinkled skin; online retailing and wholesaling of cosmetic kits, perfume oils for the manufacture of cosmetic preparations; wholesaling and retailing and sale via global computer networks of cosmetic preparations for bath and shower, cleaning articles, cosmeceuticals, acne cleansers, skin sprays for cosmetic purposes, and topical application, cosmetic preparations for dry skin, for pregnancy.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

The term ‘including’, used in the opponent’s list of services, indicates that the specific services are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu-Tride, EU:T:2003:107).

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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.

The applicant argued that the opponent’s earlier trade mark is used for various services offered by a supermarket, whereas the applicant uses its sign in relation to bio-origin cosmetics, and submitted excerpts from the parties’ websites demonstrating the actual use of the conflicting marks in relation to the goods and services. However, these arguments are not relevant in light of the settled case-law, which stipulates that comparison of the goods and services must be based on the wording indicated in the lists of goods/services. Any actual or intended use not stipulated in the list of goods/services is not relevant for this comparison, since it is part of the assessment of likelihood of confusion in relation to the goods/services on which the opposition is based and against which it is directed; it is not an assessment of actual confusion or infringement (16/06/2010, T‑487/08, Kremezin, EU:T:2010:237, § 71).

In relation to the applicant’s argument about the actual use in the market of the trade marks for different goods and services, the examination of the likelihood of confusion carried out by the Office is a prospective examination. The particular circumstances in which the goods or services covered by the marks are actually marketed have, as a matter of principle, no impact on the assessment of the likelihood of confusion because they may vary in time depending on the wishes of the proprietors of the trade marks (15/03/2007, C‑171/06 P, Quantum, EU:C:2007:171, § 59; 22/03/2012, C‑354/11 P, G, EU:C:2012:167, § 73; 21/06/2012, T‑276/09, Yakut, EU:T:2012:313, § 58).

Contested goods in Class 3

Retail services concerning the sale of specific goods are similar to an average degree to these specific goods. Although the nature, purpose and method of use of these goods and services are not the same, they are similar because they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

Therefore, the contested cosmetics; cosmetics and cosmetic preparations; cosmetic creams; mineral oils [cosmetic]; cosmetic moisturisers; tonics [cosmetic]; organic cosmetics; natural cosmetics; emollient preparations [cosmetics]; concealers; cosmetics for children; night creams [cosmetics]; cosmetic facial lotions; cosmetic hand creams; cosmetic oils for the epidermis; toning creams [cosmetic]; moisturising gels [cosmetic]; baths (cosmetic preparations for -); cosmetics for the treatment of dry skin; facial scrubs [cosmetic]; facial washes [cosmetic]; sun protecting creams [cosmetics]; cosmetic breast firming preparations; tissues impregnated with cosmetics; moisturising skin lotions [cosmetic]; cosmetics in the form of oils; skin lightening compositions [cosmetic]; cosmetics for use in the treatment of wrinkled skin; cosmetic kits; perfume oils for the manufacture of cosmetic preparations; cosmetic preparations for bath and shower; acne cleansers, cosmetic; topical skin sprays for cosmetic purposes; cosmetic preparations for dry skin during pregnancy are similar to the opponent’s retail services of perfumery products, essential oils, cosmetics.

Contested services in Class 35

Advertising; business management are identically contained in both lists of services (including synonyms).

The contested retailing, wholesaling and sale via global computer networks of cosmetics, cosmetics and cosmetic preparations, cosmetic creams, mineral oils (cosmetics); wholesaling and retailing and sale via global computer networks of cosmetic moisturisers, tonic lotions (cosmetics), organic cosmetic products, natural cosmetic products; wholesaling and retailing and sale via global computer networks of emollient preparations [cosmetic], concealers [cosmetics], cosmetics for children, night creams [cosmetics], cosmetic face lotions, cosmetic hand creams, cosmetic oils for the epidermis, toning creams (cosmetic); wholesaling and retailing and sale via global computer networks of moisturising gels [cosmetics], cosmetic preparations for baths; online wholesaling and retailing of cosmetics for the treatment of dry skin, facial scrubs [cosmetics], facial washes, sun barriers [cosmetics]; wholesaling and retailing and sale via global computer networks of cosmetic breast-firming preparations, tissues impregnated with cosmetics, moisturising skin lotions [cosmetics], cosmetics in the form of oils; wholesaling and retailing and sale via global computer networks of skin lightening compositions [cosmetics], cosmetics for use in the treatment of wrinkled skin; online retailing and wholesaling of cosmetic kits, perfume oils for the manufacture of cosmetic preparations; wholesaling and retailing and sale via global computer networks of cosmetic preparations for bath and shower, cosmeceuticals, acne cleansers, skin sprays for cosmetic purposes, and topical application, cosmetic preparations for dry skin, for pregnancy are included in the broad categories of, or at least overlap with, the opponent’s retail or wholesale services of perfumery products, essential oils, cosmetics. Therefore, they are identical.

The contested business administration is similar to the opponent’s management of business affairs as they have the same purpose. They usually coincide in producer and relevant public.

Retail services of specific goods and retail services of other goods have the same nature as both are retail services, the same purpose of allowing consumers to conveniently satisfy different shopping needs, and the same method of use. Similarity is found between those retail services where the specific goods concerned are commonly retailed together in the same outlets and they target the same public. However, the degree of similarity between retail of specific goods on the one hand and retail of other goods on the other hand may vary depending on the proximity of the retailed goods and the particularities of the respective market sectors.

The contested retailing, wholesaling and sale via global computer networks of cleaning articles are commonly sold side-by-side in the same establishments and they target the same public as the opponent’s retail or wholesale services of soaps. In addition, these services are often offered for sale in the same household cleaning sections of the e-commerce platforms and online shops. Therefore, these services are at least similar to a low degree.

The contested office functions are similar to a low degree to the opponent’s management of business affairs as they have the same purpose. Office functions are intended to provide active help with the internal day-to-day operations of other undertakings that contract these services, including the administration and support services in the back office. Management of business affairs services, provided by consultants, involve activities associated with running a company, such as controlling, leading, monitoring, organising and planning, and include assistance in the efficient allocation of financial resources and improving productivity to help with the strategy of the commercial undertaking. These services can be offered by the same specialised suppliers and they target the same consumers, such as professional business customers. They also contribute to the same purpose, namely the proper running and success of an undertaking.

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 and services found to be identical or similar to varying degrees are directed at the public at large (e.g. various cosmetics in Class 3 and diverse retail services in Class 35) and at business customers with specific professional knowledge or expertise (e.g. advertising, business management and various wholesale services in Class 35).

The public’s degree of attentiveness may vary from average to high, depending on the price, sophistication, or terms and conditions of the goods and services purchased.

c) The signs

	Smach
Earlier trade mark	Contested sign

The relevant territory is Benelux.

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 applicant argued that the opponent also uses, in combination with the earlier mark, the additional sign ‘MATCH’, which has an impact on the perception of the earlier mark by the relevant public. Furthermore, it submitted excerpts from the opponent’s website demonstrating the actual use of the earlier mark together with the sign ‘MATCH’. In this regard, the Opposition Division notes that the signs have to be compared in the form in which they are protected, that is to say, in the form in which they are registered/applied for. The actual or possible use of the registered marks in another form is irrelevant when comparing signs (09/04/2014, T‑623/11, Milanówek cream fudge, EU:T:2014:199, § 38). Therefore, the applicant’s argument must be set aside.

The unitary character of the Benelux trade mark means that an earlier Benelux trade mark has identical protection in the relevant territories. Earlier Benelux trade marks may therefore be relied upon to challenge any subsequent application for a trade mark that would prejudice their protection, even if this is only in relation to the perception of consumers in part of Benelux (09/03/2005, T‑33/03, Hai, EU:T:2005:89, § 39; 03/03/2004, T‑355/02, Zirh, EU:T:2004:62, § 36).

Considering the meaning of the earlier mark’s word ‘supermarché’ in French and the way in which it influences the distinctiveness of this component in relation to the relevant services and the comprehension of the marks, the Opposition Division finds it appropriate to focus the comparison of the signs on the French-speaking part of the relevant public.

The contested sign is the word ‘Smach’, which has no meaning for the relevant public and is, therefore, distinctive. The protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics that the mark might possess (22/05/2008, T‑254/06, RadioCom, EU:T:2008:165, § 43). Therefore, it is generally irrelevant whether word marks are depicted in upper- or lower-case letters. The contested sign does not deviate from the usual way of writing since it is written in title case, which is a fairly common way of depicting words.

The earlier mark is a figurative mark consisting of the verbal component ‘sma’, followed by the symbol ‘+’ and the verbal component ‘ch’. The letters ‘sma’ and ‘ch’ are depicted in green lower-case letters, whereas the symbol ‘+’ is depicted in red. At the bottom of the sign, there is the verbal element ‘supermarché’, depicted in red lower-case lettering. The standard typefaces of the earlier mark will be perceived as purely decorative and non-distinctive, as it is usual in the relevant market sector for a sign’s verbal elements to be slightly stylised.

The opponent argued that the earlier mark’s symbol (‘+’) might be perceived by the relevant public as the lower-case letter ‘t’, due to its shape and the position in the middle of the sign. It cannot be excluded that, further to a closer inspection, some consumers may recognise and identify the letter ‘t’ in the symbol ‘+’. Therefore, they will perceive and read the earlier mark as ‘smatch’. However, the Opposition Division concludes that although these two characters show some remote analogous anatomic features, this interpretation of the symbol ‘+’ is unlikely since the word ‘smatch’ is neither a French nor a basic English word. It is not of such a nature to be immediately and commonly understood by the relevant public under examination. Furthermore, there is nothing in the earlier mark, which would help the public to recognise the word ‘smatch’ in it, for example another word familiar to them containing the letter ‘t’ depicted in the same manner. Therefore, it requires a further mental step by the consumers to interpret the symbol ‘+’ (plus) as the letter ‘t’. Even children at the very early stage of their education are able to differentiate between the symbol ‘+’ and the letter ‘t’. This is even more true for the reasonably well-informed, observant and circumspect consumers of the relevant services. Therefore, the Opposition Division finds it appropriate to focus the examination on the part of the public that will perceive the symbol ‘+’ as such, being embedded between meaningless verbal components ‘sma’ and ‘ch’.

The earlier mark’s verbal components ‘sma’ and ‘ch’ have no clear meaning in relation to the services at issue for the relevant public under examination. Therefore, they are distinctive to a normal degree.

The earlier mark’s symbol ‘+’ will be identified as a mathematical symbol referring to the concepts of addition, increase or improvement. This element usually refers to a positive notion in the mind of the public, as it is often used to indicate increased quality or quantity (19/09/2018, R 477/2018‑4, 1+ (fig.) / ONE + SYSTEM (fig.), § 39), and is commonly used for all types of goods and services (28/10/2010, R 1096/2010‑1, PLUS+, § 7). Therefore, it will be perceived as a laudatory symbol and is non-distinctive in relation to the services at issue.

The earlier mark’s verbal element ‘supermarché’ (‘supermarket’ in English) will be perceived by the relevant public under examination as a reference to a place where the services are rendered. This word is non-distinctive for the relevant services since it is abundantly used in commerce in relation thereto. Indeed, the public is familiar with the use of terms such as ‘supermarché’, which are often used in the commercialisation of cosmetics and other products and in the names of multiple traders operating in the relevant market sector. The same holds true in the context of the remaining services, which can address or relate to supermarkets or even be purchased in these establishments, such as advertising and business-related services. The word ‘supermarché’ is often used descriptively, as an informative and supplementary indication, which merely accompanies the brand of retail, wholesale, advertising and business-related services. Consequently, as the consumers are not in the habit of attaching trade mark significance to this word in relation to the services at issue, they will focus their attention on the initial and most distinctive string of letters ‘sma*ch’ in the earlier mark. They will perceive it as the main indicator of origin contained therein.

The earlier mark has no element that could be considered clearly more dominant than other elements.

Visually, the signs coincide in the sequence of letters ‘sma*ch’, which is the sole element of the contested sign and the earlier mark’s initial and most distinctive verbal components. They differ in the additional elements of the earlier mark, the symbol ‘+’ and the verbal element ‘supermarché’, which are, however, non-distinctive. In addition, the signs differ in the earlier mark’s stylisation of the verbal elements, which is merely decorative and non-distinctive.

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. For this reason, the difference in the symbol ‘+’, placed in the middle of the initial and most distinctive verbal element of the earlier mark, is outweighed by the signs’ coinciding beginnings and endings. In addition, the contested sign is a word mark and the protection offered by the registration of a word mark applies to the word itself and not to the individual graphic or stylistic characteristics that the mark might possess. Therefore, it cannot be excluded that it could be stylised in a similar manner to the earlier mark.

Therefore, despite the abovementioned differences, and particularly taking into account that all the letters of the contested sign are included in the initial and most distinctive verbal element of the earlier mark, whereas the differentiating elements of the earlier mark are less important as an indicator of the commercial origin of the relevant services. Therefore, the marks are visually similar to a higher-than-average degree.

Aurally, the pronunciation of the signs coincides in the sounds of the letters ‘sma*ch’, present identically in both signs. It differs in the sounds of the earlier mark’s symbol (‘+’) and the verbal element ‘supermarché’, if they are pronounced at all. Depending on whether the symbol ‘+’ in the initial and most distinctive verbal element of the earlier mark is pronounced, it may or may not create an audible difference between the signs.

In this regard, although all verbal elements are generally subject to the phonetic comparison, it may be the case that the relevant public aurally refers to a sign by some elements and omits others. In the present case, it is considered that the vast majority of consumers, if not all, will not pronounce the earlier mark’s elements ‘+’ and ‘supermarché’, due to their limited distinctiveness in relation to the services at issue, and will only refer to the earlier mark as ‘smach’.

The Court has stated that elements that have a descriptive nature or are superfluous because of the nature of the services are generally not pronounced (03/06/2015, T‑544/12, PENSA PHARMA, EU:T:2015:355; 03/06/2015, T‑546/12, Pensa, EU:T:2015:355, § 107). Moreover, economy of language might be another reason for assuming that some elements will be pronounced while others will be omitted, particularly in the case of very long marks (11/01/2013, T‑568/11, interdit de me gronder IDMG, EU:T:2013:5, § 44). In addition, consumers naturally tend to shorten long marks in order to reduce them to elements that are easier to refer to and remember (07/02/2013, T‑50/12, Metro Kids Company, EU:T:2013:68, § 42; 30/11/2011, T‑477/10, SE© Sports Equipment, EU:T:2011:707, § 55; 16/09/2009, T‑400/06, zerorh+, EU:T:2009:331, § 58; 18/09/2012, T‑460/11, Bürger, EU:T:2012:432, § 48).

Consequently, as regards the great majority of consumers, if not all, the pronunciation of the signs coincides in full. Therefore, the signs are aurally identical for those consumers, and aurally similar to a lower-than-average degree for the part of the public that may pronounce the symbol ‘+’ in the earlier mark.

Conceptually, although the relevant public under examination in the relevant territory will perceive the meaning of the elements ‘supermarché’ and the symbol ‘+’ in the earlier mark as explained above, the contested 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. However, as these differentiating elements are considered non-distinctive and, therefore, have less impact than the coinciding verbal elements ‘sma*ch’/‘Smach’, they will not introduce any significant conceptual difference between the signs. The relevant public’s attention will be attracted to the meaningless verbal elements ‘sma*ch’/‘Smach’ 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 claimed that the earlier trade mark enjoys enhanced distinctiveness but did not file any evidence in order to prove such a claim.

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 services in question from the perspective of the public under examination in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of some non-distinctive elements in the mark, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

The 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).

In the present case, the goods and services are partly identical and partly similar to varying degrees. They target the public at large and a professional public. The level of attention varies from average to high. The earlier mark enjoys a normal degree of inherent distinctiveness.

The signs are visually similar to a higher-than-average degree and aurally identical or similar to a lower-than-average degree, since the contested sign, ‘Smach’, is entirely included in the first and most distinctive verbal element ‘sma*ch’ of the earlier mark. The signs differ in the symbol ‘+’ and the second verbal element ‘supermarché’ of the earlier mark, which are non-distinctive and will not attract the public’s attention as much as the distinctive string of letters ‘sma*ch’. Moreover, the signs differ in the slight stylisation of the earlier mark, which is of limited importance in the overall impression created by that sign, as explained in detail above. Furthermore, the signs are conceptually not similar. However, the symbol ‘+’ and the verbal element ‘supermarché’ of the earlier mark, as the only differing concepts, do not have much impact and will not be afforded much trade mark significance by the public under examination. Therefore, they cannot assist consumers in decisively distinguishing between the marks. Consequently, the differences between the signs are not sufficient to outweigh the visual and aural similarities produced by the common verbal element ‘sma*ch’.

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). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54). Consequently, the Opposition Division considers that the significant similarities between the marks are sufficient to lead to a likelihood of confusion for consumers displaying an average to high degree of attention.

Therefore, for the substantial part of the public that will remember and refer to the earlier mark as ‘smach’, there is a likelihood of confusion between the signs because this element is fully reproduced in the sole element of the contested sign. Even though the signs demonstrate noticeable differences, they will associate the contested sign with the verbal element ‘sma*ch’ in the earlier mark. They will either perceive it as a new, simplified version thereof or confuse them directly.

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17). Due to this heightened similarity between the signs’ main badges of origin, the likelihood of confusion applies even in relation to the goods and services that are similar to a low degree and even bearing in mind the possibly high degree of attention of the relevant public. As mentioned above, even highly attentive consumers need to rely on their imperfect recollection of the signs.

Considering all the above, there is a likelihood of confusion on the part of the French-speaking part of Benelux public.

Therefore, the opposition is well founded on the basis of the opponent’s Benelux trade mark registration No 1 384 896. It follows that the contested trade mark must be rejected for all the contested goods and services.

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

Gueorgui IVANOV

Anna PĘKAŁA

Lars HELBERT

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.