OPPOSITION Nо B 3 117 517

 

Orkla Foods Česko A Slovensko A.S. (Formerly Vitana A.S.), Mělnická 133, 27732 Byšice, Czech Republic (opponent), represented by Traplová Hakr Kubát Advokátní A Patentová Kancelář, Přístavní 24, 170 00 Praha 7, Czech Republic (professional representative) 

 

a g a i n s t

 

Caliano Gregorio, Via Volpari N. 12, 83025 Montoro, Italy (applicant), represented by Studio Legale Associato Cerino D'angelo, Via Passariello N. 4, 80038 Pomigliano D'arco, Italy (professional representative).

On 10/06/2021, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 117 517 is rejected in its entirety.

 

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

 

REASONS

 

On 30/04/2020, the opponent filed an opposition against some of the goods of European Union trade mark application No 18 180 523 (figurative mark), namely against some of the goods in Classes 29 and 30. The opposition is based on Czech trade mark registration No 158 606 ‘VEGETA’ (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 29: Vegetable mixtures with extracts for flavoring food.

Class 30: Vegetable mixtures with extracts for flavoring food.

The contested goods are the following:

 

Class 29: Processed vegetables; Soups and stocks, meat extracts.

Class 30: Salts, seasonings, flavourings and condiments.

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.

 

Contested goods in Class 29

 

The contested processed vegetables; soups and stocks, meat extracts are at least similar to the opponent’s vegetable mixtures with extracts for flavoring food. These goods usually coincide in at least their producers, relevant public, distribution channels and method of use. Furthermore, at least some of them are in competition.

Contested goods in Class 30

The opponent’s vegetable mixtures with extracts for flavoring food in this class are vegetable seasoning mixes with added extracts and are used to flavour food. Therefore, the contested seasonings, flavourings and condiments are at least similar to the opponent’s goods, as they coincide in, at least, their purpose and usually target the same relevant public, follow the same distribution channels and have the same method of use. Furthermore, some of the goods being compared also coincide in nature and others are in competition.

The contested salts are similar to the opponent’s vegetable mixtures with extracts for flavoring food, as they have the same purpose and usually coincide in relevant public, distribution channels and method of use.

Therefore, the contested salts in Class 30 are similar and the remaining contested goods in Classes 29 and 30 are at least similar to the opponent’s goods. In the present case, in order to examine the opponent’s case in the best possible light for the opponent, the Opposition Division will proceed the examination as if the goods which were found to be at least similar are identical to the opponent’s 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 are directed at the public at large. According to the opponent, the degree of attention of the relevant public is low because the goods are basic foodstuffs purchased on a daily basis. However, although the goods at issue may be relatively inexpensive, they are not normally bought on a daily basis, as compared to foods such as bread or milk, for example. Therefore, in the present case, the degree of attention is considered to be average.

 

c) The signs

 

VEGETA
Earlier trade mark	Contested sign

The relevant territory is the Czech Republic.

 

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 is a word mark consisting of the verbal element ‘VEGETA’. In the case of word marks, it is the word as such that is protected and not its written form. Therefore, in principle it is irrelevant whether word marks are in upper- or lower-case letters, unless they deviate from the usual way of writing (e.g. irregular capitalisation), which is not the case here.

The contested sign is figurative and consists of a green device element and of the verbal elements ‘egetal’ and ‘alue’, written one above the other, in fairly standard, white lower-case letters inside the device. The green device has a semi-oval shape and is cut-off in such a manner that the space drawn between its parts evokes a shape similar to that of the consonant ‘V’, placed to the left of the words ‘egetal’ and ‘alue’.

In relation to the contested sign, it should be mentioned that at least part of the relevant public, if not the majority, will perceive it as if containing the English words ‘Vegetal’ and/or ‘Value’. This is because at least part of the relevant public has some knowledge of English and will recognise these words. In addition, as regards the word ‘vegetal’, this is likely to be the case with the entire relevant public due to the existence of fairly close counterparts in Czech language (e.g. ‘vegetariánský’, ‘vegetarián’). As to the word ‘Value’, it will be recognised and understood only by those consumers with sufficient knowledge of English. Therefore, in order to avoid examining multiple scenarios and possibilities of interpreting the contested sign, the Opposition Division will assess the contested sign as if consisting of the words ‘Vegetal’ and ‘(v)alue’. This is the most likely scenario and it includes the most advantageous scenario for the opponent (being when both words are perceived and understood, as in that case the similarities between the signs would be higher). Furthermore, in their observations, both parties refer to the contested sign as if containing both words.

In the present case, the earlier mark has no dominant elements, as it is a word mark. With regard to the contested sign, the opponent argues that the element ‘vegetal’ will be perceived by relevant consumers as a dominant element of this sign. However, the Opposition Division does not agree and considers that the contested sign has no element(s) that could be considered clearly more dominant (visually eye-catching) than other elements. This is because all the elements in the sign are clearly visible and in spite of the slightly bigger size of the green device as compared to the words, none of the elements of the contested sign clearly overshadows the other by virtue of its position and/or size. Therefore, it is concluded that the contested sign has no dominant elements.

Indeed, as argued by the opponent, 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 verbal elements should, in principle, be considered more distinctive than the figurative elements.

 

In the present case, the green device of the contested sign, albeit not being exceptionally fanciful, is not a banal or commonly used shape. Indeed, bearing in mind the nature of the goods, the colour green evokes that that the goods are ecological. Nevertheless, due to the slightly unusual shape, it cannot be said that the green device is completely devoid of distinctiveness and it is considered that the device element has some, though fairly low distinctive character. Furthermore, as will be seen below, at least the word element ‘vegetal’ (and also, possibly, ‘value’) of the contested sign cannot be considered to be particularly distinctive either.

The opponent argues that earlier trade mark ‘VEGETA’ will not be associated with any meaning by relevant consumers in the Czech Republic and that, for the majority of the relevant Czech consumers, the verbal element of the contested mark ‘VEGETAL’ will be also perceived as fanciful. According to the opponent, this is the case because the English word ‘VEGETAL’ does not belong to basic English vocabulary and bears no direct resemblance to the equivalent word in Czech (i.e. rostlinný/zeleninový). In addition, according to the opponent, the second verbal element ‘VALUE’ of the contested sign has a merely laudatory and promotional character and the relevant consumers will perceive it as a mere reference to the favourable price of such goods. In the opponent’s opinion, the element ‘VALUE’ may be considered a part of basic English vocabulary that is known to most consumers in the Czech Republic and points out as an example the existence of the ‘widely known and recognised range of products “TESCO VALUE” sold by Tesco supermarkets in the Czech Republic since 2001’.

In this respect, the Opposition Division refers to what the Board of Appeal stated in its decision of 12/09/2017, R 2364/2016-4, Vegea (fig.)/Vegeta, § 26 et seq.. In particular, the Board found that:

The word element ‘VEG’ in English is an abbreviation for ‘vegetables’ (Collins English Dictionary). The element ‘VEGE-’ is a prefix used in many basic words in different languages of the European Union, the root of which is the Latin verb ‘vegetare (past participle ‘vegetat-‘), such as for example, ‘vegetarian’ or ‘vegeburger’ in English, ‘vegetal’, ‘végétal’, ‘végétation’ or végétarien’ in French, ‘vegetal’ or ‘vegetariano’ in Spanish and Portuguese, ‘vegetale’ or ‘vegetariano’ in Italian, ‘vegetarisch’ or ‘Vegetarier’ in German, ‘vegetarish’ or ‘vegetariër’ in Dutch, ‘vegetarisk’ in Swedish, ‘vegetarián‘ in Slovak, ‘vegetáriánus‘ in Hungarian, ‘vegetariánský’ in Czech, ‘vegetarijanska’ in Slovenian, ‘vegetariškas’ in Lithuaniane etc. Linguistic equivalents exist in other languages, such as ‘wegetariański’ in Polish or ‘вегетарианец’ (vegetarianets) in Bulgarian.

Therefore, and as already mentioned above, due to the existence of very close counterparts in Czech language (e.g. ‘vegetariánský’, ‘vegetarián’), it is considered that the beginning of both the earlier and the contested sign, namely ‘VEGET-’ or at least ‘VEG(E)-’ will be associated with ‘vegetarian’ by the entire relevant public, irrespective of its knowledge or lack of knowledge of basic English. Bearing in mind the nature of the relevant goods, namely vegetable mixture, processed vegetables as well as soups and stocks, meat extracts, seasonings, flavourings and condiments and salts that contain/can be mixed with vegetables or be used for vegetables or by vegetarians, it is considered that this element is weak and even descriptive in relation to the goods in question, insofar as these products can have a vegetable origin or are destined for vegetarians or vegans.

As found by the Board of Appeal (see by analogy 12/09/2017, R 2364/2016-4, VEGEA (fig.) / Vegeta, § 28), with respect to the earlier mark, the above findings also imply that the sign ‘VEGETA’ as a whole has little distinctive character given the concept it evokes, since, bearing in mind the examples given above, the relevant consumers are accustomed in seeing this letter combination in other words, despite the fact that ‘VEGETA’ as such does not exist. Therefore, although the word ‘vegeta’ does not exist as such in Czech, it is considered that the inherent distinctiveness of the earlier mark must be seen as below average. Since the earlier mark is a registered mark, it is necessary to acknowledge automatically a certain degree of distinctiveness of it (24/05/2012, C-196/11 P, F1-Live, EU:C:2012:314, § 47). Likewise, although the word element ‘vegetal’ of the contested sign may not exists in Czech language as such, its inherent distinctiveness is low, at best, because the addition of ‘AL’ will not prevent it from being associated with the concept indicated above.

As to the element ‘Value’ of the contested sign, it will be understood by the relevant consumers with sufficient knowledge of English. Bearing in mind its meaning, its distinctiveness is low, at best, as it alludes to the beneficial monetary worth of the goods. However, for those consumers with no/insufficient knowledge of English, this element has no meaning and its distinctiveness is normal. Moreover, it is very likely that the non-English speaking consumers will only perceive ‘alue’, and not the entire word ‘value’. In any case, as neither ‘value’ or ‘alue’ of the contested sign has any meaning for them, the distinctiveness of the second verbal element of the contested sign would be normal.

In view of all the above, as regards the contested sign, it can be held that, in relation to the consumers (those with sufficient knowledge of English) for which all of its verbal elements are perceived as weak/lowly distinctive, it cannot be held that the verbal elements in the contested sign are more distinctive than the figurative elements; in that case, it is rather the particular combination of all of its elements that renders it distinctive character.

Visually, the signs coincide in the string of letters /*EGETA*/. Although, as mentioned above, the first verbal element ‘vegetal’ of the contested sign is also perceived to start with the letter ‘V’ by the relevant examined part of the public, and this letter is the same as the initial letter ‘V’ of the earlier mark, this coincidence is not visually relevant. This is because the representation of the ‘V’ in both signs is so different that it does not constitute, from a purely visual perspective, a similarity. Therefore, contrary to the opponent’s argument, the signs do not coincide visually in their beginning. In addition, the signs differ in the additional elements of the contested sign, which have no counterparts in the earlier mark, namely the additional final letter ‘l’, the additional word ‘(v)alue’ and the green device. The structure of the marks is also different: a single word of six letters versus a composite mark with two verbal elements fitted into a device element.

Therefore, although nearly the entire earlier mark is reproduced in the first verbal element of the contested sign, bearing in mind the different structure and length of the signs as well as the fact that the coincidences are found in weak elements which have reduced distinctive force, it is considered that signs are visually similar to a low degree, at best.

Aurally, the pronunciation of the signs coincides in the sound of /VEGETA*/ and differs in the final ‘L’ and in the sound of the additional second verbal element ‘(v)alue’ of the contested sign, which has no counterpart in the earlier mark. The coincidences between the marks are on account of lowly distinctive elements, which reduces the strength and impact of the coincidence, especially in relation to the non-English speaking part of the relevant consumers, for whom the additional second verbal element ‘(v)alue’ of the contested sign is meaningless and distinctive. Nevertheless, as explained above, the element ‘value’ of the contested sign is also weak for the English-speaking part of the Czech consumers and its distinctiveness will be equally weak and diminished as that of ‘vegetal’ that precedes it. Therefore, the pronunciation of the signs is closest (resulting in the greatest possible degree of aural similarity) when all the elements of the contested sign are perceived as lowly distinctive. In that case, bearing in mind that the earlier mark also contains a lowly distinctive element, it is considered that signs are aurally similar, albeit to a below average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the verbal elements of the marks. Therefore, the word elements ‘VEGETA’ and ‘VEGETAL’ of the signs will be associated by the relevant consumers with the same concept, evoking ‘vegetable’ or ‘vegetarian’ and, therefore, alluding to foods of vegetable origin and/or destined for vegetarians. Consequently, the signs share the same weak notion and there is a conceptual similarity which, however, is not to be overestimated and cannot be given too much weight, as its impact will be very low (16/12/2015, T-491/13, Trident Pure, EU:T:2015:979, § 93 and 108). The signs are thus conceptually similar to a very low degree.

 

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 trade mark enjoys a high degree of distinctiveness as result of its long standing and intensive use in the Czech Republic in connection with all the goods on which the opposition is based. This claim must be properly considered given that the distinctiveness of the earlier trade mark must be taken into account in the assessment of likelihood of confusion. Indeed, the more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 18).

 

The opponent submitted the following evidence (Evidence 1 to 28; 304 pages):

 

Evidence 1: Printout of 19/08/2020 from ‘dTest’ magazine showing an article dated August 2018 titled ‘Comparison: Vegetable flavoring mixtures’ presenting various foodstuffs. In the comparison, ‘dTest’ compares vegetable flavoured mixtures, including the product ‘Vitana Vegeta original’.

Evidence 2: A leaflet from ‘Astur & Qanto’ for the period 1.12 - 31.12.2018 showing inter alia, a ‘Vegeta’ product.

Evidence 3 and 4: ‘JIP’ leaflet for the period 1.3.2019 – 31.3.2019, showing inter alia, ‘Vegeta’ products.

Evidence 5: Printout from www.ferpotravina.cz providing information about ‘Vegeta Original’, posted on 26/11/2018, such as data about its composition and nutritional values.

Evidence 6: Printout from www.heureka.cz showing ‘Vitana Vegeta’ and its price development dating back to 27.8.2017.

Evidence 7: Printout from Rohlík.cz, an online supermarket, showing information about ‘Vitana Vegeta original’ product.

Evidence 8: Printout from www.heureka.cz showing ‘Vegeta’ product and its price development dating back to 16.4.2017.

Evidence 9: ‘JIP’ leaflet for the period 27.2.2019 – 12.3.2019 , showing inter alia, a ‘Vegeta’ product.

Evidence 10: ‘Penny Market’ leaflet for the period 14.6 – 17. 6. 2018 showing inter alia, a ‘Vegeta’ product.

Evidence 11: Printout from the Czech Television ‘Česká televise’ showing that ‘Vegeta’ appeared in the program ‘Černé ovce’, broadcasted on 19.2.2019. The opponent explains that the TV show compared vegetable flavoured mixtures based on the ‘dTest’ comparison (Evidence No. 1).

Evidence 12: Printout from www.wikipedia.org showing the entry for ‘Vegeta’. It is mentioned, inter alia, that in the Czech Republic, ‘Vegeta’ is manufactured by ‘Vitana’ in Varnsdorf and that the company ‘Vitana’ offers 3 types of ‘Vegeta’: ‘Vegeta Original’, ‘Vegeta Pikant’ and ‘Vegeta Herbal’. Furthermore, the article mentions that company ‘Vitana’ is the owner of the ‘Vegeta’ trade mark rights in the Czech Republic since 1969.

Evidence 13: Printout from Vitana’s Facebook page showing a picture of ‘Vegeta’ product posted on 18.7.2018.

Evidence 14 and 15: Printout from blog.pilulka.cz pharmacy showing an article and a competition for prizes promoting ‘Vitana’ products, including ‘Vegeta’, dated 27.3.2017 and a printout from https://blog.pilulka.cz showing an article and a competition for prizes promoting ‘Vitana’ products, including ‘Vegeta’, dated 22.5.2017.

Evidence 16: Printout from ‘Gastro&Hotel’ magazine website showing a recipe published on 7.7.2013 referring to ‘Natur Vegeta Vitana’ as one of the ingredients.

Evidence 17: Leaflet from a Czech food retailer for the period 28.9 – 11.10.2015 showing, inter alia, ‘Vegeta’.

Evidence 18: Advertising leaflet showing ‘Vegeta’ products (date not indicated).

Evidence 19: Printout from the opponent’s website www.vitana.cz showing ‘Vegeta’ products.

Evidence 20: (2 pages) Article from ‘Retail News’ dated October, 2016. The title of the article is ‘Spices and Seasonings’. The opponent explained the following:

‘Part of the article is a chart (p.42) showing the results of a survey in which the consumers were asked what brands of condiments they usually use. Out of ten products, Vitana’s product ‘Vegeta’ ranked as the third most commonly used by consumers (32,9% consumers are using this product). Under the chart, there is information that the sources for this survey were obtained from MEDIAN, Market & Media &Lifestyle – TGI, and the data were obtained in the first and second quarters of the year 2016. The article itself describes consumer’s preferences and trends observed in relation to spices, seasonings and condiments.

On p. 43, there is a brief article within the yellow background with a title „Spices in purchases of households“. This article describes consumer behaviour in relation to the purchases of spices and seasonings, based on the data obtained from a market survey conducted by the method of Consumer Panel between July 2015 and June 2016.’

Evidence 21: Article published in the Czech magazine ‘Ona Dnes’ showing an advertisement for ‘Vegeta’ products.

Evidence 22 to 26: Invoices dated in the period 2014 to 2017, itemising the sale of various goods, inter alia, ‘Vegeta’.

Evidence 27 and 28: Leaflets from: the supermarket ‘Coop HB’ for the period 31.7.2019 – 13.8.2019, the supermarket ‘Brněnka’ for the period 23.10 - 3.11.2019, the supermarket ‘ČEPOS’ for the period 9.10.2019 – 1.11.2019, the supermarket ‘COOP’ for the period 13.2-26.2.2019 and 4.12-31.12.2019 and the supermarket ‘JIP’ for the period 1.11.2019-30.11.2019 showing ‘Vegeta’ products.

Evidence 29: Catalogue for the year 2019 of ‘Orkla’ foods company, showing a variety of products, inter alia, ‘Vegeta’ products (on page 64 and 85).

When assessing distinctiveness acquired through use of the earlier mark, the Court has given some guidance in respect of its evaluation and provided a non-exhaustive list of factors.

In making that assessment, account should be taken, in particular, of the inherent characteristics of the mark, including the fact that it does or does not contain an element descriptive of the goods or services for which it has been registered; the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 23).

Having examined the material listed above, the Opposition Division concludes that the evidence submitted by the opponent does not demonstrate that the earlier trade mark acquired a high degree of distinctiveness through its use. The documents show that the opponent used and promoted its trade mark in the relevant territory but there is no evidence enabling the Opposition Division to establish that as a result of such use, a certain degree of knowledge amongst the relevant public exists. The opponent refers to Evidence 16 and 20 and argues that they show that ‘Vegeta’ products are popular amongst Czech consumers. Indeed, the article shown as Evidence 20 shows that the product ‘Vegeta’ ranked as the third most commonly used by consumers (32,9% consumers are using this product). However, there is no information whatsoever about the survey itself, such as the number and profile of the interviewees, the method and circumstances under which the survey was carried out and the complete list of questions included in the questionnaire. Furthermore, the survey refers to the first and second quarters of the year 2016, which is quite some time before the relevant date of filing of the contested trade mark application (14/01/2020). Therefore, the Opposition Division is unable to ascertain the reliability and probative value of the survey results. Similarly, as regards Evidence 1, the opponent failed to provide any explanation as to the relevance of the tests performed by ‘dTest’ magazine and it is not possible to appreciate and attach any meaningful value to this piece of evidence. In relation to Evidence 16, it merely shows that there is a ‘Vegeta’ product and it is used in the recipe published in the ‘Gastro&Hotel’ magazine website. The Opposition Division is unable to extract or determine, on the basis of the evidence submitted, any direct or indirect indication as regards the degree of recognition of the trade mark among the relevant public. The opponent had to present appropriate evidence, enabling the Opposition Division to conclude that at least some part of the relevant consumers recognizes the opponent’s mark as a mark that has acquired an enhanced degree of recognition amongst the relevant public.

Therefore, in the lack of appropriate evidence and for the reasons explained above, it is considered that the evidence does not show that earlier mark acquired a high degree of distinctiveness or reputation through its use on the market.

 

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as below average for all the goods.

 

e) Global assessment, other arguments and conclusion

 

A likelihood of confusion on the part of the public must be assessed globally which implies some interdependence between the relevant factors, and, in particular, a similarity between the marks and between the goods and/or services. Accordingly, a lesser degree of similarity between the goods and/or 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).

The contested goods are considered identical or similar to the opponent’s goods. The relevant goods are directed at the public at large and the degree of attention is average. The opponent failed to demonstrate that the earlier trade mark acquired an enhanced degree of distinctiveness through its use. Therefore, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se, which is below average for all the goods.

The marks are visually similar to a low degree, at best, and they are aurally similar to a below average degree. The signs are conceptually similar to a very low degree.

Taking into account all the circumstances of the case, it is concluded that low visual similarity (at best), the below-average aural similarity and the very low conceptual similarity between the signs are not sufficient and are counterbalanced by the differences between them. The earlier mark has a lower than average distinctive character and the similarities established between the signs are on account of weak/lowly distinctive elements that cannot be accorded any great significance. In addition, the contested sign has additional verbal and figurative elements that are not found in the earlier mark and that are either equally distinctive, or more distinctive (for at least part of the relevant consumers for whom ‘(v)alue’ is inherently distinctive).

The opponent argues that the aural perception of the signs in the present case is important, as the relevant goods are found in retail stores, in which the level of noise is increased. However, it should be borne in mind 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).

Bearing in mind all the above, in view of the below average distinctive character of the earlier mark and the at most low visual, below-average aural and very low conceptual similarity between the signs, it is considered that the differences between the signs are sufficient to exclude any likelihood of confusion, including likelihood of association, even taking into account the abovementioned principle of interdependence and even in relation to identical goods.

In the present case, even considering that consumers only rarely have the chance to make a direct comparison between the different marks, the differences in the signs are significant and sufficient to exclude any likelihood of confusion between the marks.

This absence of a likelihood of confusion equally applies to the part of the public for which the verbal elements of the contested sign are perceived without the initial ‘V’, namely as ‘egetal’ and ‘alue’. This is because, as a result of such perception these elements will be meaningless and distinctive and that part of the public will perceive the signs as being even less similar.

Consequently, it can be concluded that the differences between the signs are striking enough to rule out any likelihood of confusion between the signs. Therefore, a likelihood of confusion, including a likelihood of association, on the part of the relevant public can be safely excluded in spite of the identity or similarity of the goods.

 

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

 

 

Justyna GBYL

Liliya YORDANOVA

Anna PĘKAŁA

 

 

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.