OPPOSITION Nо B 3 122 858

 

Leksands Knäckebröd AB, Gärde Stationsvägen 11, 793 50 Leksand, Sweden (opponent), represented by Ehrner & Delmar Patentbyrå Ab, Götgatan 78, 118 30 Stockholm, Sweden (professional representative) 

 

a g a i n s t

 

As Hesburger, Uusaru 3 Saue City, 76505 Harju County, Estonia (applicant), represented by Kolster Oy Ab, Salmisaarenaukio 1, 00180 Helsinki, Finland (professional representative).

On 11/06/2021, the Opposition Division takes the following

 

 

DECISION:

 

 

1.	Opposition No B 3 122 858 is rejected in its entirety.

 

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

 

REASONS

 

On 01/06/2020, the opponent filed an opposition against some of the goods and services of European Union trade mark application No 18 191 210 ‘Veke’ (word mark), namely against some of the goods in Class 30. The opposition is based on Swedish trade mark registration No 512 069, ‘VIKA’ (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 30: Bread

 

The contested goods are the following:

 

Class 30: Bread; Pastries, cakes, tarts and biscuits (cookies).

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.

Bread is identically contained in both lists of goods.

The contested pastries, cakes, tarts and biscuits (cookies) are similar to the opponent's bread because they coincide in producer, distribution channels and relevant public.

 

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. The degree of attention is average.

 

c) The signs

 

VIKA	Veke
Earlier trade mark	Contested sign

 

The relevant territory is  Sweden.

 

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).

As correctly indicated by the applicant, in Swedish ‘VIKA’ means ‘to fold’, whereas, ‘veke’ means ‘wick’, i.e. cord or band of loosely twisted or woven fibres, as in a candle, cigarette lighter, etc, that supplies fuel to a flame by capillary action. Since none of these words has any meaning related to the relevant goods, they are distinctive.

Bearing in mind the concepts the marks convey, the signs are conceptually not similar.

Visually and aurally, the signs coincide in the letters/phonemes ‘V*K*’ and they differ in their second and fourth letters which in both cases are vowels. The signs are not very long and therefore, these differences will not go unnoticed.

The General Court has held that the same number of letters in two marks is not, as such, of any particular significance for the relevant public, even for a specialised public. Since the alphabet is made up of a limited number of letters, which, moreover, are not all used with the same frequency, it is inevitable that many words will have the same number of letters and even share some of them, but they cannot, for that reason alone, be regarded as visually similar. In addition, the public is not, in general, aware of the exact number of letters in a word mark and, consequently, will not notice, in the majority of cases, that two conflicting marks have the same number of letters (25/03/2009, T‑402/07, ARCOL / CAPOL, EU:T:2009:85, § 81-82; 04/03/2010, C‑193/09 P, ARCOL / CAPOL, EU:C:2010:121).

Therefore, the signs are visually and aurally similar to a below average 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.

 

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 and they are directed at the public at large, who displays an average degree of attention. The earlier mark has an average degree of distinctiveness.

Although the signs share two of their four letters/phonemes, even if this is recollected when encountering the earlier mark and detected when the relevant consumer encounters the contested sign, this will be seen as pure coincidence. This is because, where at least one of the signs at issue has a clear and specific meaning that can be grasped immediately, the resulting conceptual difference may offset the visual and aural similarity between the signs (12/01/2006, C‑361/04, Picaro, EU:C:2006:25, § 20). This is the so-called principle of ‘neutralisation’. That impact of conceptual difference is taken into consideration when making the overall assessment of similarity between the signs (05/10/2017, C‑437/16 P, CHEMPIOIL / CHAMPION et al., EU:C:2017:737, § 44; 04/03/2020, C‑328/18 P, BLACK LABEL BY EQUIVALENZA (fig.) / LABELL (fig.) et al., EU:C:2020:156, § 75).

In the present case, both signs have different concepts that will be immediately perceived by the relevant public and they offset the visual and aural similarities, even for the identical goods.

 

Considering all the above, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

 

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

 

 

Meglena BENOVA

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.