OPPOSITION Nо B 3 128 753

 

Mecom Group s.r.o., Poľná 4, 066 01 Humenné, Slovakia (opponent), represented by Petronella Ary, Csapó str. 6. I/8., 4024 Debrecen, Hungary (professional representative) 

 

a g a i n s t

 

Pick Szeged Szalámigyár és Húsüzem Zrt., Szabadkai út 18, 6725 Szeged, Hungary (applicant), represented by Szűcs Law Office, Munkácsy M. u. 3., 1063 Budapest, Hungary (professional representative).

On 28/07/2021, the Opposition Division takes the following

 

 

DECISION:

1.	Opposition No B 3 128 753 is rejected in its entirety.

 

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

 

REASONS

 

On 18/08/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 217 509 (figurative mark). The opposition is based on, inter alia, Hungarian trade mark registration No 207 629 ‘Hungaria Szalámi’ (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.

 

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 Hungarian trade mark registration No 207 629 ‘Hungaria Szalámi’ (word mark), since it is the most similar to the contested sign.

a) The goods

 

The goods on which the opposition is based are the following:

Class 29: Salami and sausages originating from Hungary, dry meat products, charcuterie.

The contested goods are the following:

 

Class 29: Meat and meat products; cured sausages; meat extracts; salami; edible oils and fats.

Some of the contested goods are identical or similar to the goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

 

 

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 assumed to be identical are directed at the public at large whose degree of attention is average since they are goods for daily consumption.

c) The signs

 

Hungaria Szalámi
Earlier trade mark	Contested sign

 

The relevant territory is Hungary.

 

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 composed of the two verbal elements ‘Hungaria’ and ‘Szalámi’. Although the word ‘Hungaria’ does not exist as such in the Hungarian language, as correctly pointed out by the opponent, this term is the Latin word for Hungary. Therefore, although fanciful in itself, this word will also be linked in the minds of the relevant Hungarian consumers to something that originates in Hungary and, therefore, it has a weak inherent distinctive character, since it provides information about the origin of the relevant goods.

The word ‘Szalámi’ means ‘salami’, which is non-distinctive for the goods at hand.

The contested sign is a figurative sign composed of the verbal elements ‘Duna’ written above the two words ‘Hungarian Salami’, in much smaller letters. Reference is made to the above mentioned meanings regarding the elements ‘Hungaria’ and ‘Szalámi’, which are applicable to the similar terms ‘Hungarian’ and ‘Salami’, as they will be perceived with the same meanings by the relevant public and, therefore, have the same degree of inherent distinctiveness. The element ‘Duna’ means ‘Danube’ in Hungarian, therefore it is distinctive since it has no direct relation to the goods at issue. The image depicted behind, showing a river, a bridge and the two sides of land, alludes to the same concept. Due to its size and position, the word ‘Duna’ is also the most eye-catching verbal element, and therefore the dominant verbal element within the contested sign. Under those verbal elements, the Hungarian flag and a picture of a toast of bread with apparently containing sausages or salami.are depicted. Since those elements allude directly to the characteristics and the nature of the goods, they are not distinctive. All the above elements are depicted on a beige oval label, which is merely decorative and therefore lacks distinctiveness.

It has been confirmed by the case-law that consumers generally only refer to the dominant elements in trade marks (03/07/2013, T-206/12, LIBERTE american blend, EU:T:2013:342, § 43-44) and in any case, that they tend to shorten marks containing several words. This is especially the case when the purely descriptive words can be easily separated from the dominant term (03/07/2013, T-243/12, Aloha 100% natural, EU:T:2013:344, § 34). Given the fact that ‘Duna’ is the dominant and distinctive verbal element within the contested sign, and that the secondary elements ‘Hungarian Salami’ will be perceived as a description of the goods, it is highly likely that the relevant public will not pronounce these elements, but will refer to the contested sign only by the element ‘Duna’.

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). This principle fully applies as regards the contested sign.

Visually, the signs coincide in the letters ‘Hungaria* S*alami’. They differ in the additional letter ‘z’ in the element ‘Szalámi’ of the earlier sign, as well as the additional word ‘Duna’ and the letter ‘n’ at the end of ‘Hungarian’ in the contested sign. The signs also differ in all the figurative elements of the contested sign, which do not have a counterpart in the earlier sign. Therefore, taking into account the distinctiveness and relative size of the different elements, the signs are visually similar to a low degree.

 

Aurally, if, as stated above, the relevant public does not pronounce the elements ‘Hungarian Salami’ of the contested sign (which is the most likely event), the signs are aurally dissimilar. Even if the relevant public pronounces these elements, and therefore the signs coincide in the pronunciation of the letters ‘Hungaria* S*alami’, and differ in the sound of the word ‘Duna’ and in the last ‘n’ at the end of the word ‘Hungarian’ in the contested sign, taking into account the distinctiveness of the different elements, the signs are aurally similar to a below average degree.

 

Conceptually, the signs coincide only in non-distinctive or weak elements (reference to the above meanings perceived in the elements ‘Hungaria(n)’ and ‘S(z)alami’). The figurative elements, namely the Hungarian flag and the slide of bread containing sausages or salami, in the contested sign evoke the same concepts. Since the word ‘Duna’ (fully distinctive) and the image of the Danube river in the contested sign convey different concepts, the signs are conceptually similar to a 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.

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 alludes to a meaning related to the nature and characteristics of the goods in question from the perspective of the public in the relevant territory. Therefore, and considering what was stated above in part c) of this decision, the distinctiveness of the earlier mark must be seen as low.

e) Global assessment, other arguments and conclusion

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).

The contested goods were assumed to be identical to the opponent’s goods. They are directed at the public at large whose degree of attention is normal, since they are daily consumption goods.

The signs under comparison are visually and conceptually similar to only a low degree, while they are aurally dissimilar (in the most likely event) or similar to a below average degree, on account of the fact that the only coincidence lies in the words ‘Hungaria’/‘Hungarian’ and ‘Szalámi’/’Salami’, for which the distinctive character is at best limited. In addition, the verbal element ‘Duna’ is distinctive and it is the most dominant verbal component of the contested sign. The only similarities between the signs stem from elements that are weak or non-distinctive and they occupy a clear secondary position within the contested sign. Therefore, the similarities are not sufficient to lead to a likelihood of confusion or association on the part of the public.

Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

 

As the earlier Hungarian trade mark registration No 207 629 ‘Hungaria Szalámi’ (word mark) does not lead to the success of the opposition, the Opposition Division will examine the other earlier rights invoked by the opponent, namely:

 European Union trade mark registration No 15 274 351 (figurative mark);

 European Union trade mark registration No 15 274 376 (figurative mark).

Those earlier rights both cover the following goods, on which the opposition is based:

Class 29: Meats; salami; sausages.

The other earlier rights invoked by the opponent are less similar to the contested mark. This is because they contain further figurative elements and additional words, which lead them to be even less similar than the earlier right already compared, which was a word mark. This is so even taking into account the meanings in the remaining languages of the European Union of the elements of the signs, since there is no language where the coinciding elements have a higher degree of distinctiveness than in Hungarian, already compared above, and therefore, the degree of similarity can in no case be higher than in the comparison already made. Therefore, the outcome cannot be different with respect to goods for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods.

For the sake of completeness, the other earlier Hungarian trade marks referred to by the opponent in its submissions cannot be taken into consideration, because they were not claimed as basis of the present opposition and, furthermore, they are ‘no longer in use’, as stated by the opponent.

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

 

 

Marta GARCÍA COLLADO

Helen Louise MOSBACK

Inês RIBEIRO DA CUNHA

 

 

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.