OPPOSITION Nо B 3 126 557

 

Al Madinah Dates Company (Tomoor), Othman bin Affan Road, Alghabah Dist., 41422 Al Madinah Al-Munawarah, Saudi Arabia (opponent), represented by Kolonko Rechtsanwälte, Niedenau 13-19, 60325 Frankfurt am Main, Germany (professional representative) 

 

a g a i n s t

 

Oman Dates Production And Packaging Co. (S.A.O.C), Nahda Tower #2, 8th Floor, Office No. 6, Ghala, 130 Muscat, Oman (applicant), represented by Dennemeyer & Associates Sp. Z.O.O., Ul. Swarzewska 57/1, 01-821 Warszawa, Poland (professional representative).

On 13/07/2021, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 126 557 is rejected in its entirety.

 

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

 

REASONS

 

On 22/07/2020, the opponent filed an opposition against all the goods and services of European Union trade mark application No 18 224 303

(figurative mark).

The opposition is based on EUTM registration No 17 993 942

.

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 goods on which the opposition is based are the following:

 

Class 29: Dates, dried dates, processed dates, medjool dates; fruit desserts; fruit snacks; processed fruit; preserved fruit; dried fruit; prepared fruit.

Class 31: Fresh, raw and unprocessed dates; fresh, raw and unprocessed fruit.

The contested goods and services are the following:

Class 29: Dates; Edible fats; Edible oils; Frozen fruits; Fruit chips; Fruit jellies; Preserved fruits; Fruit pulp; Stewed fruit; Fruit-based snack food; Crystallized fruits; Frosted fruits; Jams; Jellies for food; Vegetable juices for cooking; Milk beverages, milk predominating; Milk shakes; Fruit peel; Pickles; Fruit salads.

Class 30: Cereal based snack foods; Fruit jellies [confectionery]; Golden syrup; High-protein cereal bars; Molasses for food; Oat-based food; Cereal-based snack food; Sugar; Sugar confectionery; Natural sweeteners; vinegar.

Class 31: Almonds [fruits]; Animal fattening preparations; Animal foodstuffs; Berries, fresh fruits; Cattle food; Fodder; Forage; Fresh fruit; Fruit residue [marc]; Livestock fattening preparations; Marc; Palm trees; Palms [leaves of the palm tree]; Raw barks; Plant seeds; Stall food for animals; Strengthening animal forage.

Class 32: Non-alcoholic beverages; Non-alcoholic cocktails; Non-alcoholic fruit extracts; Non-alcoholic fruit juice beverages; Fruit juices; Fruit nectars, nonalcoholic; Fruit juice; Syrups for beverages; Soft drinks.

Class 35: Business research; Presentation of goods on communication media, for retail purposes; Sales promotion for others; Distribution of samples; Secretarial services; Telemarketing services; Television advertising; Organization of trade fairs for commercial or advertising purposes; On-line advertising on a computer network; Organization of exhibitions for commercial or advertising purposes; Outdoor advertising; Production of advertising films; Publicity material rental; Publication of publicity texts; Radio advertising and commercials; Presentation of goods on communications media, for retail purposes; Commercial information and advice for consumers [consumer advice shop]; Direct mail advertising; Dissemination of advertising matter; Import-export agencies; Commercial administration of the licensing of the goods and services of others; Marketing; Marketing research; Advertising; Marketing studies.

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.

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.

Contested goods and services in Classes 29, 30, 31 and 35

Some of the contested goods in these classes are identical to the opponent’s goods, for example, dates and frozen fruits are identically included in both lists. Other contested goods are dissimilar such as, for example, the contested animal fattening preparations; animal foodstuffs; cattle food; fodder; forage; livestock fattening preparations; stall food for animals; strengthening animal forage since these contested goods are essentially food for animals, therefore, they have nothing in common with the opponent’s goods consisting of processed and fresh fruits since they do not usually coincide in their producers, methods of use, distribution channel and customers. Furthermore, they are neither in competition nor complementary. However, for the sake of procedural economy, the Opposition Division will assume that all the contested goods in these Classes are identical or at least similar to the opponent’s goods.

Contested goods in Class 32

The contested non-alcoholic beverages; non-alcoholic cocktails; non-alcoholic fruit extracts; non-alcoholic fruit juice beverages; fruit juices; fruit nectars, nonalcoholic; fruit juice; syrups for beverages; soft drinks are similar to a low degree to the opponent’s fresh fruits since these contested goods have fruit as their important ingredient. They are produced directly by processing fruit, the methods for which are fundamentally the same. Accordingly, these goods are frequently offered for sale by the same manufacturers and target the same 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 assumed to be identical or similar are directed at the public at large or at business consumers.

The degree of attention is considered to be average for the goods while it may be above average as regards the services, depending on their price pr terms and conditions.

c) The signs

Earlier trade mark	Contested sign

 

The relevant territory is the European Union.

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 complex figurative mark consisting of a number of elements, namely a verbal element which may be perceived as ‘omoor’ or ‘Tomoor’ with highly stylized initial ‘T’, some Arabic letters, depiction of a palm tree with red fruits and two mosque-like buildings in green and black. All these elements are placed inside a rather simple hexagonal frame. The palm tree evokes the idea of the relevant goods having oriental origin and they, thus, have a below average distinctiveness while the mosques also allude to a place possibly in the Arabic world, however, they do not have a direct relation with the goods and are, thus, distinctive. Furthermore, the concept of an oriental country or location is confirmed by the, meaningless, verbal element of Arabic letters. As for the remaining elements, ‘omoor’ or ‘Tomoor’ is meaningless and distinctive while the frame serves decorative purposes. Given their similar size and position in the sign, none of the signs’ elements inside the frame are visually more dominant than the other one.

The contested sign consists of a letter sequence appearing to be of Arabic letters, and the verbal element ‘TUMOOR’ followed by two rhombuses. All of these elements are placed vertically. The verbal element ‘TUMOOR’ is meaningless and distinctive and so is the letter sequence consisting of Arabic letters. The two geometrical forms essentially serve decorative purposes. Of the sign’s elements, it is the sequence of Arabic letters which has a visually, if not dominant, but preponderant role, given its larger size and central position in comparison with the remaining elements.

Visually, the signs coincide in the letter sequence ‘-moor’ or ‘T-moor’. The signs differ in their remaining elements in relation to which reference is made to the preceding paragraphs specifying their possible meaning and degree of distinctiveness. Taking into account both marks as a whole, the Opposition Division is of the opinion their widely different elements, structure, colours and typeface set them significantly apart. The earlier mark is a rather complex combination of verbal, figurative and colour elements a vast majority of which is completely missing in the contested sign. In addition, even the coinciding letter sequence is presented in different font and layout. Overall, the signs are considered to be similar to a very low degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘-moor’ or ‘T-moor’ present in both signs. Accordingly, they will be aurally referred to as ‘omoor’/’Tumoor’ or ‘tomoor’/’Tumoor’, therefore they are similar to a high degree or an average degree, depending on how consumers perceive them.

Conceptually, as explained above, the earlier mark evokes the concept of a mosque, a palm tree and its fruits. In addition, the rather vague concept of oriental origin evoked by the Arabic letters is present in both signs. Furthermore, the contested sign also conveys the very vague concept of two geometric forms lacking distinctiveness of note. Overall, the signs coincide in a vague concept and present numerous additional concepts of varied distinctiveness. Therefore, the signs are similar, at best, 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.

 

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, despite the presence of an element of weaker distinctiveness, as stated above in section c) of this decision.

 

e) Global assessment, other arguments and conclusion

 

Some of the contested goods are similar to a low degree, while the remaining goods and services are assumed to be identical or similar. The signs are visually and conceptually similar to a very low degree and, aurally they are similar to a high or average degree. In particular, as described above, the earlier mark is composed of a significantly larger number of elements presented and structured in an eye-catching manner while, in contrast, the contested sign contains much fewer elements in different colour and layout. While it is possible that consumers spot the similarities between the verbal elements present in the signs, the assessment of any phonetic similarity is but one of the relevant factors for the purpose of global assessment. In the present case, the earlier mark’s additional elements, structure, colours and stylisation create overwhelming visual and conceptual differences between the signs, which is considered to be sufficient to counteract the aural similarities. Even considering that consumers usually have imperfect recollection, the differences are memorable and will create a lasting impression to such an extent that consumers are unlikely to confuse the signs.

Furthermore, it is recalled that most of the goods at issue 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). It is also noted that while the aural similarity may at times be important as regards the contested goods in Class 32, these were found to be similar only to a low degree to some of the opponent’s goods.

Based on all the foregoing, and weighing up all the relevant factors, the Opposition Division concludes that the significant differences between the signs are not counteracted by the similarities.

 

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

 

Liliya YORDANOVA

Ferenc GAZDA

Octavio MONGE GONZALVO

 

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.