OPPOSITION Nо B 3 126 540

 

Atria Oyj, PL 900, 60060 Atria, Finland (opponent), represented by Boco Ip Oy Ab, Itämerenkatu 5, 00180 Helsinki, Finland (professional representative)

a g a i n s t

 

Vega Insiders Group, Achterdijk 1, 5705CB Helmond, Netherlands (applicant).

On 21/07/2021, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 126 540 is upheld for all the contested goods.

 

2.	European Union trade mark application No 18 238 910 is rejected in its entirety.

 

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

 

REASONS

 

On 22/07/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 238 910 ‘VegaYou’ (word mark). The opposition is based on, inter alia, European Union trade mark registration No 18 204 287 ‘VEGYOU’ (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 European Union trade mark registration No 18 204 287.

 

a) The goods

 

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

Class 29: Meat substitutes; prepared meals consisting primarily of meat substitutes; cold cuts and sliced consisting primarily of meat substitutes; sausages and frankfurters consisting primarily of meat substitutes; meat balls consisting primarily of meat substitutes; nuggets consisting primarily of meat substitutes; cutlets consisting primarily of meat substitutes; prepared meals containing meat substitutes with potato, rice, pasta or vegetables as side order; side orders made mainly from potatoes; side orders made mainly from root vegetables; casseroles containing meat substitutes; stuffed cabbage rolls primarily filled with meat substitutes; soups; bacon made from meat substitutes; pâtés consisting primarily of meat substitutes; salads made of potato, root vegetables, vegetables, mushrooms or fruits; mayonnaise based salads made of potato, root vegetables, vegetables or mushrooms; processed root vegetables; hamburgers consisting primarily of meat substitutes; desserts made primarily from fruits and berries; oils and fats; vegetable based pâtés; vegetable chips; vegetable pastes; vegetable salads; prepared vegetable products; vegetable-based spreads; vegetable-based entrees; vegetable-based snack foods; snack foods based on vegetables; vegetable juices for cooking; vegetable spreads; pre-cut vegetable salads; vegetable stock; vegetable powders; dairy products and substitutes therefor; cheese; cheese substitutes; milk drinks substitutes; milk shakes; shakes of milk substitutes; milk shake powder; powered milk or milk substitutes; desserts from milk substitutes in this class; yoghurts and yoghurt substitutes; milk substitutes containing oat; oat milk (milk substitute); oat-based beverages for use as a milk substitute; yoghurts and yoghurt drinks containing oat; sour milk substitutes; sour cream substitutes; cream substitutes; crème fraîche substitutes; non-dairy creamer; oat based cream for cooking and creamers; vegetable-based cream; butter substitutes; margarine substitutes; cheese products made from milk substitutes.

The contested goods are the following:

 

Class 29: Preserved pulses; canned pulses; dried pulses; processed pulses; snack foods based on legumes; legume-based spreads; processed fruits, fungi, vegetables, nuts and pulses; meat pate; meat; cured sausages; sausage skins and imitations thereof; birds eggs and egg products; edible oils and fats; hamburgers; meat jellies; broth; meat preserves; meat spreads; meat substitutes.

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 contested edible oils and fats; broth; meat substitutes are identical to the opponent’s respective oils and fats; soups; meat substitutes either because they are identically contained in both lists (including synonyms) or because the opponent’s goods include, are included in, or overlap with, the contested goods.

The contested meat; meat pate; meat jellies; meat preserves; meat spreads are at least similar to the opponent’s meat substitutes as they may coincide in relevant public, distribution channels and method of use. Furthermore, they are in competition.

The contested cured sausages; sausage skins and imitations thereof; hamburgers are at least similar to a low degree to meat substitutes; hamburgers consisting primarily of meat substitutes; bacon made from meat substitutes; sausages and frankfurters consisting primarily of meat substitutes as they may coincide in relevant consumers, method of use, distribution channels and are in competition.

The contested processed vegetables are highly similar to the opponent's salads made of potato, root vegetables, vegetables as they have the same purpose. They usually coincide in producer, relevant public, distribution channels and method of use. Furthermore, they are in competition.

The contested processed fungi are similar to the opponent’s processed root vegetables as they usually coincide in producer, relevant public and distribution channels. Furthermore, they are in competition.

The contested processed nuts are similar to the opponent’s processed root vegetables as they have the same purpose. They usually coincide in producer, relevant public and distribution channels. Furthermore, they are in competition.

The contested processed fruits are similar to a low degree to the opponent’s processed root vegetables as they usually coincide in producer, relevant public and distribution channels.

The contested processed pulses (listed twice); preserved pulses; canned pulses; dried pulses; snack foods based on legumes; legume-based spreads; and the opponent’s hamburgers consisting primarily of meat substitutes are at least similar to a low degree. The vegetarian products are often made of lentils and pulses as their main ingredient substituting the meat. The goods coincide at least in the distribution channel, relevant public and producers.

The contested birds’ eggs and egg products are at least similar to a low degree to meat substitutes as they usually coincide in relevant public and method of use. Furthermore, they are in competition.

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 to various degrees are directed at the public at large.

The degree of attention is average.

 

c) The signs

 

VEGYOU	VegaYou
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 unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C-514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The contested sign is a word mark. The protection of a word mark concerns the word as such. Nevertheless, where a word mark combines upper- and lower-case letters in a manner that departs from the usual way of writing (‘irregular capitalisation’), this must be taken into account. Pursuant to Article 3(2) EUTMIR, the representation of the trade mark defines the subject matter of the registration. The perception of the relevant public, who will not fail to notice the use of irregular capitalisation, also cannot be disregarded. Irregular capitalisation may have an impact on how the public perceives the sign. In the present case, it allows the public to perceive two components in the contested sign, namely ‘Vega’ and ‘You’, the latter being a basic English word which will be understood throughout the European Union. Consequently, and to take this into consideration in the conceptual comparison, the Opposition Division finds it appropriate to focus the comparison of the signs on the Italian, Portuguese and Estonian-speaking part of the public.

 The elements ‘VEG’ of the earlier mark or ‘VEGA’ in the contested sign are, as such, meaningless for this public and hence distinctive to a normal degree. It cannot be excluded, however, that part of the public under analysis might consider it as alluding to ‘vegan’ or ‘vegetarian’, and in that case, those parts of the marks will be distinctive to less than average degree while remaining distinctive for the rest of the public under analysis. In any event, the signs stand on an equal footing in terms of the distinctiveness of their different elements.

As a basic English word, the component ‘YOU’ will be meaningful for the public under analysis as referring to the second person pronoun. The Opposition Division takes the view that ‘YOU’ does not bear a direct reference to any of the goods in question so that it is distinctive to a normal degree for them.

Visually, the signs coincide in their first three letters ‘VEG’ and in their endings ‘YOU’. The marks differ in that the contested mark contains a letter ‘A’. 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.

 

Therefore, the signs are visually similar to at least an average degree.

 

Aurally irrespective of the different pronunciation rules in Italian, in Portuguese and in Estonian, the pronunciation of the signs coincides in the sound of the letters VEG(_)YOU and differs in the sound of the letter ‘A’ in the middle of the contested mark.

 

Therefore, the signs are aurally highly similar.  

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks.

There is a conceptual link between the signs on account of the respective elements VEG and VEGA, when these are associated with the meanings indicated above, and also on account of ‘YOU’. Therefore, the marks are conceptually similar to at least a low degree, considering the distinctiveness of their different elements.

 

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 with less than average degree of distinctiveness, as explained in the previous section. 

e) Global assessment, other arguments and conclusion

 

The goods have been found partially identical and partially similar to various degrees. The marks are visually similar to at least an average degree, aurally similar to a high degree and conceptually similar to at least a low degree. The marks differ only in one letter, namely the additional letter ‘A’ in the middle of the contested sign. The differences cannot be overcome by the similarities between the marks.

The goods at issue are directed at the public at large. The degree of attention is average. In this respect, account is taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks and the consumers may be easily confused because they will have to rely on the imperfect picture of the marks that they have kept in their mind (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Italian-, Portuguese- and Estonian-speaking part of the public, and therefore the opposition is well founded on the basis of the opponent’s European Union trade mark registration. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Therefore, the opposition is well founded on the basis of the European Union trade mark registration No 18 204 287. It follows that the contested trade mark must be rejected for all the contested goods including those found similar to at least a low degree since 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).

As the earlier right, European Union trade mark registration No 18 204 287, leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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 (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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

 

 

Martina GALLE

Erkki MÜNTER

Aldo BLASI

 

 

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.