DECISION

of the Second Board of Appeal

of 17 October 2016

In Case R 56/2016-2

easyGroup Ltd
10 Ansdell Street, Kensington London W8 5BN United Kingdom	Applicant / Appellant

represented by Kilburn & Strode LLP, 20 Red Lion Street, London WC1R 4PJ, United Kingdom

v

Mc Cain Alimentaire
Zone Industrielle 62440 Harnes France	Opponent / Respondent

represented by Cabinet Plasseraud, 31 Rue des Poissonceaux, 59044 Lille Cédex, France

APPEAL relating to Opposition Proceedings No B 2 277 542 (European Union trade mark application No 11 949 716)

The Second Board of Appeal

composed of T. de las Heras (Chairperson), H. Salmi (Rapporteur) and R. Ocquet (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 2 July 2013, easyGroup Ltd (hereinafter ‘the applicant’) sought to register the figurative as amended

for the following list of goods and services:

Class 29 - Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats; meat products; sausages; prepared meals; snack foods; fruit preserves; canned fruits; canned vegetables; canned meat; canned fish; desserts; yoghurts; nuts and nut butters; pickles plant extracts for foods; soups; potato crisps;

Class 30 - Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice; sandwiches; prepared meals; filled sandwiches; pizzas, pies and pasta dishes; chocolate; chocolate products; candy; biscuits; cookies; cakes; ice cream; syrup, treacle, molasses; ketchup; sauces and preparations for making sauces; custard powder; mousses; desserts; puddings; pepper, mustard; vinegar; chutney; spices and seasonings; mayonnaise; natural sweetener; salad dressings;

Class 31 - Fresh fruits and vegetables; foodstuffs for animals;

Class 32 - Beers; Mineral and aerated waters and other non-alcoholic beverages; Fruit beverages and fruit juices; Syrups and other preparations for making beverages;

Class 33 - Alcoholic beverages;

Class 35 - Advertising; business management; business administration; office functions; operation and supervision of loyalty and incentive schemes; advertising services provided via the Internet; production of television and radio advertisements; provision of business information; retail services connected with the sale of food and drink, preparations and substances for use in the care and appearance of the hair, scalp, lips, face, skin, teeth, nails and eyes, cosmetics, non-medicated toilet preparations, perfumes, fragrances, colognes and scents, soaps and cleaning preparations, shampoos, conditioners, moisturisers, tooth cleaning preparations', depilatory preparations, sun-screening and tanning preparations, anti-perspirants, deodorisers and deodorants, books, magazines, newspapers, stationery, calendars, diaries, games and playthings, playing cards, toys, gymnastic and sporting articles, model airplanes, scooters, teddy bears, dolls, balls, meat, fish, poultry and game, meat extracts, preserved, frozen, dried and cooked fruits and vegetables, jellies, jams, compotes, eggs, milk and milk products, edible oils and fats, meat products, sausages, prepared meals, snack foods, fruit preserves, canned fruits, canned vegetables, canned meat, canned fish, desserts, yoghurts, nuts and nut butters, pickles plant extracts for foods, soups, potato crisps, coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee, flour and preparations made from cereals, bread, pastry and confectionery, ices, honey, treacle, yeast, baking-powder, salt, mustard, vinegar, sauces (condiments), spices, ice, sandwiches, prepared meals, filled sandwiches, pizzas, pies and pasta dishes, chocolate, chocolate products, candy, biscuit, cookies, cakes, ice cream, syrup, treacle, molasses, ketchup, sauces and preparations for making sauces, custard powder, mousses, desserts, puddings, pepper, mustard, vinegar, chutney, spices and seasonings, mayonnaise, natural sweetener, salad dressings, fresh fruits and vegetables, foodstuffs for animals, beers, mineral and aerated waters and other non-alcoholic drinks, fruit drinks and fruit juices, syrups and other preparations for making beverages, alcoholic beverages, foods and drinks; marketing and publicity services; dissemination of advertising, marketing and publicity materials.

The applicant claimed the colours orange and white.

2. The application was published on 20 August 2013.

3. On 20 November 2013, Mc Cain Alimentaire (hereinafter ‘the opponent’) filed an opposition against the registration of the published trade mark application against some of the goods and services in Classes 29, 30, 31, 35.

4. The grounds of opposition were those laid down in Article 8(1)(b) EUTMR.

5. The opposition was based on the following earlier rights:

• French trade mark No 97 683 793 ‘ ’ filed on 23 June 1997, registered on 5 December 1997 and duly renewed for, as far as is relevant for these proceedings, the following goods:

Class 29 ‒ Preserved potatoes, dried and baked, fries, frozen fries, ready made food containing potato, frozen products containing potato.

• French trade mark No 97 667 496 ‘ ’ filed on 7 March 1997, registered on 14 August 1997 and duly renewed for the following goods:

Class 29 ‒ Preserved, dried and cooked potatoes, fries, frozen fries, ready made meals containing potato.

• International Registration No 678 869 ‘EASY’ designating Spain and Italy filed and registered on 28 August 1997 and duly renewed for as far as relevant to these proceedings, the following goods:

Class 29 ‒ Preserved dried and cooked potatoes, frozen fries, ready-made food containing potato.

6. By decision of 9 November 2015 (hereinafter ‘the contested decision’), the Opposition Division partially upheld the as amended as amendedas amended the contested goods and services namely ‘preserved, frozen, dried and cooked vegetables; prepared meals; snack foods; canned vegetables; soups; potato crisps’ in Class 29, ‘sandwiches; prepared meals; filled sandwiches; pizzas, pies and pasta dishes’ in Class 30, ‘fresh vegetables’ in Class 31 and ‘retail services connected with the sale of food, preserved, frozen, dried and cooked vegetables, snack foods, canned vegetables, potato crisps’ in Class 35. It gave, in particular, the following grounds for its decision:

Substantiation

• The evidence filed by the opponent with regards to the earlier International Registration No 678 869 consists of an extract from the international register (ROMARIN).

• This evidence is not sufficient to substantiate the opponent’s earlier trade mark insofar as the Spanish designation is concerned, as it does not contain all the necessary elements, namely the list of goods and services. From the evidence submitted by the opponent it can be seen that the earlier International Registration No 678 869 was registered on 28 August 1997. This was followed by a provisional refusal of protection in Spain, then a final decision confirming the refusal of protection, later a statement indicating that the mark is protected for some of the goods and services requested. However, the ROMARIN database extract submitted by the opponent does not specify for which goods and services such protection was granted (see the relevant section by code No. 897 ‘Statement indicating that protection of the mark is protected for some of the goods and services requested’). As this information does not appear in the evidence provided, the Opposition Division can neither deduce nor verify for which goods/services registration was granted in Spain.

• According to Rule 20(1) CTMIR, if until expiry of the period referred to in Rule 19(1) CTMIR the opposing party has not proven the existence, validity and scope of protection of his or her earlier mark or earlier right, as well as his or her entitlement to file the opposition, the opposition shall be rejected as unfounded.

• The opposition must therefore be rejected as unfounded, as far as it is based on the Spanish designation of International Registration No 678 869. The assessment of the opposition will continue on the remaining designation of the abovementioned international registration, namely on the Italian designation.

Proof of use

• The applicant requested that the opponent submit proof of use of all the trade marks on which the opposition is based, i.e. French trade mark registrations No 97 683 793 and 97 667 496 and International Registration No 678 869.

• The request was submitted in due time and is admissible given that the earlier trade marks were registered more than five years prior to the publication of the contested application.

• The contested application was published on 20 August 2013. The opponent was therefore required to prove that the trade marks on which the opposition is based were put to genuine use in France, with regards to the French registrations, and in Italy, with regards to the international registration, from 20 August 2008 to 19 August 2013 inclusive. Furthermore, the evidence must show use of the trade marks for the goods and services on which the opposition is based, namely the following:

• French trade mark registration No 97 683 793

Class 29 ‒ Preserved dried and cooked potatoes, fries, frozen fries, prepared meals containing potato, frozen products containing potato.

• French trade mark registration 97 667 496

Class 29 ‒ Preserved, dried and cooked potatoes, fries, frozen fries, ready made meals containing potato.

• International Registration No 678 869

Class 29 ‒ Preserved dried and cooked potatoes, frozen fries, ready-made food containing potato.

• On 4 July 2014, in accordance with Rule 22(2) CTMIR, the Office gave the opponent until 4 September 2014 to submit evidence of use of the earlier trade marks, which was later extended until 4 November 2014. On 21 August 2014, 26 August 2014 and 27 October 2014, within the time-limit, the opponent submitted evidence of use.

• On 26 August 2015, after expiry of the time-limit, the opponent submitted additional evidence.

• The Opposition Division assessed the additional set of proof of use and found that it does not contain evidence that could change the result of the decision based on the proof of use submitted within the time limit. The Opposition Division will not proceed with the examination of the belated evidence. The interests of both parties will not be prejudiced.

• The evidence to be taken into account is the following:

• Lists of tariffs, written in Spanish, dated between 2008-2012, demonstrating the mark next to items ‘3/6 (9/9)’ (code 791600E) and ’Julienne (6/6)’ (code 761600E), which according to the attached screenshot from the opponent’s website, refer to French fries.

• Several invoices issued by McCain España S.A. and addressed to various companies in Spain, dated between 2008-2013, partially illegible, containing items, such as ‘EASY 3/8’ (code 791600E) and ‘EASY 6/6’ (code 761600E), according to the opponent referring to potato goods.

• Lists of tariffs, a letter and two website screenshots, written in Italian, dated between 2008-2011, demonstrating, inter alia, the mark in relation to potato products, such as ‘patate novelle’, ‘patate a fette’, ‘baking potato’.

• Five invoices issued by McCain Sud S.A. and addressed to companies in Italy, dated between 2008-2013, containing the following items: ‘potatoes skin off’, ‘potato parisienne’, ‘potato slices’, ‘baking potato’.

• A brochure written in French, dated 2009, demonstrating the marks and in relation to frozen potato goods.

• Lists of tariffs, written in French, dated between 2010-2013, demonstrating the mark in relation to the items such as ‘pommes noisette’, ‘potatoes roty’, ‘frites easy 9/9’ or ‘frites easy 6/6’.

• A great number of invoices issued by McCain Alimentaire S.A.S. and addressed to various companies in France, dated between 2008-2013, containing items, such as ‘EASY 9/9’ (code 791600), ‘P NOISETTE EASY’, ‘POTATO ROTY EASY’ or ‘POMME SAUTEE EASY’.

• Promotional leaflet, written in French, partially illegible, mentioning potato products.

• Promotional leaflet written in French, dated March 2013, demonstrating the mark in relation to potato goods.

• The applicant argues that not all the items of evidence indicate genuine use in terms of time, place, extent, nature and use of the goods for which the earlier marks are registered.

• The applicant’s argument is based on an individual assessment of each item of evidence regarding all the relevant factors. However, when assessing genuine use, the Opposition Division must consider the evidence in its entirety. Even if some relevant factors are lacking in some items of evidence, the combination of all the relevant factors in all the items of evidence may still indicate genuine use.

• The evidence filed, namely the invoices, lists of tariffs, brochure and leaflets show that the place of use is France and Italy. This can be inferred from the language of the documents (French and Italian), the currency mentioned (euro) and some addresses in France and Italy. Therefore, the evidence relates to the relevant territory.

• Most of the evidence is dated within the relevant period.

• As regards the extent of use, all the relevant facts and circumstances must be taken into account, including the nature of the relevant goods or services and the characteristics of the market concerned, the territorial extent of use, its commercial volume, duration and frequency.

• The assessment of genuine use entails a degree of interdependence between the factors taken into account. Thus, the fact that the commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use.

• The documents filed, in particular the invoices and lists of tariffs, provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use. The evidence clearly demonstrates that the goods in question were offered under the trade mark continuously during the entire relevant period. The amounts in the invoices regarding the goods in question reach thousands of euros and show sufficient commercial volume for it to be concluded that the use of the mark is genuine in France and Italy. Moreover, it must be noted that as a general rule use of the mark need not be quantitatively significant for it to be deemed genuine.

• Therefore, the Opposition Division considers that the opponent has provided sufficient indications concerning the extent of the use of the earlier marks.

• In the present case, it is considered that the opponent filed sufficient proof of use of the sign as registered, since the marks appear in the documents as registered, namely as ‘EASY’ (word) and (figurative). As far as the sign is concerned, the addition of the word ‘Nature’ is not a significant alteration of the distinctive character of the earlier marks as registered. The word ‘Nature’ is a very basic English word that is frequently used in many business sectors and is considered to be a weak element that merely refers to the characteristics of the goods, namely that they are based on or contain natural ingredients.

• This is because use of a registered word mark together with a generic indication of the product or descriptive term will be considered as use of the registered mark. Additions which are just indications of characteristics of the goods and services, such as their kind or quality of the goods, do not in general constitute use of a variant but use of the mark itself.

• In view of the above, the Opposition Division considers that the use of the abovementioned signs in evidence provided is sufficient to show use of the sign as registered within the meaning of Article 15(1), second subparagraph, point (a) EUTMR.

• The Court of Justice has held that there is ‘genuine use’ of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly.

• However, the evidence filed by the opponent does not show genuine use of the trade marks for all the goods covered by the earlier trade marks.

• According to Article 42(2) EUTMR, if the earlier trade mark has been used in relation to part only of the goods or services for which it is registered it shall, for the purposes of the examination of the opposition, be deemed to be registered in respect only of that part of the goods or services.

• In the present case the evidence shows genuine use of the trade mark for the following goods:

• French trade mark registration No 97 683 793

Class 29 ‒ Preserved dried and cooked potatoes, fries, frozen fries.

• French trade mark registration 97 667 496

Class 29 ‒ Preserved, dried and cooked potatoes, fries, frozen fries.

• International trade mark registration No 678 869

Class 29 ‒ Preserved dried and cooked potatoes, frozen fries.

• Therefore, the Opposition Division will only consider the abovementioned goods in its further examination of the opposition.

Likelihood of confusion

Comparison of the goods and services

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

  French TMR No 97 683 793	Class 29 ‒ Preserved, frozen, dried and cooked vegetables; prepared meals; snack foods; canned vegetables; soups; potato crisps; Class 31 ‒ Fresh vegetables; Class 35 ‒ Retail services connected with the sale of food, preserved, frozen, dried and cooked vegetables, prepared meals, snack foods, canned vegetables, soups, potato crisps, rice, flour and preparations made from cereals, sandwiches, prepared meals, filled sandwiches, pizzas, pies and pasta dishes, fresh vegetables.
  Class 29 ‒ Preserved dried and cooked potatoes, fries, frozen fries.
  French TMR 97 667 496
  Class 29 ‒ Preserved, dried and cooked potatoes, fries, frozen fries.
  International Registration No 678 869
  Class 29 ‒ Preserved dried and cooked potatoes, frozen fries.
  Earlier rights	Contested sign

• Contested goods in Class 29: The contested ‘preserved, frozen, dried and cooked vegetables’ include, as a broader category, the opponent’s ‘preserved, dried and cooked potatoes’. It is impossible for the Opposition Division to filter these goods from the abovementioned category. Since the Opposition Division cannot dissect ex officio the broad category of the applicant’s goods, they are considered identical to the opponent’s goods. The contested ‘snack foods’ overlap with the opponent’s ‘preserved, dried and cooked potatoes’ in products such as potato crisps, which are made of preserved potatoes and served as snack food. Therefore, they are considered identical. The contested ‘canned vegetables’ overlap with the opponent’s ‘preserved, dried and cooked potatoes in canned preserved, dried or cooked potatoes’. Therefore, they are considered identical. The contested ‘potato crisps’ are included in the broad category of the opponent’s ‘preserved, dried and cooked potatoes’. Therefore, they are considered identical. The contested ‘prepared meals; soups’ are similar to the opponent’s ‘preserved, dried and cooked potatoes’. They may coincide in their manufacturers, end users and distribution channels. They have the same nature and purpose. The contested goods often contain preserved potatoes.

• Contested goods in Class 30: The contested ‘sandwiches; prepared meals; filled sandwiches; pizzas, pies and pasta dishes’ are similar to the opponent’s ‘preserved, dried and cooked potatoes, fries, frozen fries’. They often coincide in their manufacturers, end users and distribution channels. They have the same nature and purpose. They may be complementary or in competition with each other. The contested ‘rice; flour and preparations made from cereals’ are dissimilar to all the opponent’s goods. Even though the conflicting goods are all consumed by humans, this is not enough to find similarity between them, since they do not usually have the same producers. Moreover, with regards to ‘flour and preparations made from cereals’, they have a different purpose, nature and method of use than the opponent’s goods.

• Contested goods in Class 31: The contested ‘fresh vegetables’ are similar to a low degree to the opponent’s ‘preserved, dried and cooked potatoes’, as they may coincide in their distribution channels and end users. Moreover, they are in competition with each other.

• Contested services in Class 35: ‘Retail services concerning the sale of particular goods’ are similar to a low degree to these particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public. Therefore, the contested ‘retail services connected with the sale of food, preserved, frozen, dried and cooked vegetables, snack foods, canned vegetables, potato crisps’ are similar to a low degree to the opponent’s ‘preserved, dried and cooked potatoes, fries, frozen fries’. The contested ‘retail services connected with the sale of prepared meals, soups, rice, flour and preparations made from cereals, sandwiches, prepared meals, filled sandwiches, pizzas, pies and pasta dishes, fresh vegetables’ are not similar to all the opponent’s goods. Apart from being different in nature, given that services are intangible whereas goods are tangible, they serve different needs. ‘Retail services’ consist in bringing together, and offering for sale, a wide variety of different products, thus allowing consumers to conveniently satisfy different shopping needs at one stop. This is not the purpose of the goods. Furthermore, the method of use of those goods and services is different. They are neither in competition nor complementary. Similarity between retail services of specific goods covered by one mark and specific goods covered by the other mark can only be found where the retailed goods and the specific goods covered by the other mark are identical. This condition is not fulfilled in the present case since the goods at issue are not identical.

Comparison of the signs

(1) French trade mark registrations No 97 683 793 and 97 667 496:
(2) International Registration No 678 869:
EASY
Earlier trade marks	Contested sign

• The relevant territory is France and Italy.

• The earlier mark (1) is a figurative mark composed of the verbal element ‘Easy’ depicted in black stylised italicised typeface with an elongated letter ‘y’. The earlier mark (2) is a word mark composed of the verbal element ‘EASY’. According to the practice of the Office, in the case of word marks, the use of upper or lower case letters is not relevant, since it is the word as such which is protected. The contested sign is a figurative mark composed of the verbal element ‘easyFoodstore’ represented in white stylised typeface and placed on a rectangular orange background.

• Visually, the signs are similar to the extent that they coincide in the element ‘Easy’, placed at the beginning of the contested sign and, at the same time, constituting the entire earlier mark (2) and the only verbal element of the earlier mark (1). The marks differ in the element ‘Foodstore’ of the contested sign, as well as in its figurative element and stylisation. With regards to the earlier mark (1) the conflicting signs differ also in the stylisation of the earlier mark.

• Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory the pronunciation of the signs coincides in the sound of the letters ‛Easy’ present identically in both signs, and to that extent the signs are aurally similar. The pronunciation differs in the sound of the letters ‛Foodstore’ of the contested mark, which have no counterparts in the earlier marks.

• Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

• Taking into account the abovementioned visual and aural coincidences, the signs under comparison are similar.

Distinctive and dominant elements of the signs

• The marks under comparison have no elements which could be considered clearly more distinctive than other elements.

• The marks under comparison have no elements which could be considered clearly more dominant (visually eye‑catching) than other elements.

Distinctiveness of the earlier marks

• The opponent did not explicitly claim that its marks are particularly distinctive by virtue of intensive use or reputation.

• Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. In the present case, the earlier trade marks 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 marks must be seen as normal.

Relevant public – degree of attention

• The goods and services found to be identical and similar (to various degrees) are directed at the public at large. The degree of attention will be average.

Global assessment, other arguments and conclusion

• The contested goods and services were found to be partly identical, partly similar (to various degrees) and partly dissimilar to the opponent’s goods. The conflicting signs are similar to the extent that they coincide in the element ‘Easy’, placed at the beginning of the contested sign and, at the same time, constituting the entire earlier mark (2) and the only verbal element of the earlier mark (1).

• On the other hand the marks differ in the element ‘Foodstore’ of the contested sign, as well as in its figurative element and stylisation. With regards to the earlier mark (1) the conflicting signs differ also in the stylisation of the earlier mark.

• However, these differences are not sufficient to outweigh the significant similarities found between the signs.

• The first parts of the conflicting marks are identical. Consumers generally tend to focus on the first element of a sign when being confronted with a trade mark. This is justified by the fact that 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. Consequently, the identical first elements of the marks at issue have to be taken into account when assessing the likelihood of confusion between the marks.

• With regards to the additional figurative element of the contested sign and the stylisation of the earlier mark (1) and of the contested sign, it must be reminded that when signs consist of both word and figurative components, the principle has been established that the word element of the sign usually has a stronger impact on the consumer than the figurative one. This is because the public tends not to analyse signs and will most readily refer to a sign by its verbal component. Therefore, the figurative element and stylisation of the signs are of less importance, since consumers will focus their attention on the verbal elements of the marks.

• Account should also be taken of the fact that average consumers only rarely have the chance to make a direct comparison between the different marks, but must place their trust in the imperfect picture or recollection of them that they have kept in their minds. Moreover, in general, the established similarities between trade marks, rather than their differences, are retained in the average consumer's recollection.

• In the present case, the relevant consumer may see the conflicting signs as being brand variations intended for different lines of products or services, originating from the same undertaking or, as the case may be, economically-linked undertakings. In other words, the relevant consumers may confuse the origin of the conflicting goods and services.

• The applicant argues that its EUTM applied for has reputation and filed various pieces of evidence to substantiate this claim.

• The right to a EUTM begins on the date when the EUTM application is filed and not before, and from that date on the EUTM application has to be examined with regard to opposition proceedings.

• Therefore, when considering whether or not the EUTM applied for falls under any of the relative grounds for refusal, events or facts which happened before the filing date of the EUTM application are irrelevant because the rights of the opponent, insofar as they predate the EUTM applied for, are earlier than the applicant’s EUTM application.

• Considering all the above, particularly taking into account the fact that the differences between the signs are confined to secondary elements and the fact that the entire earlier mark (2) and the sole verbal element of the earlier mark (1) are contained in the contested sign, the Opposition Division finds that there is a likelihood of confusion, which includes a risk of association, on the part of the public and therefore the opposition is partially well founded on the basis of the opponent’s French and international registrations.

• It follows from the above that the contested mark must be rejected for the goods and services found to be identical or similar (to various degrees) to those of the earlier trade marks.

• The rest of the contested goods and services are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this article and directed at these goods and services cannot be successful.

7. On 11 January 2016, the applicant filed an appeal against the contested decision, requesting that the decision be as amended set aside as amended accepted for some of the goods and services. The statement of grounds of the appeal was received on 9 March 2016.

8. No observations in reply were filed.

Submissions and arguments of the applicant

9. The arguments raised in the statement of grounds may be summarised as follows:

Comparison of the signs

• The Office placed over-reliance on the word element ‘easy’ in the opposed mark when assessing the overall similarity.

• The shared element ‘easy’, being a common English word, might also not be sufficient to render the marks similar bearing in mind the word ‘Foodstore’ in the applicant’s mark, its stylisation and the fact that it looks like a logo.

Comparison of the goods and services

Goods in Class 29

• The Office has erred in its assessment of the alleged similarity of ‘potato crisps’ with the opponent’s ‘preserved, dried and cooked potatoes’ since they belong to a separate category of goods. Fresh potatoes are sold in the fruit and vegetable aisle of supermarkets. Canned potatoes are sold in the canned vegetable part of supermarkets and stores. Preserved potatoes are sold in the frozen section of supermarkets and stores. By contrast, potato crisps are sold in the snack section of supermarkets and stores. The one is not a substitute for the other. Consumers would no more buy or consume potato crisps as an alternative to chips or potatoes than they would, for example, confectionery. Just because potato crisps are made from the same base ingredients as the opponent’s goods does not mean that they are similar from a practical point of view in the eyes of the consumer. The Office has found similarity based purely on base ingredients rather than the realities of the market place and nothing submitted by the opponent would suggest that such goods are similar.

• Similarly, the Office has erred with regard to ‘prepared meals’ and ‘soups’ in its analysis of the similarity of the goods. It is true that prepared meals and soups may contain potatoes. However, that again is to confuse basic ingredients with the end product and the practicalities of the market place. Prepared meals and soups are meals in their entirety. None of the opponent’s goods is a meal in its entirety. Instead, they are constituents of a meal alongside other elements such as meat, fish, etc. Whilst prepared meals can be sold in the frozen section of supermarkets and stores that in itself is not sufficient to conclude that they are similar. By analogy, peas are also sold in the frozen section of supermarkets and stores but no-one would suggest that they are similar to chips. Furthermore, the opponent has not shown how or why it would be assumed by consumers that the manufacturer of chips and preserved potatoes would make prepared meals and soups.

Goods in Class 30

• The Office has erred in its assessment of the similarity of the refused goods in Class 30. It is true that they can both be found in supermarkets and stores so in that sense share the same distribution channels. However, supermarkets and stores sell a wide range of goods and it is clear that, for example, toothpaste is not similar to the opponent’s preserved potatoes despite sharing a distribution channel. Nor can it be said that shared end users is sufficient, since again it is clear that consumers of toothpaste might also be consumers of the opponent’s goods but no-one would assume that the two are produced by the same undertakings. That leaves, as the Office’s sole basis for finding that the goods are similar, the fact that they might share manufacturers. Here, the opponent has not shown how or why manufacturers of sandwiches, pies and pasta dishes, etc. also produce preserved potatoes or chips. They are sold in different areas of supermarkets and stores and the one is not a substitute for the other. The basis for a finding of similarity has to be that consumers would assume that the one is produced by the other, perhaps because of reputation in the opponent’s mark or strong similarity between the marks. However, in the present case, the marks are not identical, share only low-levels of similarity in some elements and differ quite strongly in others, and the goods in Class 30 cannot be said to be similar. That is indeed the case with regard to rice, flour and preparations made from cereals in Class 30, which the Office has correctly found are not similar to the opponent’s goods.

Services in Class 35

• The Office has erred in its assessment of the similarity of retail services connected with potato crisps and the opponent’s goods, for the reasons discussed above with regard to the Class 29 goods.

• Its assessment of the similarity between retail services in relation to food preserved, frozen, dried and cooked vegetables, snack foods, canned vegetables, potato crisps is wrong because the case-law is clear that similarity is only there to a low extent, and it is submitted that there is no likelihood of confusion having regard to the fact that the marks are not very close. If the marks were identical then it is accepted there would be a low level similarity between the retail of identical goods with the opponent’s goods. However, in this case, there is no likelihood of confusion having regard to the fact that the marks are different.

Conclusion

• The Office dismisses the arguments and evidence put forward by the applicant as being irrelevant because they do not pre-date the opponent’s registrations. However they do demonstrate the fact that ‘easyFoodstore’ would be seen as denoting the goods and services of the easyGroup, in view of the fact that it shares the same font, stylisation, branding, colours and other get up as other easyGroup marks such as ‘easyJet’ and ‘easyHotel’. Therefore, it makes confusion far less likely and, in particular, undermines the Office’s contention that consumers would assume that ‘easyFoodstore’ is an extension of opponent’s brand.

Reasons

Preliminary remark

10. It is to be noted that the opposition was filed before the entering into force on 23 March 2016 of the new European Trade Mark Regulation which was introduced by Amending Regulation (EU) 2015/2424 for which the former Community Trade Mark Regulation (EC) No 207/2009 (throughout the decision referred to as ‘EUTMR’) is applicable to this appeal.

11. Furthermore, the Board will keep on referring to the current Community Trade Mark Implementation Regulation (EC) No 2868/95 (throughout the decision referred to as ‘CTMIR’) bearing in mind, though, that some Rules have been deleted by the said Amending Regulation.

Admissibility of the appeal

12. The appeal complies with Articles 58, 59 and 60(1) EUTMR and Rules 48 and 49 CTMIR. It is, therefore, admissible.

Scope of appeal

13. The opponent did not file an appeal or a response seeking a decision annulling or altering the contested decision on a point not raised in the appeal in the sense of Article 8(3) BoA-RP.

14. Therefore, the scope of the appeal is limited to the extent that it was appealed by the applicant, namely for the following goods and services:

Class 29 ‒ Preserved, frozen, dried and cooked vegetables; prepared meals; snack foods; canned vegetables; soups; potato crisps;

Class 30 ‒ Sandwiches; prepared meals; filled sandwiches; pizzas, pies and pasta dishes;

Class 31 ‒ Fresh vegetables;

Class 35 ‒ Retail services connected with the sale of food, preserved, frozen, dried and cooked vegetables, snack foods, canned vegetables, potato crisps.

15. The contested decision has become final with respect to the acceptance of the contested sign in relation to the remaining goods and services.

Proof of use

16. The applicant has not given arguments as to whether the contested decision erred in its conclusion that the opponent had proven genuine use of the trade mark for the following goods:

• French trade mark registration No 97 683 793

Class 29 ‒ Preserved dried and cooked potatoes, fries, frozen fries.

• French trade mark registration 97 667 496

Class 29 ‒ Preserved, dried and cooked potatoes, fries, frozen fries.

• International Registration No 678 869

Class 29 ‒ Preserved dried and cooked potatoes, frozen fries.

17. Therefore, it is sufficient to note that the Board agrees with the evaluation done in the contested decision and the conclusion that genuine use had been proven for the abovementioned goods for the reasons given in the contested decision, to which it hereby refers, in order to avoid repetition, bearing in mind that it may adopt the grounds of a decision taken by the Opposition Division, which thus make up an integral part of the reasons for the Board’s own decision (13/09/2010, T‑292/08, Often, EU:T:2010:399, § 48, and the case-law cited therein).

Likelihood of confusion

18. Article 8 EUTMR provides:

‘1. Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:

…

(b) if because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods and services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.

…’

19. A likelihood of confusion lies in the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 29 and 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 17).

20. A likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 16 and 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18).

Relevant public / territory

21. The perception of the marks in the mind of the average consumer of the category of goods or services in question plays a decisive role in the global assessment of the likelihood of confusion.

22. As the opposition is based on an earlier French trade mark and an international registration covering Italy, the relevant territory for the likelihood of confusion assessment is France and Italy.

23. As to the relevant public, where the goods and services at issue are intended for all consumers, as is the case here, the relevant public must be deemed to be composed of the average consumer (26/04/2007, C-412/05 P, Travatan, EU:C:2007:252, § 62 and the case-law cited therein).

24. The average consumer, who is reasonably well informed and reasonably observant and circumspect, normally perceives a mark as a whole and does not proceed to analyse its various details (28/06/2005, T‑301/03, Canal Jean, EU:T:2005:254, § 50).

25. Account should also be taken of the fact that the average consumer has only rarely the chance to make a direct comparison between the different marks but must place his/her trust in the imperfect picture of them that he/she has kept in his/her mind (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

Comparison of the goods and services

26. In assessing the similarity of the goods or services concerned, all the relevant features of the relationship between them should be taken into account, including, inter alia, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account, such as the distribution channels of the goods concerned, or the fact that the goods are often sold in the same specialist sales outlets, which is likely to facilitate the perception by the relevant consumer of the close connections between them and strengthen the perception that the same undertaking is responsible for the production of those goods (18/06/2013, T‑522/11, Apli-Agipa, EU:T:2013:325, § 32 and the case-law cited) or that the goods are usually produced by the same manufacturer.

27. The applicant claims that the Office has erred in its assessment of the alleged similarity of ‘potato crisps’ with the opponent’s ‘preserved, dried and cooked potatoes’ since they belong to a separate category of goods. Fresh potatoes are sold in the fruit and vegetable aisle of supermarkets. Canned potatoes are sold in the canned vegetable part of supermarkets and stores. Preserved potatoes are sold in the frozen section of supermarkets and stores. By contrast, potato crisps are sold in the snack section of supermarkets and stores.

28. However, it is consistent case-law that the goods in question can be considered as identical when the goods designated by the trade mark application are included in a more general category designated by the earlier mark (23/10/2002, T-104/01, Fifties, EU:T:2002:262, § 32-33; 12/12/2002, T-110/01, Hubert, EU:T:2002:318, § 43-44 and 18/02/2004, T‑10/03, Conforflex, EU:T:2004:46, § 41-42).

29. The Board agrees with the contested decision that the contested ‘potato crisps’ are included in the broad category of the opponent’s ‘preserved, dried and cooked potatoes’. The fact that the product of the applicant ‘potato crisps’ may be sold in a different section from other types of preserved, dried and cooked potatoes does not change the fact that it is included and still falls under these rather broad terms. These goods are identical.

30. The contested decision also found that the contested ‘prepared meals; soups’ are similar to the opponent’s ‘preserved, dried and cooked potatoes’ as they may coincide in their manufacturers, end users and distribution channels, they have the same nature and purpose and the contested goods often contain preserved potatoes. On this point the applicant claims that while it is true that prepared meals and soups may contain potatoes, but this confuses basic ingredients with the end product and the practicalities of the market place. Prepared meals and soups are meals in their entirety. None of the opponent’s goods is a meal in its entirety. Instead, they are constituents of a meal alongside other elements such as meat, fish, etc. Whilst prepared meals can be sold in the frozen section of supermarkets and stores that in itself is not sufficient to conclude that they are similar. Furthermore, the opponent has not shown how or why it would be assumed by consumers that the manufacturer of chips and preserved potatoes would make prepared meals and soups.

31. On this point the Board agrees with the applicant that the simple fact that ‘prepared meals’ may contain potatoes is not sufficient to make them similar. However, the Board notes that, as also noted earlier, for example ‘potato crisps’ are included in the broad category of the opponent’s ‘preserved, dried and cooked potatoes’. ‘Potato crisps’ are mainly intended to be used as light meals or snacks. The same applies to the contested ‘prepared meals; soups’. These goods may coincide in their manufacturers, end users and distribution channels, they have the same purpose and they may be somewhat in competition with other. Therefore, there is at least a certain level of similarity between them. The same applies to the comparison between the contested ‘sandwiches; prepared meals; filled sandwiches; pizzas, pies and pasta dishes’ and the opponent’s ‘preserved, dried and cooked potatoes’ as the ‘potato crisps’ included under them are mainly intended to be used as light meals or snacks, as are the mentioned contested goods.

32. As to the contested services in Class 35, the Board notes first of all that, as also noted earlier, ‘potato crisps’ are included in the broad category of ‘preserved, dried and cooked potatoes’. Further, the goods ‘preserved, dried and cooked potatoes, fries, frozen fries’ fall under the more general categories of ‘food, preserved, frozen, dried and cooked vegetables, snack foods, canned vegetables’.

33. According to settled case-law, there is a similarity between goods and retail services which relate to those goods (13/11/2014, T-549/10, Natur, EU:T:2014:949 § 33 and the case-law cited therein).

34. In the present case, it must be stated that the following contested retail services in Class 35, namely ‘retail services connected with the sale of food, preserved, frozen, dried and cooked vegetables, snack foods, canned vegetables, potato crisps’ relate to the goods ‘preserved, dried and cooked potatoes, fries, frozen fries’ in Class 29 covered by the earlier mark. Although the nature, purpose and method of use of these goods and services are not the same, they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public. Consequently, there is a similarity between the contested retail services in Class 35 and the goods covered by the earlier mark (13/11/2014, T-549/10, Natur, EU:T:2014:949 § 34).

35. Furthermore, it must be stated that, in the present case, the services mentioned above covered by the contested mark constitute one of the possible distribution channels for the goods covered by the earlier mark. That fact thus accentuates their similarity (13/11/2014, T‑549/10, Natur, EU:T:2014:949 § 35 and the case-law cited therein).

36. In light of the above, the Opposition Division erred in finding that there was only a low degree of similarity between the services in Class 35 and the goods in Class 29 (13/11/2014, T-549/10, Natur, EU:T:2014:949 § 36). The goods and services have a normal level of similarity.

37. For the rest of the earlier goods found to have a level of similarity with the contested goods, the Board agrees with the comparison of the goods carried out in the contested decision, which has not been specifically disputed by the parties. Therefore it is sufficient to note that the Board agrees with the outcome that the contested goods ‘preserved, frozen, dried and cooked vegetables; snack foods; canned vegetables’ in Class 29 are identical and ‘fresh vegetables’ in Class 31 are lowly similar to the goods covered by the earlier trade marks for the reasons given in the contested decision, to which it hereby refers, in order to avoid repetition, bearing in mind that it may adopt the grounds of a decision taken by the Opposition Division, which thus make up an integral part of the reasons for the Board’s own decision (13/09/2010, T‑292/08, Often, EU:T:2010:399, § 48, and the case-law cited therein).

Comparison of the signs

38. The likelihood of confusion must be determined by means of a global appraisal of the visual, aural and conceptual similarities between the marks, on the basis of 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).

39. With regard to the assessment of the dominant character of one or more given components of a complex trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the complex mark (23/10/2002, T‑6/01, Matratzen, EU:T:2002:261, § 35).

40. In light of the foregoing, before examining whether there is any visual, phonetic and conceptual similarities between the marks at issue, the Board will make an assessment on the distinctive and dominant elements of the marks at issue (12.11.2015, T‑449/13, WISENT / ŻUBRÓWKA BISON BRAND VODKA, EU:T:2015:839, § 60-61).

41. The signs to be compared are as follows:

    (1) French trade mark registrations No 97 683 793 and 97 667 496
    (2) International Registration No 678 869:
    EASY
    Earlier trade marks	Contested sign

42. Firstly, as regards the contested sign, it must be pointed out that this composite mark consists of two word elements, ‘easy’ and ‘Foodstore’, in letters which are mainly lower case and are bold, white and in the relatively common font Cooper Black, and of a figurative element consisting of a broad, bright orange rectangle, on the background of which these word elements are written. The capital letter ‘F’ separates the word ‘easy’ from the word ‘Foodstore’.

43. Secondly, as regards the respective positions of those word elements, the position of the element ‘easy’ at the beginning of the contested sign would be such as to make it slightly dominant, in accordance with the case-law that the relevant public normally attaches more importance to the first part of words, were it not for the greater length and the capital letter of the element ‘Foodstore’, which offset the position of the element ‘easy’ at the beginning of the sign (by analogy, 13/05/2015, T‑608/13, easyAir-tours (fig.) / international airtours (fig.) et al., EU:T:2015:282, § 39 and the case-law therein cited).

44. Thirdly, the alleged reputation or renown of the element ‘easy’ in the contested sign is irrelevant, because it is apparent from the case-law that only the reputation of the earlier mark, and not that of the mark applied for, is to be taken into account in assessing whether there is a likelihood of confusion. That case-law is consistent with the objective of Article 8(1)(b) EUTMR, which is to provide proprietors of earlier rights with appropriate protection against subsequent applications for identical or similar European Union trade marks (13/05/2015, T‑608/13, easyAir-tours (fig.) / international airtours (fig.) et al., EU:T:2015:282, § 40 and the case-law therein cited).

45. Fourthly, the figurative element consisting of a broad orange rectangle appears striking, both owing to its size, which is very large in relation to that of the word elements, and its bright colour, with the result that it will be clearly perceived and memorised by the relevant public, and will not be dominated by the word elements. According to the case-law, in a composite mark, the figurative element may occupy a position equivalent to the word element (by analogy, 13/05/2015, T‑608/13, easyAir-tours (fig.) / international airtours (fig.) et al., EU:T:2015:282, § 41 and the case-law therein cited).

46. It must therefore be held that, in the contested sign, there are three elements of major importance, none of which dominates the other — the figurative element of a broad, bright orange rectangle and also the word elements ‘easy’ and ‘Foodstore’, both of which appear in white letters against that orange background. Since no word or figurative element of the contested sign may be regarded as dominant or negligible, it is thus the overall impression created by that mark which must be taken into account in the comparison with the earlier mark (see by analogy, 13/05/2015, T‑608/13, easyAir-tours (fig.) / international airtours (fig.) et al., EU:T:2015:282, § 42-44).

47. Finally, as regards the earlier marks and as correctly found in the contested decision, the earlier mark (1) is a figurative mark composed of the verbal element ‘Easy’ depicted in black stylised italicised typeface with an elongated letter ‘y’. The earlier mark (2) is a word mark composed of the verbal element ‘EASY’.

48. In accordance with the case-law of the Court of Justice according to which it is necessary to acknowledge that an earlier national mark on which an opposition against the registration of a European Union trade mark is based has a certain degree of distinctiveness, it must be held that the earlier marks, even if their meaning were understood in the relevant territories of France and Italy and they might be seen as having a somewhat allusive nature in respect of the goods concerned, have a certain degree of distinctive character (by analogy, 13/05/2015, T‑608/13, easyAir-tours (fig.) / international airtours (fig.) et al., EU:T:2015:282, § 47).

49. Visually, the contested sign reproduces the earlier mark (2) in its entirety, bearing in mind that it is irrelevant that the earlier mark, being a word mark, is written in lower or upper-case letters (31/01/2013, T-66/11, Babilu, EU:T:2013:48, § 57). The contested sign also reproduces the only verbal element of earlier mark (1).

50. Two marks are similar where, from the point of view of the relevant public, they are at least in part identical as regards one or more relevant aspects (20/01/2010, T-460/07, Life Blog, EU:T:2010:18, § 51 and the case-law cited therein).

51. The Board also refers to the case-law of the Court that states that if the trade mark is fully contained in the mark applied for, this is an indication that the two signs are similar (13/06/2012, T-519/10, SG Seikoh Giken, EU:T:2012:291, § 27; 24/01/2012, T-260/08, Visual Map, EU:T:2012:23, § 32 and 22.05.2012, T-179/11, Seven Summits, EU:T:2012:254, § 26).

52. Furthermore, it follows from the cited case-law herewith that the marks containing or reproducing an element of the other must be considered, at least to that extent, similar (03/07/2003, T-129/01, Budmen, EU:T:2003:184, § 47 to 50; 04/11/2003, T-85/02, Castillo, EU:T:2003:288, § 40; 18/02/2004, T-10/03, Conforflex, EU:T:2004:46, § 59 et seq.; 30/06/2004, T-186/02, Dieselit, EU:T:2004:197, § 46 et seq.; 06/10/2004, T-356/02, Vitakraft, EU:T:2004:292, § 54 to 57; 04/05/2005, T 359/02, Star TV, EU:T:2005:156; 11/05/2005, T-31/03, Grupo Sada, EU:T:2005:169, § 49 et seq.; 25/05/2005, T-352/02, PC Works, EU:T:2005:176, § 34 et seq.; 25/05/2005, T-288/03, Teletech Global Ventures, EU:T:2005:177, § 86 et seq.; 22/03/2007, T-322/05, Terranus, EU:T:2007:94, § 35 et seq.; 08/09/2010, T-152/08, Scorpionexo, EU:T:2010:357, § 66 et seq.; 08/09/2010, T-369/09, Porto Alegre, EU:T:2010:362, § 26 et seq.; 20/09/2011, T-1/09, Meta, EU:T:2011:495; 28/09/2011, T-356/10, Victory Red, EU:T:2011:543, § 26 et seq.; 23/05/2007, T-342/05, Cor, EU:T:2007:152; 10/11/2011, T-313/10, Ayuuri Natural, EU:T:2011:653; and 15/11/2011, T‑434/10, Alpine Pro Sportswear & Equipment, EU:T:2011:663, § 55 et seq.). The Board cannot simply ignore such an extensive precedent in case-law. This applies to the case at hand since the earlier mark (2) is reproduced in the contested sign in full and the only word element of the earlier mark (1) is reproduced in the contested mark.

53. The marks cannot be found dissimilar on account of the additional element ‘Foodstore’ and the decorative elements in the contested sign, as discussed above. From the abovementioned it follows that the marks are visually similar overall.

54. On an aural level, it is noted that the earlier marks ‘EASY’ are equally pronounced in the contested sign. They differ in the pronunciation of the word ‘Foodstore’ in the contested sign, which has no counterpart in the earlier marks. The fact that the mark applied for contains the additional word ‘Foodstore’ and that it is therefore longer to pronounce does not lead to the conclusion that there is no phonetic similarity at all between the marks at issue (23/10/2015, T-96/14, VIMEO, EU:C:1999:323, § 39 and 07/10/2015, T-227/14, EU:T:2015:760, FRECCE TRICOLORI, § 46). Therefore, the signs are similar from a phonetic point of view to the extent that the earlier trade marks are entirely contained in the contested sign and the words ‘EASY/EASY’ are pronounced identically.

55. Conceptually, neither of the signs has a meaning for the public in the relevant territories. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

56. Taking into account the abovementioned visual and aural coincidences, the signs under comparison are similar.

Distinctive character of the earlier marks

57. The Board agrees with the Opposition Division’s reasoning leading to a finding that, for the purpose of the present proceedings, the earlier marks has a normal distinctive character for the goods at issue.

Overall assessment

58. The overall assessment entails certain interdependence between the factors taken into account and, in particular, the similarity between the trade marks and between the goods or services covered. Accordingly, a lesser degree of similarity between those goods 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 and 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 19).

59. The signs are similar overall and the goods and services covered by the scope of the appeal are either identical or similar to the goods covered by the earlier marks in varying degrees.

60. In light of all the foregoing, taking also into account the principles of interdependence and the imperfect recollection of the public at issue, there is reason to assume that the relevant public in France and Italy may be misled into thinking that the identical or similar goods and services bearing the similar conflicting signs come from the same undertaking or, as the case may be, from undertakings that are economically linked. In particular, as also pointed out by the Opposition Division, the relevant public may legitimately believe that the contested mark, ‘easyFoodstore’, is a new version or a brand variation of the earlier mark, ‘EASY’, originating from the same undertaking or from economically-linked undertakings.

61. Accordingly, the appeal is dismissed.

Costs

62. Pursuant to Article 85(1) EUTMR, the applicant, as the losing party, must bear the costs of the appeal proceedings. Pursuant to Article 85(6) EUTMR and Rule 94(3) last sentence CTMIR, the applicant is therefore ordered to reimburse the costs of professional representation for the appeal proceedings at the level laid down in Rule 94(7)(d) CTMIR (EUR 550). As to the opposition proceedings, the Opposition Division’s ordered each party to bear its own costs. This remains unchanged.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Orders the applicant to bear the total amount of EUR 550 in respect of the costs of the opponent in the appeal proceedings.

Signed T. de las Heras

Signed H. Salmi

Signed R. Ocquet

Registrar: Signed H.Dijkema