OPPOSITION No B 2 646 753

E. M. Group Holding AG, Hettlinger Str. 9, 86637 Wertingen, Germany (opponent), represented by Boehmert & Boehmert Anwaltspartnerschaft mbB – Patentanwälte Rechtsanwälte, Hollerallee 32, 28209 Bremen, Germany (professional representative)

a g a i n s t

Wijngaard ‘Hof van Twente’, Suetersweg 2 a, 7497 MZ Bentelo, The Netherlands (applicant), represented by Arnold & Siedsma, Colosseum 1-3, 7521 PV Enschede, The Netherlands (professional representative)

On 17/02/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 646 753 is upheld for all the contested goods and services.

2. European Union trade mark application No 14 659 502 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against all the goods and services of European Union trade mark application No 14 659 502. The opposition is based on German trade mark registrations No 302 014 075 468 and No 302 015 035 622. 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.

1. The goods and services

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

German trade mark registration No 302 014 075 468

Class 29: Prepared meals made of meat, fish, vegetables, fruits; soups and bouillon; snacks made of meat, fish, vegetables and/or fruits and desserts; fish; seafood and molluscs; meat; poultry; game; dairy products and dairy substitutes; processed fruits, fungi and vegetables [including nuts and pulses]; birds eggs and egg products; meats; jams; compotes; milk; oils and fats; processed potato products; jellies.

Class 32: Beer and brewery products; mineral and aerated waters; non-alcoholic beverages; syrups and other preparations for making beverages; fruit juice beverages; whey beverages.

Class 33: Alcoholic beverages (except beers); preparations for making alcoholic beverages.

German trade mark registration No 302 015 035 622

Class 35: Retail sale, whole sale services and product ordering through mail for restaurants, catering and hotel establishments of products, namely detergents and bleaching agents, cleaning, polishing and scouring preparations, soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices, aluminum foils, serving containers and trays made of aluminum for household, kitchen and hotel use, vaults, safes, vacuum cleaners, cutlery, forks, spoons, razors, heating devices, steam generating devices, cooking devices, cooling devices, drying and ventilating devices, ovens, roasting devices, refrigerators, coffee makers, water heaters, air humidifiers, air conditioning installations, ventilating fans, hair dryers, shoe cleaning machines, shower rods, paper, cardboards, printed matter, books, pamphlets, hotel forms, menu and drink cards, table cloths, paper towels, paper napkins; paper decorations [flowers, garlands, confetti], photographs, poster, stationery, adhesives for paper and stationery products or for use in households, plastic materials for packaging, table foils, cases for menus made of leather and artificial leather, leather and artificial leather as well as goods made thereof, purses, wallets, key cases, furniture, furniture for kitchens, mirrors, frames, coat stands and luggage stands, racks, display boards, coat hangers made of wood, plastic and metal wire, goods made from wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum or of plastics, chair pads, beds, mattresses, bed pads, bed blankets, shower curtains, pillows, utensils and containers for use in households, kitchens and hotels, electric kitchen machines, non-electric cooking utensils, cooking pots, glassware, porcelain and earthenware for use in households, kitchens and hotels, tableware, kitchen utensils and cooking pot sets, pitchers, glasses, beer mugs, frying pans, bread baskets, butter dishes, egg cups, salt shakers, pepper pots, toothbrush cups, soap boxes, corkscrews, shakers, vases, candlesticks, boxes adapted for cutlery, food storage boxes, wooden boards for use in households, kitchens and hotels, buckets, brooms, brushes and cleaning articles, combs and sponges, works of art made of glass, porcelain and stone, paper cups, paper plates, nets, tents, awnings, bedsprings, woven fabrics, fabrics, bed and table clothes and table covers, table shams, curtains, stores, curtains, blankets, duvets, bed covers, towels, tea towels, bathrobes, clothing, shoes, headgear, working clothes, work shoes, work headgear, carpets, rugs, mats, bath mats, ashtrays, smoker’s accessories, sporting articles and equipment, festive decorations, artificial Christmas trees, toys, games, playthings, information technology and audiovisual equipment, artificial flowers, artificial fruits, artificial vegetables, ready-made meals, soups, bouillon, snacks, desserts, fish, sea foods, shellfish, meat, poultry, game, dairy products, dairy substitutes, processed fruits and vegetables [including nuts, pulses], processed mushrooms, birds eggs, egg products, meats, jams, compotes, milk, edible oils and fats, processed potato products, jellies, pastry and confectionery, chocolate, sweets, chocolate products, edible ices, ice creams, frozen yoghurts, sorbets, prepared meals, savory snacks, coffee, teas, cacao, coffee, tea and cacao substitutes, cooking salt, spices, seasonings, flavorings for beverages, processed grains, starches, baking preparations, yeasts, sugar, natural sweeteners, rice, tapioca, sago, flour and preparations made from cereals, bread, honey, mustards, vinegar, sauces [condiments], pasta, candy, live plants, plant seeds, plants [dried] for decoration purposes, agricultural, horticultural and forestry products, aquaculture products, beers and brewery products, mineral and aerated waters, non-alcoholic beverages, syrups and other preparations for making beverages, fruit beverages and fruit juices, whey beverages, alcoholic beverages [except beers], alcoholic preparations for making beverages.

The contested goods and services are the following:

Class 29: Vegetable juice concentrates and Vegetable extracts for food; Processed vegetables; Jams, jellies and fruit and vegetable spreads; Vegetable-based snack foods; Vegetable bouillon.

Class 32: Vegetable juice and Non-alcoholic vegetable juice drinks; Juices; Vegetable smoothies; Beers based on vegetable juice and vegetable extracts.

Class 33: Alcoholic beverages based on vegetable juice and vegetable juice concentrates; Wine; Cider, Aperitifs and Digestives, Partly based on vegetables; Punch based on vegetables; Vegetable preparations for making alcoholic beverages.

Class 35: Wholesaling and retailing of vegetable juice concentrates and vegetable extracts for food, processed vegetables, jams, jellies, fruit and vegetable spreads, snacks based on vegetables, vegetable broths; Wholesaling and retailing of vegetable juices, non-alcoholic beverages based on vegetable juice, fruit juices, vegetable smoothies, alcoholic beverages based on vegetable juice and vegetable juice concentrates, beers, wines, ciders, aperitifs and digestifs, punch based on vegetables and vegetable preparations for making alcoholic beverages.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection. The term ‘namely’, used in the opponent’s list of services in Class 35, is exclusive and restricts the scope of protection of retail sale, whole sale services and product ordering through mail for restaurants, catering and hotel establishments of products only to the goods specifically listed thereafter.

Contested goods in Class 29

The contested vegetable juice concentrates and vegetable extracts for food; processed vegetables; jams, jellies and fruit and vegetable spreads; vegetable-based snack foods; vegetable bouillon are clearly either identically reproduced or included in the opponent’s respective broad categories of bouillon; snacks made of vegetables; processed vegetables and/or fruit; jams; jellies. Consequently, all the goods in this class are identical.

Contested goods in Class 32

The contested vegetable juice and non-alcoholic vegetable juice drinks; juices; vegetable smoothies are clearly included in the opponent’s broad category of non-alcoholic beverages. The contested beers based on vegetable juice and vegetable extracts are clearly included in the opponent’s broad category of beer. Consequently, all the contested goods in this class are identical.

Contested goods in Class 33

The contested alcoholic beverages based on vegetable juice and vegetable juice concentrates; wine; cider, aperitifs and digestives, partly based on vegetables; punch based on vegetables are clearly included in the opponent’s broad category of alcoholic beverages (except beers). The contested vegetable preparations for making alcoholic beverages are clearly included in the opponent’s broad category of preparations for making alcoholic beverages. Consequently, all the contested goods in this class are identical.

Contested services in Class 35

The contested wholesaling and retailing of vegetable juice concentrates and vegetable extracts for food, processed vegetables, jams, jellies, fruit and vegetable spreads, snacks based on vegetables, vegetable broths; Wholesaling and retailing of vegetable juices, non-alcoholic beverages based on vegetable juice, fruit juices, vegetable smoothies, alcoholic beverages based on vegetable juice and vegetable juice concentrates, beers, wines, ciders, aperitifs and digestifs, punch based on vegetables and vegetable preparations for making alcoholic beverages are all included in the opponent’s retail sale, whole sale services for restaurants, catering and hotel establishments of products, namely processed vegetables and/or fruits, jams, jellies, bouillon, snacks, non-alcoholic beverages, fruit juices, beers; alcoholic beverages [except beers], alcoholic preparations for making beverages. Consequently, all the contested services in this class are identical.

2. 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 and services found to be identical are mostly directed at the public at large. However, wholesale services target businesses. The degree of attention may therefore vary from average to high.

3. The signs

VEGA	VINI VEGA
Earlier trade mark	Contested sign

The relevant territory is Germany.

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 and the contested sign are word marks. Therefore, neither of them has any element that could be considered more dominant (visually eye-catching) than other elements.

The earlier mark consists of the word ‘VEGA’, which has no direct meaning in relation to the relevant goods and services. This word as such is fanciful and, contrary to the applicant’s argument, not a usual way to refer to ‘vegetarian food’ in German (as it is not a common abbreviation of the German word ‘vegetarisch’), let alone a usual way to refer to ‘vegetables’ (‘das Gemüse’ in German). Therefore, the Opposition Division considers that the word ‘VEGA’ has an average degree of distinctiveness in relation to the relevant goods and services, because it is not likely to be perceived by consumers as a ‘direct and immediate reference to a desirable aspect of the goods, being based on vegetables’, as argued by the applicant.

The contested mark consists of two word elements, ‘VINI’ and ‘VEGA’, which have no direct meaning in relation to the relevant goods and services in the relevant territory and are therefore distinctive.

Visually, the signs coincide in the word ‘VEGA’, which is the sole element of the earlier mark and the second verbal element of the contested sign. The marks differ in the first element, ‘VINI’, of the contested sign. However, considering that the word ‘VEGA’ is the only element of the earlier mark and plays an independent role in the contested sign, this difference cannot counterbalance the visual similarity resulting from the coinciding verbal element ‘VEGA’. Therefore, the signs are visually similar to an average degree.

Aurally, the signs coincide in the pronunciation of the syllables ‘VE-GA’. They differ in the syllables ‘VI-NI’ of the contested sign. Nevertheless, the fact that the earlier mark is completely reproduced in the contested sign – albeit at the end of the sign – generates an average degree of aural similarity between the marks.

Conceptually, neither of the signs has a clear 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.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. 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 and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 8 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

In the present case, the conflicting goods and services are identical and the degree of attention paid by the relevant public is average. The marks are visually and aurally similar to an average degree.

Under these circumstances, the difference between the signs resulting from the verbal element ‘VINI’ – although it appears at the beginning of contested sign, which is the part of a sign to which more attention is generally paid, as argued by the applicant – is not sufficient to counteract the strong similarities.

The relevant consumers may think that the relevant goods and services come from the same company or from economically related companies and that the contested sign is a sub-brand of services connected to the earlier mark. It should also be recalled that the average consumer only rarely has the chance to make a direct comparison between the different marks and must place their trust in the imperfect picture of them that he has kept in his mind (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Moreover, account should also be taken of the normal degree of distinctiveness of the earlier mark.

In its observations, the applicant argues that the earlier trade mark has a low distinctive character given that there are many trade marks that include the word ‘VEGA’. In support of its argument the applicant refers to some German and European Union trade mark registrations.

The Opposition Division notes that the existence of several trade mark registrations is not per se particularly conclusive, as it does not necessarily reflect the situation in the market. In other words, on the basis of data concerning a register only, it cannot be assumed that all such trade marks have been effectively used. It follows that the evidence filed does not demonstrate that consumers have been exposed to widespread use of, and have become accustomed to, trade marks that include the word ‘VEGA’. Under these circumstances, the applicant’s claims must be set aside.

Based on all the foregoing, it is considered that the overall impressions of the signs are sufficiently similar to lead consumers to believe that the conflicting identical goods and services come from the same undertaking or economically linked undertakings.

Therefore, the opposition is well founded on the basis of the opponent’s German trade mark registrations No 302 014 075 468 and No 302 015 035 622. It follows that the contested trade mark must be rejected for all the contested goods and services.

COSTS

According to Article 85(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 Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, 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

Zuzanna STOJKOWICZ

Cynthia DEN DEKKER

Jessica LEWIS

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.