OPPOSITION No B 2 869 330

Mitrados GmbH & Co. KG, Bischof-von-Henle-Str. 2b, 93051 Regensburg, Germany (opponent), represented by Hertin und Partner Rechts- und Patentanwälte PartG mbB, Kurfürstendamm 54/55, 10707 Berlin, Germany (professional representative)

a g a i n s t

Efloba S.C.A, Poligono Industrial San Jorge, C/ H Nº 269, 21810 Palos de la Frontera/Huelva, Spain (applicant), represented by Newpatent, Puerto, 34, 21001 Huelva, Spain (professional representative).

On 19/05/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 869 330 is rejected in its entirety.

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

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 15 937 601 for the figurative mark , namely against all the goods and services in Classes 31 and 35. The opposition is based on European Union trade mark registration No 11 489 317 for the figurative 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.

1. The goods and services

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

Class 3: Bleaching preparations and other substances for laundry use; Cleaning, polishing, scouring and abrasive preparations; Soaps; Perfumery, essential oils, cosmetics, hair lotions; Preparations for the care and treatment of hair; Shaving preparations, included in this class; Dentifrices; Cosmetics; Cosmetics all for sale in kit form; Cosmetic kits; Cosmetic pads; Cosmetic pencils; Impregnated cloths for cosmetic use; Baby care products (non-medicated).

Class 5: Pharmaceutical preparations; Sanitary preparations for medical purposes; Food and dietetic substances adapted for medical use, food for babies; Babies’ napkins [diapers]; Food supplements for human beings; Plasters, materials for dressings; Vitamin preparations; Albuminous preparations for medical purposes; Capsules for medicines; Medicinal tea; Mineral food supplements; Medicinal additives; Mineral waters for medicinal purposes; Healthcare preparations; Dietetic foodstuffs and food supplements with a base of amino acids, including with added vitamins and/or fatty acids; Medicated baby care products.

Class 35: Business management; Business administration and management advisory services; Professional business and organisational consultancy; Office functions; Retailing and/or wholesaling, including via the Internet or teleshopping programmes, in the field of goods for healthcare, cosmetics, medicines, natural medicines, homeopathic preparations, dietetic products, natural cosmetics, near-natural cosmetics, food supplements, vitamin preparations, beverages; Accounting for electronic order systems; Presentation of the aforesaid goods for retailing and wholesaling for advertising purposes on communications media; Order placement, delivery and invoice management in relation to the aforesaid goods within the framework of e-commerce; Arranging and processing of such commercial transactions, for others, via telecommunications systems and online shops; Demonstration of goods and services by electronic means, also for the benefit of the so-called teleshopping and homeshopping services; Arranging contracts for the buying and selling of goods and/or the providing of services, for others; Procurement services for others [purchasing goods and services for other businesses]; Rental of advertising space on the Internet; Presentation of goods and services for advertising purposes; Market research; Marketing for others, on digital networks; Market research and opinion polling; Merchandising (sales promotion); Sales promotion, for others, cross promotion, for others; Public relations; Sponsoring in the form of advertising; Comparison services (Price -); Development of reward schemes and discount schemes being customer loyalty initiatives for marketing purposes; All of the aforesaid services in connection with the trading of goods for healthcare and cosmetics.

The contested goods and services are the following:

Class 31: Fresh fruits, in particular strawberries, raspberries, blueberries and blackberries, raw fruits; Unprocessed fruits; Mixed fruits [fresh]; Organic fresh fruit.

Class 35: Advertising; Office functions; Issuing of publicity leaflets; Promotion, advertising and marketing of on-line websites; Publication of advertising literature; Publication of publicity materials; Market campaigns; Advertising and marketing; Publication of publicity texts; Advertising; Advertising via electronic media and specifically the internet; Advertisement via mobile phone networks; Advertising through all public communication means; Banner advertising; Publicity and sales promotion services; Online advertisements; Advertising, marketing and promotional services; Business administration; Business management; Import and export of horticultural and fruit products; Retailing, wholesaling and sale via the internet of fruits; Marketing services; Product marketing; Providing business information, also via internet, the cable network or other forms of data transfer; Electronic commerce services, namely, providing information about products via telecommunication networks for advertising and sales purposes; Providing business information, also via internet, the cable network or other forms of data transfer; Advertising by transmission of on-line publicity for third parties through electronic communications networks; Publicity and sales promotion relating to goods and services, offered and ordered by telecommunication or the electronic way; Business information services provided online from a global computer network or the internet; On-line promotion of computer networks and websites; Promotion, advertising and marketing of on-line websites; Arranging of trade fairs; Provision of on-line business and commercial information; On-line data processing services; Provision of an on-line marketplace for buyers and sellers of goods and services; Organization of events, exhibitions, fairs and shows for commercial, promotional and advertising purposes; Conducting, arranging and organizing trade shows and trade fairs for commercial and advertising purposes; Consultancy relating to the organisation of promotional campaigns for business; Distribution of promotional matter; Dissemination of advertising and promotional materials; Arranging of collective buying; Market research; Market analysis; Sales promotion; All the aforesaid services relating to fresh fruit products; Sales promotions at point of purchase or sale, for others; Retailing and wholesaling in shops and via global computer networks of fresh fruits; Agencies for the import and export of horticultural and fruit products.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

The terms ‘in particular’ and ‘including’, used in the applicant’s and opponent’s lists of goods and services, indicate that the specific goods and services are only examples of items included in the category and that protection is not restricted to them. In other words, they introduce a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

However, the term ‘namely’, used in the applicant’s list of services to show the relationship of individual services to a broader category, is exclusive and restricts the scope of protection only to the services specifically listed.

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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.

Contested goods in Class 31

The contested fresh fruits, in particular strawberries, raspberries, blueberries and blackberries, raw fruits; unprocessed fruits; mixed fruits [fresh]; organic fresh fruit and the opponent’s goods for consumption, such as food and dietetic substances adapted for medical use; food for babies; food supplements for human beings; vitamin preparations; mineral foods supplements; healthcare preparations in Class 5, are goods associated with healthy nutrition, as the opponent argues. However, this association alone is insufficient for a finding of similarity between the goods.

The opponent’s substances, supplements and preparations in Class 5 are products that are specifically prepared for and sold to consumers with special dietary or dietetic requirements, with the purpose of treating or preventing certain health conditions. Moreover, these goods are often taken as supplements in combination with other preparations, which makes their nature and method of use different from those of the applicant’s everyday unprocessed foodstuffs. While the contested goods may form part of an infinite variety of diets followed by consumers, the fact remains that the fundamental purposes of the goods under comparison are different: the opponent’s goods are intended to preserve or recover health, often on medical advice, whereas the contested goods are everyday foodstuffs essentially consumed to satiate hunger, without any dietetic or health considerations. Furthermore, these goods are not in competition, and nor are they complementary or provided by the same producers. Therefore, they are considered dissimilar.

The contested fresh fruits, in particular strawberries, raspberries, blueberries and blackberries, raw fruits; unprocessed fruits; mixed fruits [fresh]; organic fresh fruit are considered dissimilar to all of the opponent’s goods in Class 3, which include various cleaning preparations, perfumery and cosmetics. The goods do not have anything in common, as they differ in their natures, purposes and providers. Furthermore, they are usually offered either through different channels or at least in different departments of retail shops, and they are neither complementary nor in competition.

The opponent’s remaining goods in Class 5, those that are not for consumption, such as sanitary preparations for medical purposes; babies’ napkins [diapers]; plasters, materials for dressings, are not even remotely related to the contested fresh fruits, in particular strawberries, raspberries, blueberries and blackberries, raw fruits; unprocessed fruits; mixed fruits [fresh]; organic fresh fruit, as the contested goods are foodstuffs in the form of unprocessed and fresh berries and fruits, while the opponent’s goods are used to cover or protect parts of the body for various reasons, such as for healing purposes. As a result, they differ in their natures, purposes and methods of use. Furthermore, they are neither complementary nor in competition, and they are provided by different producers. Therefore, they are dissimilar.

Similarity between retail services of specific goods covered by one mark and specific goods covered by another mark can only be found where the goods involved in the retail services and the specific goods covered by the other mark are identical. This condition is not fulfilled in the present case, since the goods that are covered by the opponent’s retailing and/or wholesaling, including via the Internet or teleshopping programmes, in the field of goods for healthcare, cosmetics, medicines, natural medicines, homeopathic preparations, dietetic products, natural cosmetics, near-natural cosmetics, food supplements, vitamin preparations, beverages; all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics are not identical to any of the contested goods in Class 31. The contested fresh fruits, in particular strawberries, raspberries, blueberries and blackberries, raw fruits; unprocessed fruits; mixed fruits [fresh]; organic fresh fruit and the opponent’s retail services mentioned above are therefore dissimilar.

As far as the opponent’s remaining services in Class 35 are concerned, these are mostly marketing services, business administration and management advisory services and office functions, all in the fields of healthcare and cosmetics. These services have nothing in common with the contested fresh fruits, in particular strawberries, raspberries, blueberries and blackberries, raw fruits; unprocessed fruits; mixed fruits [fresh]; organic fresh fruit, as they differ greatly in their natures, purposes and methods of use. Furthermore, they are offered by different producers/providers through different distribution channels, and they are neither complementary nor in competition. Therefore, they are considered dissimilar.

Contested services in Class 35

The contested sales promotions at point of purchase or sale, for others include, as a broader category, the opponent’s sales promotion, for others; all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics in Class 35. Since the Opposition Division cannot dissect ex officio the broad category of the contested services, they are considered identical to the opponent’s services.

The contested retailing, wholesaling and sale via the internet of fruits; all the aforesaid services relating to fresh fruit products; retailing and wholesaling in shops and via global computer networks of fresh fruits are considered similar to the opponent’s retailing and/or wholesaling, including via the internet or teleshopping programmes, in the field of goods for healthcare, cosmetics, medicines, natural medicines, homeopathic preparations, dietetic products, natural cosmetics, near-natural cosmetics, food supplements, vitamin preparations, beverages; all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics in Class 35. The services at issue have the same nature, since both are retail and wholesale services, the same purpose of allowing consumers to conveniently satisfy different shopping needs and the same method of use.

It should be noted that most of the contested services have the following limitation: all the aforesaid services relating to fresh fruit products. The opponent’s services in Class 35 are also limited, as follows: all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics. Although such a limitation specifying a particular type of goods or a particular sector may rule out a finding of identity between services, it does not necessarily preclude the existence of similarity between them. This applies in particular to services that are not necessarily related only to specific sectors but, rather, involve general tasks that may be carried out in similar manner regardless of the client’s business, such as office functions, business administration or import and export services.

The opponent’s sales promotion, for others; all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics in Class 35 are advertising services. These services consists of providing others with assistance in the sale of their goods and services by promoting their launch and/or sale, or of reinforcing the client’s position in the market and acquiring competitive advantage through publicity. In order to fulfil this aim, many different means and products might be used. These services are provided by specialist companies that study their client’s needs and provide all the necessary information and advice for the marketing of their products and services, and create a personalised strategy regarding the advertising of their goods and services through newspapers, web sites, videos, the internet, etc.

These services of the opponent have similarities to the contested advertising; issuing of publicity leaflets; promotion, advertising and marketing of on-line websites; publication of advertising literature; publication of publicity materials; market campaigns; advertising and marketing; publication of publicity texts; advertising; advertising via electronic media and specifically the internet; advertisement via mobile phone networks; advertising through all public communication means; banner advertising; publicity and sales promotion services; online advertisements; advertising, marketing and promotional services; marketing services; product marketing; electronic commerce services, namely, providing information about products via telecommunication networks for advertising and sales purposes; advertising by transmission of on-line publicity for third parties through electronic communications networks; publicity and sales promotion relating to goods and services, offered and ordered by telecommunication or the electronic way; on-line promotion of computer networks and websites; promotion, advertising and marketing of on-line websites; consultancy relating to the organisation of promotional campaigns for business; distribution of promotional matter; dissemination of advertising and promotional materials; arranging of trade fairs; organization of events, exhibitions, fairs and shows for commercial, promotional and advertising purposes; conducting, arranging and organizing trade shows and trade fairs for commercial and advertising purposes; market research; market analysis; sales promotion; all the aforesaid services relating to fresh fruit products.

Although the contested services and the opponent’s services are limited to different goods, they still have the same purpose of promoting the launch and/or sale of a client’s goods, or of reinforcing the client’s position in the market and acquiring competitive advantage through publicity, or involve facilitating such services. Furthermore, the services are likely to be rendered by the same providers and are offered through the same distribution channels. Therefore, they are at least similar.

The contested office functions; on-line data processing services; all the aforesaid services relating to fresh fruit products are highly similar to the opponent’s office functions; all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics in Class 35. They have the same nature and purpose, notwithstanding the limitations to both the contested services and the opponent’s services, as they are still services that involve carrying out the day-to-day operations that are required by a business to achieve its objectives. Furthermore, they are rendered by the same providers and are offered through the same distribution channels.

The contested business administration; all the aforesaid services relating to fresh fruit products are highly similar to the opponent’s business administration; all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics in Class 35. They are business administration services consisting of organising people and resources efficiently to direct activities toward common goals and objectives. They include activities such as personnel recruitment, payroll preparation, drawing up account statements and tax preparation. Furthermore, they have the same providers and are offered through the same distribution channels.

The contested business management; arranging of collective buying; providing business information, also via internet, the cable network or other forms of data transfer; providing business information, also via internet, the cable network or other forms of data transfer; business information services provided online from a global computer network or the internet; provision of on-line business and commercial information; all the aforesaid services relating to fresh fruit products are highly similar to the opponent’s business management advisory services; all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics in Class 35. In spite of the fact that the both the contested services and the opponent’s services have specific limitations, they still belong to, or fall within, the same category, that of business management. These services are usually rendered by companies specialising in this specific field, such as business consultants. These companies gather information and provide tools and expertise to enable their customers to carry out their business or provide businesses with the necessary support to acquire, develop and expand market share, notwithstanding the sector in which their customers operate. Consequently, the services have the same nature, purpose, providers and distribution channels.

The contested provision of an on-line marketplace for buyers and sellers of goods and services; all the aforesaid services relating to fresh fruit products are closely related to the opponent’s arranging and processing of such commercial transactions, for others, via telecommunications systems and online shops; all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics in Class 35, as both sets of services involve facilitating commercial transactions online. Consequently, they have the same nature, purpose, distribution channels and providers. Therefore, they are highly similar.

The contested import and export of horticultural and fruit products; all the aforesaid services relating to fresh fruit products; agencies for the import and export of horticultural and fruit products relate to the movement of goods and normally require the involvement of customs authorities in both the country of import and the country of export. These services are often subject to import quotas, tariffs and trade agreements. They are closely related to the opponent’s business administration; all of the aforesaid services in connection with the trading of goods for healthcare and cosmetics in Class 35. Although business consultants do not actually carry out import-export operations, their advice on them is key to a company’s strategy; therefore, import and export services are considered similar to the opponent’s services, since they have the same distribution channels and providers, and they target the same public.

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 services found to be identical or similar to varying degrees are directed at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention will vary between average (e.g. for retailing of fruits in Class 35) and high (e.g. for business management in Class 35), depending on the price, sophistication, or terms and conditions of the goods and services purchased.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The verbal elements ‘NATÜRLICH SCHÖN EINKAUFEN’ of the earlier trade mark are non-distinctive from the perspective of the German-speaking part of the public, as will be explained below. Furthermore, the remaining verbal elements of both signs are meaningless in all languages of the European Union and they are, therefore, distinctive. Bearing in mind that most of the differences between the signs reside in the verbal elements ‘NATÜRLICH SCHÖN EINKAUFEN’, which are non-distinctive, the Opposition Division finds it appropriate to focus the comparison of the signs on the German-speaking part of the public, as this is the most advantageous scenario for the opponent.

The contested sign is a figurative mark consisting of the verbal element ‘NICOBA’, written in black lower case letters in a fairly standard typeface. In addition, there is a figurative element, to the left of the word and extending from the top to the bottom of the sign, consisting of a shape in shades of red and purple. It curves towards the right-hand side of the sign and is thicker at the top than at the bottom. On top of this figurative element is a green leaf, and under the word element are four small yellow ovals. Taken as a whole, the figurative elements of the contested sign resemble a stylised radish or the outline of a strawberry.

The word ‘NICOBA’ has no meaning for the relevant public and is, therefore, distinctive. As regards the figurative elements, although the association they evoke is weak, or even non-distinctive, bearing in mind that the contested services are related to fresh fruit products, the depiction of these figurative elements is rather stylised. Therefore, the figurative elements of the contested sign, taken as a whole, must be considered to have a certain degree of distinctiveness. The contested sign has no elements that could be considered clearly more dominant than others.

The earlier sign is a figurative mark consisting of the verbal element ‘NAJOBA’ in lower case letters. Underneath, in much smaller print, are the words ‘NATÜRLICH SCHÖN EINKAUFEN’ in upper case letters. All of the verbal elements are in a standard black typeface. To the left of the verbal elements is a figurative element consisting of three vertical curved lines of different lengths and a horizontal curved line placed against a black circle. All these verbal and figurative elements are set against a horizontal rectangular square in a light grey colour.

The Opposition Division finds that the words ‘NATÜRLICH SCHÖN EINKAUFEN’ cannot be considered negligible, as they are clearly visible and will not be overlooked by the relevant public. However, due to their relatively small size and their subordinate position underneath a larger verbal element, the words ‘NATÜRLICH SCHÖN EINKAUFEN’ must be considered to have less visual impact than the larger verbal element ‘NAJOBA’. Considering the earlier mark as a whole, it is the verbal element ‘NAJOBA’ and the figurative element that are the most visually outstanding elements of the sign.

The word ‘NAJOBA’ of the earlier sign has no meaning for the relevant public and is, therefore, distinctive. As for the German verbal elements ‘NATÜRLICH SCHÖN EINKAUFEN’, this expression will be perceived as a play on words meaning ‘buy something natural’ or ‘certainly you will have a good buying experience’. This slogan will be understood as a promotional statement either emphasising the natural character of the goods or services concerned or indicating the high quality of the buying experience. It is therefore considered non-distinctive and will, consequently, have a very limited impact on the overall impression of the sign.

The figurative element of the earlier mark might be perceived as resembling strands of grass or straw, which do not directly relate to any of the services’ characteristics. Even if this element is perceived as an abstract element without a particular concept, the graphic depiction of the mark is not so simple and therefore cannot be neglected in the overall impression.

The opponent argues that the assessment of the similarity between the signs should be focused on the verbal elements ‘NAJOBA’ and ‘NICOBA’ only, considering the distinctiveness of the elements of the signs and bearing in mind that the verbal component of a sign usually has a stronger impact on the consumer when signs consist of both verbal and figurative components. However, although this is, in principle, true, it does not mean that elements such as the figurative elements of the signs are not to be taken into account at all in the assessment of similarity, as they do in fact affect the overall impressions created by the signs.

Visually, the signs coincide in the string of letters ‘N**OBA’. They differ in their second and third letters, namely ‘AJ’ in the earlier mark and ‘IC’ in the contested sign. Furthermore, they differ in their typefaces, colours and figurative elements and the positions of those figurative elements. The earlier sign has the additional verbal elements ‘NATÜRLICH SCHÖN EINKAUFEN’. However, due to its small size and lack of distinctiveness, as explained above, the expression ‘NATÜRLICH SCHÖN EINKAUFEN’ will have a limited impact on the visual comparison of the signs.

Taking the above into account, the signs are visually similar to a low degree.

Aurally, it must be taken into account that the expression ‘NATÜRLICH SCHÖN EINKAUFEN’ of the earlier sign is not likely to be pronounced, in particular as it is a non-distinctive slogan and due to its secondary position within the mark (03/07/2013, T‑206/12, LIBERTE american blend, EU:T:2013:342; 03/06/2015, T‑544/12, PENSA PHARMA, EU:T:2015:355; 03/06/2015, T‑546/12, pensa, EU:T:2015:355). Furthermore, the figurative elements have no impact on the pronunciation of the signs.

As regards the remaining elements, both signs have three syllables, namely ‘NA/JO/BA’ in the earlier sign and ‘NI/CO/BA’ in the contested sign. However, the only coinciding aural element of the signs is their last element, namely ‘-BA’, while the pronunciation of the first two syllables of the signs, ‘NA/JO’ and ‘NI/CO’, differs considerably due to the differing letters in the second and third positions in the signs, ‘IC’ and ‘JO’.

Consequently, the signs are considered aurally similar to a low degree.

Conceptually, although the signs as a whole do not have any meaning for the public in the relevant territory, the figurative elements of the signs may be associated with the meanings explained above. The concepts evoked by the signs, namely strands of grass or straw in the earlier sign and a radish or strawberry in the contested sign, are different. As for the remaining verbal elements in the earlier sign, ‘NATÜRLICH SCHÖN EINKAUFEN’, they have no counterpart in the contested sign and are, furthermore, non-distinctive. Consequently, this slogan has a limited impact on the conceptual comparison.

Therefore, the signs are not similar conceptually.

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 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, despite the presence of some non‑distinctive elements in the mark, as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

According to settled case-law, 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, constitutes a likelihood of confusion (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 29). The likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (29/09/1998, C‑39/97, Canon, § 16, EU:C:1998:442, § 29).

In the present case, the signs are visually and aurally similar to a low degree and they are not conceptually similar.

The contested goods and services are partly identical, partly similar to varying degrees and partly dissimilar to the opponent’s goods and services. The relevant public consists both of the public at large and of business customers, and the degree of attention of the relevant public varies from average to high. The earlier mark enjoys an average degree of inherent distinctiveness.

As regards the dissimilar goods, as similarity of goods is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

In relation to the remaining services, even taking into account that the services are identical or similar to a high degree, the similarities between the marks are not sufficient to lead to a likelihood of confusion on the part of the public, even for the non-professionals with an average degree of attention, as the coinciding elements of the signs do not play an independent distinctive role in the signs. Furthermore, the Opposition Division considers that the differences between the signs are clearly perceptible and sufficient to exclude any likelihood of confusion between them.

Moreover, for some of the services the relevant public has a higher degree of attention, and will be prone to recognise and subsequently dismiss the minor coinciding elements and instead focus on the differences between the signs, which will enable them to safely differentiate between them.

Considering all the above, there is no likelihood of confusion for the German-speaking part of the public. As for the remaining public, it should be noted that the additional verbal elements ‘NATÜRLICH SCHÖN EINKAUFEN’ of the earlier trade mark will be regarded as distinctive elements without any meaning. In this scenario, the degree of similarity between the signs will be even lower. Consequently, there is no likelihood of confusion for the remaining part of the public either.

Therefore, the opposition must be rejected.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Denitza STOYANOVA-VALCHANOVA

Tu Nhi VAN

Lars HELBERT

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.