DECISION

of the First Board of Appeal

of 16 October 2019

In case R 1894/2018-1

Bahlsen GmbH & Co. KG
Podbielski-Str. 11 30163 Hannover Germany	Applicant / Appellant

represented by KLAWITTER NEBEN PLATH ZINTLER KNPZ RECHTSANWÄLTE, Kaiser-Wilhelm-Str. 9, 20355 Hamburg, Germany

v

TRADE & MORE, S.L.
C/ Fernando Pessoa 54-64 08030 Barcelona Spain	Opponent / Defendant

represented by INGENIAS, Av. Diagonal, 421, 2º, 08008 Barcelona, Spain

APPEAL relating to Opposition Proceedings No B 2 834 292 (European Union trade mark application No 15 954 522)

The First Board of Appeal

composed of Th. M. Margellos (Chairperson), C. Rusconi (Rapporteur) and Ph. von Kapff (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 19 October 2016, Bahlsen GmbH & Co. KG (‘the applicant’) sought to register the figurative mark, in yellow, brown and green, reproduced hereunder

for the following goods (hereinafter, ‘the contested goods’):

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; jellies for food; jams; compotes; eggs; milk; dairy products; edible oils; edible fats; potato snacks; raisins; dried nuts; roasted nuts; salted nuts; spiced nuts; dried fruit products; fat-containing mixtures for bread slices; yogurt; dairy products and dairy substitutes;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour; cereal preparations; bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; salt; mustard; vinegar; sauces [condiments]; spices; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn; waffles.

in addition to services in Class 41 which are not at issue in these proceedings.

2. The application was published on 9 November 2016.

3. On 19 January 2017, TRADE & MORE, S.L. (‘the opponent’) filed an opposition against the registration of the published trade mark application for the above goods.

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:

1. EUTM Registration No 13 066 584 ‘Oils & More’

filed on 6 August 2014 and registered on 2 December 2014 for the following goods:

Class 29 - Edible oils and fats;

Class 30 - Vinegar, sauces and seasonings;

Class 31 - Agricultural and forestry products.

2. EUTM Registration No 13 066 592 ‘Olives & More’

filed on 6 August 2014 and registered on 2 December 2014 for the following goods:

Class 29 - Edible oils and fats;

Class 30 - Vinegar, sauces and seasonings;

Class 31 - Agricultural and forestry products.

3. EUTM Registration No 15 240 039 ‘& MORE’

filed on 18 March 2016 and registered on 9 August 2016 for the following goods:

Class 29 - Edible oils and fats; Olive oil; Corn oil; Edible oils; Spiced oils; Cooking oils; Edible fats; Shortening; Butter for use in cooking; Snack foods based on nuts; Snack foods based on vegetables; Vegetable-based snack foods; Meat-based snack foods; Nut-based snack foods; Soy-based snack foods; Potato-based snack foods; Stock; Soups; Dips; Croquettes; Stock cubes; Extracts for soups; Spiced nuts; Roasted nuts; Salted nuts; Prepared nuts; Bottled vegetables; Potato sticks; Soup pastes; French fries; Fish in olive oil; Desserts made from milk products; Snack foods based on legumes; Dairy products and dairy substitutes; Processed fruits, fungi and vegetables (including nuts and pulses); Birds eggs and egg products; Fish, seafood and molluscs; Jellies, jams, compotes, fruit and vegetable spreads; Olives, preserved; Dried olives; Olives, [prepared]; Olives, [prepared]; Canned processed olives; Olive paste; Olive puree; Pates;

Class 30 - Ready to eat savoury snack foods made from maize meal formed by extrusion; Extruded wheat snacks; Prepared foodstuffs in the form of sauces; Snack foods made from corn; Snack foods made from wheat; Crisps made of cereals; Tortilla snacks; Puffed corn snacks; Snack foods consisting principally of bread; Sugars, natural sweeteners, sweet coatings and fillings, bee products; Coffee, teas and cocoa and substitutes therefor; Processed grains, starches, and goods made thereof, baking preparations and yeasts; Ice, ice creams, frozen yogurts and sorbets; Baked goods, confectionery, chocolate and desserts; Salts, seasonings, flavourings and condiments; Syrups and treacles; Salt; Sauces; Cookies; Toasts [biscuits]; Salted biscuits; Rusks; Aperitif biscuits; Bread; Pastries, cakes, tarts and biscuits (cookies); Sauces [condiments]; Canned sauces;

Class 31 - Agricultural and aquacultural crops, horticulture and forestry products; Fungi; Unprocessed olives; Unprocessed olives; Olives, fresh; Nuts [fruits].

4. EUTM Registration No 13 358 932 ‘Paté & More’

filed on 6 October 2014 and registered on 11 February 2015 for the following goods:

Class 29 - Edible oils and fats;

Class 30 - Vinegar, sauces and seasonings;

Class 31 - Agricultural and forestry products.

5. EUTM Registration No 13 066 568 ‘Sweet & More’

filed on 6 August 2014 and registered on 13 February 2015 for the following goods:

Class 29 - Edible oils and fats;

Class 30 - Vinegar, Sauces and condiments, The aforesaid goods and products not containing any sugar substitutes or sweeteners;

Class 31 - Agricultural and forestry products.

6. EUTM Registration No 13 806 641 ‘trade & more’

filed on 5 March 2015 and registered on 28 July 2015 for the following goods:

Class 29 - Preserved, dried fruits and vegetables, milk and milk products, edible oils and fats;

Class 30 - Salt, vinegar, spices, flour and preparations made from cereals;

Class 31 - Agricultural and forestry products.

7. EUTM Registration No 13 614 706 ‘tasty & more’

filed on 23 December 2014 and registered on 3 July 2015 for the following goods:

Class 29 - Edible oils and fats;

Class 30 - Vinegar, sauces and seasonings;

Class 31 - Agricultural and forestry products.

8. EUTM Registration No 15 220 171 ‘SALT & MORE’

filed on 15 March 2016 and registered on 5 August 2016 for the following goods:

Class 29 - Edible oils and fats; Processed fruits, fungi and vegetables (including nuts and pulses); Dairy products and dairy substitutes; Seasoned nuts; Spiced nuts; Salted nuts; Processed nuts;

Class 30 - Salts, seasonings, flavourings and condiments; Spices; Spiced salt; Salt; Food dressings [sauces]; Dressings for food; Sauces; Vinegar; Prepared foodstuffs in the form of sauces;

Class 31 - Agricultural and aquacultural crops, horticulture and forestry products; Fungi; Fresh fruits, nuts, vegetables and herbs; Nuts [fruits].

9. EUTM Registration No 13 227 251 ‘Sauce & More’

filed on 1 September 2014 and registered on 3 February 2015 for the following goods:

Class 29 - Edible oils and fats;

Class 30 - Vinegar, sauces and seasonings;

Class 31 - Agricultural and forestry products.

10. EUTM Registration No 13 066 576 ‘Cook & More’

filed on 6 August 2014 and registered on 8 December 2014 for the following goods:

Class 21 - Household or kitchen utensils and containers;

Class 29 - Edible oils and fats;

Class 30 - Vinegar, sauces and seasonings;

Class 31 - Agricultural and forestry products.

6. The opponent stated that its marks formed a ‘family’ based on the common element ‘&More’ and that consumers would ascribe the applicant’s mark to that family. As evidence of use of the marks, the opponent submitted pictures of stands at trade fairs where it exhibited its food products (Alimentaria 2016, Barcelona; ISM 2017 and 2018, Cologne) and attached hyperlinks to websites such as YouTube and Facebook.

7. By decision of 27 July 2018 (‘the contested decision’), the Opposition Division refused the trade mark applied for, for all the contested goods on the grounds that there was a likelihood of confusion on part of the Spanish‑speaking public with the earlier EUTM No 15 240 039 ‘& More’ (fig.). It gave, in particular, the following grounds for its decision:

• The contested goods in Classes 29 and 30 are identical or similar to the goods of the earlier mark: they have the same producers, method of use, distribution channels, and target the same public at large; moreover, they are in competition with each other.

• The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

• In the present case, the goods found to be identical or similar to different degrees are directed at the public at large. They are rather cheap products that are bought and consumed on a daily basis. Therefore, the degree of attention paid by the public during the purchase of the goods involved is deemed to be lower than average.

• The earlier mark is a figurative mark consisting of the element ‘&’ placed over the letter ‘o’ of the word ‘More’, written in black stylized letters. A black fork is depicted on the left and the letter ‘M’ is formed by the prongs of the fork.

• The contested sign is a figurative mark composed of the verbal element ‘KEKS’ and the element ‘&’ placed above the word ‘MORE’, all written in brown upper‑case letters. The verbal elements are set against a large yellow rectangle with three green lines: one at the top, a smaller one in the middle, and one at the bottom.

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

• The elements ‘KEKS’ and ‘MORE’ are meaningful in certain territories, for example in Bulgaria and the Czech Republic where ‘KEKS’ means ‘cake’ and in the United Kingdom where ‘MORE’ is understood. Consequently, the Opposition Division found it appropriate to focus the comparison of the signs on the Spanish-speaking part of the public, for whom the words will be seen as fanciful terms and therefore as distinctive to an average degree.

• The symbol ‘&’, placed in both signs, will be perceived as the ampersand symbol meaning ‘and’, and its distinctiveness is normal in relation to the goods in question.

• As regards the figurative elements of the contested sign, namely the yellow rectangle with three green lines, they serve purely decorative purposes and are, therefore, contrary to the applicant’s argument, weak.

• According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim did not have to be assessed in the present case.

• Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of a weak element in the mark, namely the fork.

• In this case, the goods have been found partly identical and partly similar to various degrees and are directed at the public at large, with a lower than average degree of attention. Neither of the signs has any element that is more dominant than the others. The earlier mark is distinctive to a normal degree. The signs are visually and aurally similar to an average degree and conceptually similar to a high degree. Moreover, the additional figurative elements of the signs are weak for the reasons set out above. Consequently, the relevant public cannot distinguish the signs on account of these weak elements.

• Account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

• Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between 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). In this case, it is considered that the coincidences between the signs, together with the identity and similarity (to different degrees) of the goods involved, are enough to outweigh their dissimilarities.

• The above finding is even more evident when considering that the relevant public´s level of attention is lower than average during the purchase of the goods, since those consumers pay less attention to the marks, and therefore will more easily overlook the possible differences between them.

• Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically‑linked undertakings.

• Furthermore, it is common practice in the relevant market for manufacturers to make variations to their trade marks, for example by altering the typeface or colours, or adding verbal or figurative elements, in order to denote new product lines or to endow a trade mark with a new, fashionable image.

• In the present case, although the public in the relevant territory might detect certain differences between the signs, the likelihood that they might associate the signs with each other is very real. It is highly likely that the relevant consumer will perceive the contested sign as a sub-brand or as a variation of the earlier mark, configured in a different way depending on the type of goods that it designates. It is, therefore, conceivable that the relevant public will regard the goods designated by the conflicting signs as belonging to two ranges of goods coming from the same undertaking (23/10/2002, T-104/01, Fifties, EU:T:2002:262, § 49).

• In its observations, the applicant argues that the earlier trade mark has a low distinctive character, given that many trade marks include the elements ‘& MORE’. In support of its argument, the applicant refers to several trade mark registrations in Germany and the European Union.

• 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 register data 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 ‘& MORE’. Under these circumstances, the applicant’s claims must be set aside.

• Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Spanish-speaking public. As stated above, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

• It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to varying degrees to those of the earlier trade mark.

• Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 15 240 039. It follows that the contested trade mark must be rejected for all the contested goods.

• Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there was no need to assess the enhanced degree of distinctiveness of the opposing mark due to its extensive use, as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

• As the earlier right European Union trade mark registration No 15 240 039 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there was no need to examine the other earlier rights invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).

Submissions and arguments of the parties

8. On 25 September 2018, the applicant filed an appeal against the contested decision, requesting that the decision be entirely set aside. The arguments raised in the statement of grounds received on 26 November 2018 may be summarised as follows:

• The word component ‘& MORE’ is not distinctive. It is used in trade to highlight the fact that the product range of a company also includes goods which go beyond the core products of the company.

• In October 2018, the EUIPO decided that the basic English term ‘MORE’ is understood by the Spanish consumers (opposition proceedings 08/10/2018, B 2 817 040).

• Numerous trade marks including the elements ‘& MORE’ are registered throughout Europe and also in Spain there is evidence that the consumers have been exposed to expressions like ‘COFFEE & More’, ‘MILES & MORE’, ‘WINELOVERS & MORE’, ‘SHOES & MORE’ (screenshots from internet attached).

• The comparison of the signs has therefore to be carried out by comparing their figurative elements. The designs of the letter ‘M’ and of the ampersand symbol ‘&’ are very different in the signs to be compared.

• The contested sign’s first element ‘KEKS’ has no meaning in most European countries and in particular in Spain. Therefore, the signs differ from a visual, aural and conceptual point of view.

• The evidence filed to prove enhanced distinctiveness is negligible as it is limited to a few images of trade fairs where some of the earlier marks have been used.

• The evidence filed to prove the existence of a family of marks is poor as it consists of low figures relating to visits to some social networks (YouTube, Facebook) and some images of trade fairs.

9. In its response received on 4 February 2019, the opponent requested that the appeal be dismissed.

10. The arguments raised in response may be summarised as follows:

• As stated in the contested decision, the word component ‘& MORE’ will be considered as fanciful and distinctive by the Spanish consumers.

• None of the examples cited by the applicant to prove that trade marks including the elements ‘& MORE’ are widely used in Spain is valid and they should be disregarded.

• The signs under comparison are phonetically and conceptually very similar and from a visual perspective similar.

Reasons

11. All references made in this decision should be seen as references to the EUTMR (EU) No 2017/1001 (OJ 2017 L 154, p. 1), codifying Regulation (EC) No 207/2009 as amended, unless specifically stated otherwise in this decision.

12. The appeal complies with Articles 66, 67 and Article 68(1) EUTMR. It is admissible.

13. The appeal is well-founded and the opposition, in so far as it targets the contested goods, must be rejected because the conditions for a likelihood of confusion to exist under Article 8(1)(b) EUTMR are not satisfied for any of the earlier marks.

Article 8(1)(b) EUMTR

14. Under Article 8(1)(b) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered if, because of its 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. A likelihood of confusion includes the likelihood of association with the earlier mark.

15. 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 within the meaning of that Article (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 16-18; 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 29; 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 17).

16. In line with the same case-law, a likelihood of confusion must be assessed globally, based on how the relevant public would perceive the marks and the goods and services in question and 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; 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 16; 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18).

17. The aforementioned global assessment implies some interdependence between the factors taken into account, and in particular between the similarity of the trade marks and of the goods or services covered. Accordingly, a lesser degree of similarity between these 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; 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 19).

Relevant public

18. The probable perception of the opposing trade mark from the point of view of the relevant public plays a decisive role in the examination of the likelihood of confusion. In this case, according to the case-law of the Court of Justice, the reference consumer is a reasonably well‑informed and reasonably observant and circumspect average consumer of the relevant goods (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

19. The Opposition Division found that the relevant public consists of the public at large because the goods at issue are cheap products bought and consumed on a daily basis. The parties did not question this finding.

20. Also, in the Board’s view, the goods at issue in Classes 29 and 30 are directed at the public at large.

21. Therefore, the level of attention of the relevant public can be held to be average (19/09/2018, T-652/17, Eddy snack company, § 30 and 31).

22. Since the earlier right is an EUTM, the relevant territory is the European Union.

23. The Board will firstly consider the opposition on the basis of earlier mark No 15 240 039 ‘& More’ (figurative). This was the mark considered by the Opposition Division in the contested decision.

The opposition based on earlier mark ‘& More’ (figurative)

Comparison of the goods as regards Class 29

24. The contested goods in Class 29 (see paragraph 1) must be compared with the goods of the earlier mark in Class 29 (see paragraph 5, c)).

25. The applicant did not contest the findings made in the contested decision which must be confirmed. These findings are summarised hereunder.

26. ‘Jellies for food; jams; compotes; fish, not live; dairy products; edible oils; edible fats; potato snacks; roasted nuts; salted nuts; spiced nuts; dairy substitutes; eggs’ are identically contained in both lists of goods.

27. The contested ‘frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; dried fruit products; vegetables, dried; vegetables, cooked; raisins’ are included in the opponent’s processed fruits and vegetables (including nuts and pulses). Therefore, they are identical.

28. The contested ‘milk; yogurt’ are included in the opponent’s ‘dairy products’. Therefore, they are identical.

29. The contested ‘fat-containing mixtures for bread slices’ are included in the opponent’s ‘edible fats’. Therefore, they are identical.

30. The contested ‘dried nuts’ overlap with the opponent´s various sorts of nuts in Class 29. Therefore they are identical.

31. The opponent’s ‘meat-based snack foods’ have the same origin and methods of use and can be addressed to the same people and sold in the same places as the contested, broadly worded, ‘meats’, which are the main ingredient of these earlier goods. When an ingredient can be considered as being the main ingredient of the prepared dish, a similarity will exist (see 04/05/2011, T‑129/09, Apetito, EU:T:2011:193, where the Court confirms the finding of similarity between a particular foodstuff and prepared meals mainly consisting of that same foodstuff). Therefore, they are similar.

32. The opponent’s ‘soups’ can have the contested ‘meat extracts’ as their main ingredient. Accordingly, they can have a similar nature and the same purpose. Furthermore, they are often marketed and distributed by the same undertakings and placed on adjacent shelves for sale in shops. Consequently, these goods are considered similar.

33. The contested ‘poultry, not live; game, not live’ are similar to the opponent’s ‘fish’, since they are all of animal origin and, therefore, in competition with each other; they share the same method of use and target the same public.

Comparison of the goods as regards Class 30

34. The contested goods in Class 30 (see paragraph 1) must be compared with the goods of the earlier mark in Class 30 (see paragraph 5, c)).

35. The applicant did not contest the findings made in the contested decision which must be confirmed. These findings are summarised hereunder.

36. ‘Coffee; tea; cocoa; sugar; yeast; salt; sauces [condiments]; cookies; aperitif biscuits; cakes; chocolate’ are identically contained in both lists of goods.

37. The contested ‘ices’ and ‘ice’ are identically contained in both lists of goods.

38. The contested ‘rice; tapioca; sago; flour; cereal preparations; baking powder; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize’ are included in the opponent’s ‘processed grains, starches, and goods made thereof, baking preparations and yeasts’. Therefore, they are identical.

39. The contested ‘bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; rolled wafers [biscuits]; chocolate based products; chocolates; candy bars; bonbons made of sugar; sweetmeats [candy]; marzipan; popcorn; waffles’ are included in the opponent’s ‘baked goods, confectionery, chocolate and desserts’. Therefore, they are identical.

40. The contested ‘honey’ is included in the opponent’s ‘bee products’. Therefore, they are identical.

41. The contested ‘vinegar; spices’ are included in the opponent’s ‘seasonings, condiments’. Therefore, they are identical.

42. The contested ‘artificial coffee’ is similar to a high degree to the opponent´s ‘coffee’, since they have the same producers, method of use, distribution channels, and target the same relevant public. Moreover, they are in competition with each other.

43. The contested ‘mustard’ is highly similar to the opponent’s ‘seasonings’. These goods have the same purpose (flavouring), are in competition, have the same distribution channels and points of sale, can target the same consumers and are likely to come from the same kind of undertakings.

44. The contested ‘golden syrup’ is identical to the opponent’s ‘syrups and treacles’ in as much as they usually coincide in the relevant public, the distribution channels and are in competition.

Comparison of the contested goods with the earlier goods in Class 31

45. The contested goods in Classes 29 and 30 must be compared with the earlier goods in Class 31.

46. In the Board’s opinion, the contested goods have no, or at most a low degree of, similarity with the earlier goods in Class 31. The goods in Class 31 are non-processed products that do not target, contrary to goods in Classes 29 and 30, end consumers because they cannot be consumed directly.

47. It is noted that the opponent submitted no arguments, at the opposition or appeal stage, in support of the identity or similarity between the goods at issue.

Comparison of the marks

48. With respect to the comparison of the signs, the global appreciation of the likelihood of confusion must, as regards the visual, aural or conceptual similarity of the marks in question, be based on the overall impression created by them, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23; 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 25).

49. In general terms, two signs are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, aural and conceptual aspects (23/10/2002, T‑6/01, Matratzen, EU:T:2002:261, § 30; 22/06/2005, T-34/04, Turkish Power, EU:T:2005:248, § 43; 12/07/2006, T-97/05, Marcorossi, EU:T:2006:203, § 39).

50. For the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods for which the mark has been registered (03/09/2010, T-472/08, 61 a nossa alegria, EU:T:2010:347, § 47 and the case-law cited therein).

51. The signs to be compared are:

    Earlier mark	Contested sign

52. The earlier mark is a figurative mark consisting of the element ‘&’ placed over another element in which the letters ‘o’, ‘r’ and ‘e’ can easily be discerned. These letters are preceded by a design reminiscent of a fork shown vertically which, in the opponent’s view, represents the letter ‘M’ of the English word ‘More’. It is thus possible that consumers who have at least a basic familiarity with the English language will read the mark in the manner indicated by the opponent, ie ‘& More’. However, given the high stylisation of the letter ‘M’ and, in particular, the presence of the handle of the fork above it, it may not be ruled out that another significant portion of consumers in the EU, namely those who are totally unfamiliar with the English language, will not necessarily read the letter M (and, consequently, the whole word ‘More’) and will instead perceive the design as being just a fork, a trident or a fanciful device.

53. The contested sign is a figurative mark composed of the verbal element ‘KEKS’ and the element ‘&’ placed above the word ‘MORE’, all written in brown upper‑case letters. The verbal elements are set, in relatively small letters, against a large yellow rectangle with three green lines: one at the top, a smaller one in the middle, and one at the bottom.

54. As regards the element ‘& More’, common to both marks, the applicant argues that it belongs to basic English and thus has no distinctiveness. The opponent argues, on the contrary, that it is not understood in countries where English is not spoken. The Opposition Division considered that the element would not be understood in Spain and would have, in this territory, a normal degree of distinctiveness. In this respect, the Board disagrees with the Opposition Division and considers that, contrary to the opponent’s assertions, the expression ‘& More’ – for the part of the public who is able to discern the initial letter ‘M’ in the highly stylised representation of a fork (see paragraph 52) – will be known by the relevant public consisting of the public at large throughout the EU, including Spain, because it is composed of the symbol ‘&’ which is universally known to mean ‘and’ followed by the basic English word ‘More’. The element ‘& More’ will thus be understood by the relevant consumers as an indication that something additional is being offered and this concept is laudatory, i.e. not very distinctive, in relation to foodstuffs, as are the goods at issue. In a recent decision rendered by an examiner, in relation to the applicant’s word mark ‘KEKS & MORE’ (EUTM No 17 952 746), it was stated that ‘& More’ is commonly used in trade to indicate that the offer comprises goods beyond those which make up the core business of the company concerned. In the Board’s opinion, it is a well-known fact that symbols such as ‘&’ and English words such as ‘More’ belong to basic vocabulary, known by average consumers in the EU, and that they are widely used in trade, in the advertising of many goods and services, as the applicant has shown with examples. It is no coincidence that the opponent has registered that element in a figurative manner, knowing that a word version thereof would have inevitably met unsurmountable objections from the Office. Taking into account all of the foregoing, the Board finds that the verbal combination ‘& More’, to the extent that the relevant public (who is familiar with basic English words) can read the word ‘More’, should be considered to have a low level of distinctiveness overall.

55. The additional word element ‘KEKS’ of the contested sign will be understood as ‘biscuit’, ‘cake’ or ‘cookie’ in German, Bulgarian or Czech, as the Opposition Division stated but, contrary to the element ‘& More’, it is unlikely that the word ‘KEKS’ would be understood in other languages of the EU. It will be perceived by a significant portion of consumers in the EU as a purely fanciful term.

56. Visually, the signs only coincide in the lowly distinctive element ‘& More’ – as regards the part of the public who reads this expression – and differ in ‘KEKS’, and the figurative elements of both marks. It should be recalled that where a sign consists of both verbal and figurative elements, in principle the verbal component of the sign usually produces a greater impact on the consumer than the figurative component. This is due to the fact that the public does not usually analyse the signs and will more easily refer to the signs in question by their verbal element, rather than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37; 28/03/2017, T-538/15, REGENT UNIVERSITY, EU:T:2017:226, § 51; 19/12/2011, R 233/2011-4, Best Tone, (fig.) / BETSTONE § 24; 13/12/2011, R 53/2011-5, Jumbo (fig.) / Device of an elephant (fig.), § 59). On account of the dissimilarity in the element KEKS, which appears at the beginning of the contested mark, to which more attention is paid, taking into account the reduced distinctiveness of the common element ‘& More’, and noting that the figurative elements of the contested sign (a yellow and green rectangle) are visually attractive and have no counterpart whatsoever in the earlier mark (representing a fork), visually the trade marks are dissimilar. The trade marks are even more dissimilar for the public that sees, in the earlier mark, a fork without reading it, due to its stylisation, as the initial letter M of the word ‘More’.

57. Aurally, the pronunciation of the signs coincides, for the part of the public who reads the earlier mark as ‘More’, in the sound of the term ‘& More’ and differs in the sound of the word ‘KEKS’. In light of the fact that ‘KEKS’ appears at the beginning of the contested mark, moreover in large letters, the marks are considered aurally similar to a low degree. The marks are dissimilar for the part of the public who does not read the English word ‘More’ in the earlier mark.

58. Conceptually, the impact of the meaningful elements ‘&’ and ‘More’, respectively, is limited, taking into account the distinctiveness issues referred to above, which apply to the portion of public who have a sufficient familiarity with the English language to read the fork as the initial letter M of the word ‘More’. For the rest of the public who merely sees, in the earlier mark, a fork (not the letter ‘M’), the latter, which is totally absent from the contested mark represents a conceptual difference. The word ‘KEKS’, on the other hand, will be understood in some Member States but not in others. Therefore, this word will make the marks conceptually dissimilar for part of the public (German, Bulgarian and Czech) whereas the conceptual comparison remains neutral for the rest of the public.

Global assessment

59. The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, inter alia, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (12/06/2007, C‑334/05 P, Limoncello, EU:C:2007:333, § 35 and the case-law cited).

60. Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (12/06/2007, C‑334/05 P, Limoncello, EU:C:2007:333, § 41 and the case-law cited).

61. The importance of the visual and aural aspects of similarity is not always the same in an overall assessment. It depends on the nature of the goods at issue.

62. As regards the goods in Classes 29 and 30 which are usually sold in self-service stores, the elements of visual similarity and dissimilarity between the signs at issue are of greater importance than the elements of aural and conceptual similarity and dissimilarity between those signs (11/12/2014, T‑480/12, MASTER, EU:T:2014:1062, § 69; 15/04/2010, T-488/07, Egléfruit, EU:T:2010:145). That is why, contrary to the opponent’s allegations, the graphic features of the signs will not have a lesser weight in the consumer’s perception. The figurative and graphic elements of the earlier mark, which are the only elements which give it some distinctive character, and the vivid contrasting colours and shapes of the contested sign will contribute to strikingly separate the overall impressions created by the signs in the consumer’s mind, whether he/she belongs to the part of the public who recognises the word ‘More’ in the earlier sign or not.

63. In consequence thereof, despite some of the goods being identical and an average degree of attention being displayed for the goods, a likelihood of confusion can be safely discarded since the signs at issue convey sufficiently separated impressions for the relevant public.

64. The Board will now consider the likelihood of confusion with respect to the remaining marks: ‘Oils & More’, ‘Olives & More’, ‘Paté & More’, ‘Sweet & More’, ‘Tasty & More’, ‘Salt & More’, ‘Sauce & More’, ‘Cook & More’ and ‘Trade & More’.

The opposition based on the earlier mark ‘Oils & More’ (figurative)

65. The findings made, in respect of the mark ‘& More’, about the relevant public and the relevant territory apply to this mark.

66. The goods ‘edible oils, edible fats’ and ‘fat-containing mixtures for bread slices’ in Class 29 covered by the contested mark are, respectively, identical and similar to ‘edible oils and fats’ covered by the earlier mark. The rest of the goods in Class 29 of the contested mark are dissimilar to those of the earlier mark in the same class or in Class 30.

67. The goods ‘vinegar; sauces’ and ‘salt, mustard, spices’ in Class 30 of the contested mark are, respectively, identical and similar to the goods ‘vinegar, sauces and seasonings’ covered by the earlier mark. The rest of the goods in Class 30 of the contested mark are not similar to any of the goods covered in the same class or in Class 29 by the earlier mark.

68. None of the goods in Classes 29 and 30 of the contested mark, which are all processed foodstuffs, are similar to the goods ‘agricultural and forestry products’ in Class 31 of the earlier mark: the latter goods are raw products that are not ready for consumption and require processing by food industries. The Board notes, in this regard, that the opponent did not even compare the goods in Class 31 of the earlier mark in question with those of the applicant.

69. The opposition based on the earlier mark at issue must accordingly be dismissed, due to the lack of identity or similarity of the conflicting goods, as regards the following goods of the contested application:

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; jellies for food; jams; compotes; eggs; milk; dairy products; potato snacks; raisins; dried nuts; roasted nuts; salted nuts; spiced nuts; dried fruit products; yogurt; dairy products and dairy substitutes;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour; cereal preparations; bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn; waffles.

70. As regards the goods ‘edible oils; edible fats; fat-containing mixtures for bread slices; vinegar; sauces [condiments]; spices; salt; mustard’ of the contested application which are identical or similar to the goods of the earlier mark, the likelihood of confusion must be ruled out because, for the reasons hereunder, the marks are dissimilar.

71. Since the earlier mark is, in substance, the same ‘& More’ mark (which has been previously analysed) plus the English word ‘Oils’, all the findings made as regards the comparison of that mark are applicable to the mark under review. The addition of the word ‘Oils’, moreover written prominently, further increases the dissimilarity with the contested mark, visually, aurally and, as regards the part of the public who understands the words ‘KEKS’ and ‘OILS’, also conceptually.

72. The global assessment of likelihood of confusion made in respect of the opponent’s figurative mark ‘& More’ is also applicable to the mark under review and even more so, in view of the additional difference represented by the word ‘Oils’.

73. The conclusion is that there will be no likelihood of confusion between the contested mark and the opponent’s mark under review, even for the above-mentioned identical and similar goods.

The opposition based on the earlier mark ‘Olives & More’ (figurative)

74. The findings made, in respect of the mark ‘& More’, about the relevant public and the relevant territory apply to this mark.

75. The goods ‘edible oils, edible fats’ and ‘fat-containing mixtures for bread slices’ in Class 29 covered by the contested mark are, respectively, identical and similar to ‘edible oils and fats’ covered by the earlier mark. The rest of the goods in Class 29 of the contested mark are dissimilar to those of the earlier mark in the same class and in Class 30 .

76. The goods ‘vinegar; sauces’ and ‘salt, mustard, spices’ in Class 30 of the contested mark are, respectively, identical and similar to the goods ‘vinegar, sauces and seasonings’ covered by the earlier mark. The rest of the goods in Class 30 of the contested mark are not similar to any of the goods covered in the same class or in Class 29 by the earlier mark.

77. None of the goods in Classes 29 and 30 of the contested mark, which are all processed foodstuffs, are similar to the goods ‘agricultural and forestry products’ in Class 31 of the earlier mark: the latter goods are raw products that are not ready for consumption and require processing by food industries. The Board notes, in this regard, that the opponent did not even compare the goods in Class 31 of the earlier mark in question with those of the applicant.

78. The opposition based on the earlier mark at issue must accordingly be dismissed, due to the lack of identity or similarity of the conflicting goods, as regards the following goods of the contested application:

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; jellies for food; jams; compotes; eggs; milk; dairy products; potato snacks; raisins; dried nuts; roasted nuts; salted nuts; spiced nuts; dried fruit products; yogurt; dairy products and dairy substitutes;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour; cereal preparations; bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn; waffles.

79. As regards the goods ‘edible oils; edible fats; fat-containing mixtures for bread slices; vinegar; sauces [condiments]; spices; salt; mustard’ of the contested application which are identical or similar to the goods of the earlier mark, the likelihood of confusion must be ruled out because, for the reasons hereunder, the marks are dissimilar.

80. Since the earlier mark is, in substance, the same ‘& More’ mark (which has been previously analysed) plus the English word ‘Olives’, all the findings made as regards the comparison of that mark are applicable to the mark under review. The addition of the word ‘Olives’, moreover written prominently, further increases the dissimilarity with the contested mark, visually, aurally and, as regards the part of the public who understands the words ‘KEKS’ and ‘OLIVES’, also conceptually.

81. The global assessment of likelihood of confusion made in respect of the opponent’s figurative mark ‘& More’ is also applicable to the mark under review and even more so, in view of the additional difference represented by the word ‘Olives’.

82. The conclusion is that there will be no likelihood of confusion between the contested mark and the opponent’s mark under review, even for the above-mentioned identical and similar goods.

The opposition based on the earlier mark ‘Paté & More’ (figurative)

83. The findings made, in respect of the mark ‘& More’, about the relevant public and the relevant territory apply to this mark.

84. The goods ‘edible oils, edible fats’ and ‘fat-containing mixtures for bread slices’ in Class 29 covered by the contested mark are, respectively, identical and similar to ‘edible oils and fats’ covered by the earlier mark. The rest of the goods in Class 29 of the contested mark are dissimilar to those of the earlier mark in the same class and in Class30.

85. The goods ‘vinegar; sauces’ and ‘salt, mustard, spices’ in Class 30 of the contested mark are, respectively, identical and similar to the goods ‘vinegar, sauces and seasonings’ covered by the earlier mark. The rest of the goods in Class 30 of the contested mark are not similar to any of the goods covered in the same class or in Class 29 by the earlier mark.

86. None of the goods in Classes 29 and 30 of the contested mark, which are all processed foodstuffs, are similar to the goods ‘agricultural and forestry products’ in Class 31 of the earlier mark: the latter goods are raw products that are not ready for consumption and require processing by food industries. The Board notes, in this regard, that the opponent did not even compare the goods in Class 31 of the earlier mark in question with those of the applicant.

87. The opposition based on the earlier mark at issue must accordingly be dismissed, due to the lack of identity or similarity of the conflicting goods, as regards the following goods of the contested application:

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; jellies for food; jams; compotes; eggs; milk; dairy products; potato snacks; raisins; dried nuts; roasted nuts; salted nuts; spiced nuts; dried fruit products; yogurt; dairy products and dairy substitutes;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour; cereal preparations; bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn; waffles.

88. As regards the goods ‘edible oils; edible fats; fat-containing mixtures for bread slices; vinegar; sauces [condiments]; spices; salt; mustard’ of the contested application which are identical or similar to the goods of the earlier mark, the likelihood of confusion must be ruled out because, for the reasons hereunder, the marks are dissimilar.

89. Since the earlier mark is, in substance, the same ‘& More’ mark (which has been previously analysed) plus the English/French word ‘Paté’, all the findings made as regards the comparison of that mark are applicable to the mark under review. The addition of the word ‘Paté’, moreover written prominently, further increases the dissimilarity with the contested mark, visually, aurally and, as regards the part of the public who understands the words ‘KEKS’ and ‘PATÉ’, also conceptually.

90. The global assessment of likelihood of confusion made in respect of the opponent’s figurative mark ‘& More’ is also applicable to the mark under review and even more so, in view of the additional difference represented by the word ‘Paté’.

91. The conclusion is that there will be no likelihood of confusion between the contested mark and the opponent’s mark under review, even for the above-mentioned identical and similar goods.

The opposition based on the earlier mark ‘Sweet & More’ (figurative)

92. The findings made, in respect of the mark ‘& More’, about the relevant public and the relevant territory apply to this mark.

93. The goods ‘edible oils, edible fats’ and ‘fat-containing mixtures for bread slices’ in Class 29 covered by the contested mark are, respectively, identical and similar to ‘edible oils and fats’ covered by the earlier mark. The rest of the goods in Class 29 of the contested mark are dissimilar to those of the earlier mark in the same class and in Class 30.

94. The goods ‘vinegar; sauces’ and ‘salt, mustard, spices’ in Class 30 of the contested mark are, respectively, identical and similar to the goods ‘vinegar, sauces and condiments’ covered by the earlier mark. The rest of the goods in Class 30 of the contested mark are not similar to any of the goods covered in the same class or in Class 29 by the earlier mark.

95. None of the goods in Classes 29 and 30 of the contested mark, which are all processed foodstuffs, are similar to the goods ‘agricultural and forestry products’ in Class 31 of the earlier mark: the latter goods are raw products that are not ready for consumption and require processing by food industries. The Board notes, in this regard, that the opponent did not even compare the goods in Class 31 of the earlier mark in question with those of the applicant.

96. The opposition based on the earlier mark at issue must accordingly be dismissed, due to the lack of identity or similarity of the conflicting goods, as regards the following contested goods:

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; jellies for food; jams; compotes; eggs; milk; dairy products; potato snacks; raisins; dried nuts; roasted nuts; salted nuts; spiced nuts; dried fruit products; yogurt; dairy products and dairy substitutes;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour; cereal preparations; bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn; waffles.

97. As regards the goods ‘edible oils; edible fats; fat-containing mixtures for bread slices; vinegar; sauces [condiments]; spices; salt; mustard’ of the contested application which are identical or similar to the goods of the earlier mark, the likelihood of confusion must be ruled out because, for the reasons hereunder, the marks are globally dissimilar.

98. Since the earlier mark is, in substance, the same ‘& More’ mark (which has been previously analysed) plus the English word ‘Sweet’, all the findings made as regards the comparison of that mark are applicable to the mark under review. The addition of the word ‘Sweet’, moreover written prominently, further increases the dissimilarity with the contested mark, visually, aurally and, as regards the part of the public who understands the words ‘KEKS’ and ‘SWEET’, also conceptually.

99. The global assessment of likelihood of confusion made in respect of the opponent’s figurative mark ‘& More’ is also applicable to the mark under review and even more so, in view of the additional difference represented by the word ‘Sweet’.

100. The conclusion is that there will be no likelihood of confusion between the contested mark and the opponent’s mark under review, even for the above-mentioned identical and similar goods.

The opposition based on the earlier mark ‘tasty & More’ (figurative)

101. The findings made, in respect of the mark ‘& More’, about the relevant public and the relevant territory apply to this mark.

102. The goods ‘edible oils, edible fats’ and ‘fat-containing mixtures for bread slices’ in Class 29 covered by the contested mark are, respectively, identical and similar to ‘edible oils and fats’ covered by the earlier mark. The rest of the goods in Class 29 of the contested mark are dissimilar to those of the earlier mark in the same class and in Class 30.

103. The goods ‘vinegar; sauces’ and ‘salt, mustard, spices’ in Class 30 of the contested mark are, respectively, identical and similar to the goods ‘vinegar, sauces and seasonings’ covered by the earlier mark. The rest of the goods in Class 30 of the contested mark are not similar to any of the goods covered in the same class or in Class 29 by the earlier mark.

104. None of the goods in Classes 29 and 30 of the contested mark, which are all processed foodstuffs, are similar to the goods ‘agricultural and forestry products’ in Class 31 of the earlier mark: the latter goods are raw products that are not ready for consumption and require processing by food industries. The Board notes, in this regard, that the opponent did not even compare the goods in Class 31 of the earlier mark in question with those of the applicant.

105. The opposition based on the earlier mark at issue must accordingly be dismissed, due to the lack of identity or similarity of the conflicting goods, as regards the following goods of the contested application:

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; jellies for food; jams; compotes; eggs; milk; dairy products; potato snacks; raisins; dried nuts; roasted nuts; salted nuts; spiced nuts; dried fruit products; yogurt; dairy products and dairy substitutes;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour; cereal preparations; bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn; waffles.

106. As regards the goods ‘edible oils; edible fats; fat-containing mixtures for bread slices; vinegar; sauces [condiments]; spices; salt; mustard’ of the contested application which are identical or similar to the goods of the earlier mark, the likelihood of confusion must be ruled out because, for the reasons hereunder, the marks are globally dissimilar.

107. Since the earlier mark is, in substance, the same ‘& More’ mark (which has been previously analysed) plus the English word ‘tasty’, all the findings made as regards the comparison of that mark are applicable to the mark under review. The addition of the word ‘tasty’, moreover written prominently, further increases the dissimilarity with the contested mark, visually, aurally and, as regards the part of the public who understands the words ‘KEKS’ and ‘TASTY’, also conceptually.

108. The global assessment of likelihood of confusion made in respect of the opponent’s figurative mark ‘& More’ is also applicable to the mark under review and even more so, in view of the additional difference represented by the word ‘tasty’.

109. The conclusion is that there will be no likelihood of confusion between the contested mark and the opponent’s mark under review, even for the above-mentioned identical and similar goods.

The opposition based on the earlier mark ‘salt & More’ (figurative)

110. The findings made, in respect of the mark ‘& More’, about the relevant public and the relevant territory apply to this mark.

111. The goods in Class 29 covered by the contested mark being foodstuffs such as oils, fats, processed fruits and vegetables, dairy products and substitutes, various sorts of nuts and are partly identical and partly highly similar to the goods covered by the earlier mark.

112. The goods ‘edible oils, edible fats’ and ‘fat-containing mixtures for bread slices’ in Class 29 covered by the contested mark are, respectively, identical and similar to ‘edible oils and fats’ covered by the earlier mark.

113. The goods ‘vinegar; sauces, salt, mustard, spices’ in Class 30 of the contested mark are identical to the goods covered by the earlier mark in the same class. The rest of the goods in Class 30 of the contested mark are not similar to any of the goods covered in the same class or in Class 29 by the earlier mark.

114. The goods ‘frozen fruits, preserved fruits, dried fruit, stewed fruit, frozen vegetables, dried vegetables, raisins, dried nuts, roasted nuts, salted nuts, dried fruit products, preserved vegetables, cooked vegetables, spiced nuts’ in Class 29 of the contested mark are similar to the goods ‘fresh fruits, nuts, vegetables’ in Class 31 of the earlier mark: the latter goods are raw products that may be purchased for consumption and may thus satisfy the same needs as the applicant’s mentioned products. The rest of the contested goods in Classes 29 and 30 are not similar to the opponent’s goods in Class 31.

115. The opposition based on the earlier mark at issue must accordingly be dismissed, due to the lack of identity or similarity of the conflicting goods, as regards the following goods of the contested application:

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; jellies for food; jams; compotes; eggs; milk; dairy products; potato snacks; yogurt; dairy products and dairy substitutes;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour; cereal preparations; bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn; waffles.

116. As regards the goods ‘edible oils; edible fats; fat-containing mixtures for bread slices; vinegar; sauces [condiments]; spices; salt; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; raisins; dried nuts; roasted nuts; salted nuts; spiced nuts; dried fruit products; mustard’ of the contested application which are identical or similar to the goods of the earlier mark, the likelihood of confusion must be ruled out because, for the reasons hereunder, the marks are globally dissimilar.

117. Since the earlier mark is, in substance, the same ‘& More’ mark (which has been previously analysed) plus the English word ‘salt’, all the findings made as regards the comparison of that mark are applicable to the mark under review. The addition of the word ‘salt’, moreover written prominently, further increases the dissimilarity with the contested mark, visually, aurally and, as regards the part of the public who understands the words ‘KEKS’ and ‘SALT’, also conceptually.

118. The global assessment of likelihood of confusion made in respect of the opponent’s figurative mark ‘& More’ is also applicable to the mark under review and even more so, in view of the additional difference represented by the word ‘salt’.

119. The conclusion is that there will be no likelihood of confusion between the contested mark and the opponent’s mark under review, even for the above-mentioned identical and similar goods.

The opposition based on the earlier mark ‘Sauce & More’ (figurative)

120. The findings made, in respect of the mark ‘& More’, about the relevant public and the relevant territory apply to this mark.

121. The goods ‘edible oils, edible fats’ and ‘fat-containing mixtures for bread slices’ in Class 29 covered by the contested mark are, respectively, identical and similar to ‘edible oils and fats’ covered by the earlier mark. The rest of the goods in Class 29 of the contested mark are dissimilar to those of the earlier mark in the same class or in Class 30.

122. The goods ‘vinegar; sauces’ and ‘salt, mustard, spices’ in Class 30 of the contested mark are, respectively, identical and similar to the goods ‘vinegar, sauces and seasonings’ covered by the earlier mark. The rest of the goods in Class 30 of the contested mark are not similar to any of the goods covered in the same class or in Class 29 by the earlier mark.

123. None of the goods in Classes 29 and 30 of the contested mark, which are all processed foodstuffs, are similar to the goods ‘agricultural and forestry products’ in Class 31 of the earlier mark: the latter goods are raw products that are not ready for consumption and require processing by food industries. The Board notes, in this regard, that the opponent did not even compare the goods in Class 31 of the earlier mark in question with those of the applicant.

124. The opposition based on the earlier mark at issue must accordingly be dismissed, due to the lack of identity or similarity of the conflicting goods, as regards the following goods of the contested application:

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; jellies for food; jams; compotes; eggs; milk; dairy products; potato snacks; raisins; dried nuts; roasted nuts; salted nuts; spiced nuts; dried fruit products; yogurt; dairy products and dairy substitutes;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour; cereal preparations; bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn; waffles.

125. As regards the goods ‘edible oils; edible fats; fat-containing mixtures for bread slices; vinegar; sauces [condiments]; spices; salt; mustard’ of the contested application which are identical or similar to the goods of the earlier mark, the likelihood of confusion must be ruled out because, for the reasons hereunder, the marks are globally dissimilar.

126. Since the earlier mark is, in substance, the same ‘& More’ mark (which has been previously analysed) plus the English word ‘Sauce’, all the findings made as regards the comparison of that mark are applicable to the mark under review. The addition of the word ‘sauce’, moreover written prominently, further increases the dissimilarity with the contested mark, visually, aurally and, as regards the part of the public who understands the words ‘KEKS’ and ‘SAUCE’, also conceptually.

127. The global assessment of likelihood of confusion made in respect of the opponent’s figurative mark ‘& More’ is also applicable to the mark under review and even more so, in view of the additional difference represented by the word ‘sauce’.

128. The conclusion is that there will be no likelihood of confusion between the contested mark and the opponent’s mark under review, even for the above-mentioned identical and similar goods.

The opposition based on the earlier mark ‘Cook & More’ (figurative)

129. The findings made, in respect of the mark ‘& More’, about the relevant public and the relevant territory apply to this mark.

130. The goods ‘edible oils, edible fats’ and ‘fat-containing mixtures for bread slices’ in Class 29 covered by the contested mark are, respectively, identical and similar to ‘edible oils and fats’ covered by the earlier mark. The rest of the goods in Class 29 of the contested mark are dissimilar to those of the earlier mark in the same class or in Class 30.

131. The goods ‘vinegar; sauces’ and ‘salt, mustard, spices’ in Class 30 of the contested mark are, respectively, identical and similar to the goods ‘vinegar, sauces and seasonings’ covered by the earlier mark. The rest of the goods in Class 30 of the contested mark are not similar to any of the goods covered in the same class or in Class 29 by the earlier mark.

132. None of the goods in Classes 29 and 30 of the contested mark, which are all processed foodstuffs, are similar to the goods ‘agricultural and forestry products’ in Class 31 of the earlier mark: the latter goods are raw products that are not ready for consumption and require processing by food industries. The Board notes, in this regard, that the opponent did not even compare the goods in Class 31 of the earlier mark in question with those of the applicant.

133. None of the goods in Classes 29 and 30 of the contested mark, which are all processed foodstuffs, are similar to the goods ‘Household or kitchen utensils and containers’ in Class 21 of the earlier mark. The Board notes, in this regard, that the opponent did not even compare the goods in Class 21 of the earlier mark in question with those of the applicant.

134. The opposition based on the earlier mark at issue must accordingly be dismissed, due to the lack of identity or similarity of the conflicting goods, as regards the following goods of the contested application:

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; jellies for food; jams; compotes; eggs; milk; dairy products; potato snacks; raisins; dried nuts; roasted nuts; salted nuts; spiced nuts; dried fruit products; yogurt; dairy products and dairy substitutes;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; flour; cereal preparations; bread; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn; waffles.

135. As regards the goods ‘edible oils; edible fats; fat-containing mixtures for bread slices; vinegar; sauces [condiments]; spices; salt; mustard’ of the contested application which are identical or similar to the goods of the earlier mark, the likelihood of confusion must be ruled out because, for the reasons hereunder, the marks are globally dissimilar.

136. Since the earlier mark is, in substance, the same ‘& More’ mark (which has been previously analysed) plus the English word ‘Cook’, all the findings made as regards the comparison of that mark are applicable to the mark under review. The addition of the word ‘cook’, moreover written prominently, further increases the dissimilarity with the contested mark, visually, aurally and, as regards the part of the public who understands the words ‘KEKS’ and ‘COOK’, also conceptually.

137. The global assessment of likelihood of confusion made in respect of the opponent’s figurative mark ‘& More’ is also applicable to the mark under review and even more so, in view of the additional difference represented by the word ‘cook’.

138. The conclusion is that there will be no likelihood of confusion between the contested mark and the opponent’s mark under review, even for the above-mentioned identical and similar goods.

The opposition based on the earlier mark ‘trade & More’ (figurative)

139. The findings made, in respect of the mark ‘& More’, about the relevant public and the relevant territory apply to this mark.

140. The goods ‘edible oils, edible fats’ and ‘fat-containing mixtures for bread slices’ and ‘frozen fruit, preserved fruit, dried fruit, stewed fruit, raisins,, dried fruit products, frozen vegetable, preserved vegetables, dried vegetables, cooked vegetables’ and ‘milk, dairy products, yogurt, dairy products and dairy substitutes’ in Class 29 covered by the contested mark are, respectively, identical and similar to ‘edible oils and fats’ and ‘preserved, dried fruits and vegetables’ and ‘milk and milk products’ covered by the earlier mark. The rest of the goods in Class 29 of the contested mark are dissimilar to those of the earlier mark in the same class and in Class 30.

141. The goods ‘vinegar; sauces’ and ‘salt, mustard, spices’ and ‘flour, cereal preparations, bread, extruded food products made of wheat, made of rice and made of maize, popcorn’ in Class 30 of the contested mark are identical to the goods ‘vinegar, salt, spices’ and ‘flour and preparations made from cereals’ covered by the earlier mark. The rest of the goods in Class 30 of the contested mark are not similar to any of the goods covered in the same class or in Class 29 by the earlier mark.

142. None of the goods in Classes 29 and 30 of the contested mark, which are all processed foodstuffs, are similar to the goods ‘agricultural and forestry products’ in Class 31 of the earlier mark: the latter goods are raw products that are not ready for consumption and require processing by food industries. The Board notes, in this regard, that the opponent did not even compare the goods in Class 31 of the earlier mark in question with those of the applicant.

143. The opposition based on the earlier mark at issue must accordingly be dismissed, due to the lack of identity or similarity of the conflicting goods, as regards the following goods of the contested application:

Class 29 - Meats; fish, not live; poultry, not live; game, not live; meat extracts; jellies for food; jams; compotes; eggs; potato snacks; dried nuts; roasted nuts; salted nuts; spiced nuts;

Class 30 - Coffee; tea; cocoa; sugar; rice; tapioca; sago; artificial coffee; pastries; chocolate confectionery containing pralines; snack foods consisting principally of confectionery; chocolate for confectionery and bread; non-medicated confectionery in jelly form; chocolate candies; flour confectionery; prepared desserts [confectionery]; confectionery items coated with chocolate; candy coated confections; truffles [confectionery]; ices; honey; golden syrup; yeast; baking powder; ice; cookies; aperitif biscuits; rolled wafers [biscuits]; cakes; chocolate; chocolate based products; candy bars; chocolates; bonbons made of sugar; sweetmeats [candy]; marzipan; waffles.

144. As regards the goods ‘edible oils; edible fats; fat-containing mixtures for bread slices; frozen fruits; fruit, preserved; dried fruit; fruit, stewed; frozen vegetables; preserved vegetables; vegetables, dried; vegetables, cooked; milk; dairy products; raisins; dried fruit products; yogurt; dairy products and dairy substitutes’ in Class 29 and ‘vinegar; sauces [condiments]; spices; salt; mustard, flour; cereal preparations; bread; extruded food products made of wheat; extruded food products made of rice; extruded food products made of maize; popcorn’ in Class 30 of the contested application which are identical to the goods of the earlier mark, the likelihood of confusion must be ruled out because, for the reasons hereunder, the marks are dissimilar.

145. The earlier mark is a figurative mark in blue and grey which contains the English words ‘trade’ and ‘more’ and, in addition, a device that could be perceived as a heavily stylised ampersand ‘&’. The visual impression produced by the contested mark is dominated by the figurative elements, namely the yellow rectangle with green lines and the word element ‘KEKS & More’. The only factor of similarity is represented by the term ‘more’ but is outweighed by the differences concerning the rest of the word elements, namely the terms ‘KEKS’ and ‘TRADE’, which do not have anything in common, and the figurative and colour features of the marks. The marks must thus be considered, globally, as dissimilar from a visual point of view.

146. The aural comparison of the marks results in a low degree of similarity, due to the common presence of the expression ‘& MORE’ and the different sound of the words ‘KEKS’ and ‘TRADE’.

147. Conceptually, the marks share the meaning of ‘MORE’ as regards the part of the public who has an understanding of the English language and for that public the term has a low distinctiveness, but the rest of the elements are unlikely to be understood by the same consumers because they belong to different languages (‘KEKS’ belongs to Czech and German whereas ‘TRADE’ belongs to English). The marks are accordingly similar to a low degree due to the non‑distinctive meaning of the word ‘MORE’ or ‘& MORE’.

148. The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, inter alia, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (12/06/2007, C‑334/05 P, Limoncello, EU:C:2007:333, § 35 and the case-law cited).

149. Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (12/06/2007, C‑334/05 P, Limoncello, EU:C:2007:333, § 41 and the case-law cited).

150. Moreover, the importance of the visual and aural aspects of similarity is not always the same in an overall assessment. It depends on the nature of the goods at issue.

151. As regards the goods in Classes 29 and 30 which are usually sold in self-service stores, the elements of visual similarity and dissimilarity between the signs at issue are of greater importance than the elements of aural and conceptual similarity and dissimilarity between those signs (11/12/2014, T-480/12, MASTER, EU:T:2014:1062, § 69; 15/04/2010, T-488/07, Egléfruit, EU:T:2010:145). That is why, contrary to the opponent’s allegations, the graphic features of the signs will not have a lesser weight in the consumer’s perception. The figurative and graphic elements of the earlier mark, which contribute to its distinctive character, and the vivid contrasting colours and shapes of the contested sign will generate strikingly different overall impressions in the consumer’s mind.

152. In consequence thereof, despite the goods being identical and an average degree of attention being displayed for the goods, a likelihood of confusion can be safely discarded since the signs at issue convey sufficiently separated impressions for the relevant public.

153. As regards the opponent’s argument that it owns a family of marks whose common element is ‘& More’, the Board notes that the opponent failed to adequately prove use of that family of marks (25/11/2014, T‑303/06 RENV & T‑337/06 RENV, Uniweb, § 58 and the case-law cited therein). The opponent merely attached six screenshots concerning its attendance, under its trade name, at two food exhibitions and its sponsorship of the Spanish team at the 2017 Special Olympics World Winter Games (see pages 58 to 64 of its letter dated 18 August 2017). The exhibitions target professionals rather than the public targeted by the goods at issue. No evidence at all of sales of the trade marked products in the marketplace, in such a manner that end-consumers targeted could be aware of the family of marks, has been submitted.

154. For the above reasons, the appeal must be upheld and the opposition entered against the contested goods must be dismissed.

Costs

155. Pursuant to Article 109(1) EUTMR and Article 18 EUTMIR, the opponent, as the losing party, must bear the applicant’s costs of the opposition and appeal proceedings.

156. These consist of the applicant’s costs of professional representation of EUR 300 in the opposition proceedings and EUR 550 in the appeal proceedings as well as the appeal fee of EUR 720.

Order

On those grounds,

THE BOARD

hereby:

1. Annuls the contested decision;

2. Dismisses the opposition entered against the EUTM application for the contested goods;

3. Orders the opponent to bear the applicant’s costs of EUR 1 570.

Signed Th. M. Margellos

Signed C. Rusconi

Signed Ph. von Kapff

Registrar: Signed H. Dijkema