OPPOSITION No B 3 002 816

Distriborg Groupe (Société anonyme), 217, chemin du Grand Revoyet, 69230 Saint Genis Laval, France (opponent), represented by Novagraaf Nederland B.V., Hoogoorddreef 5, 1101 BA Amsterdam, Netherlands (professional representative)

a g a i n s t

Campo Verde, Bei der Mühle 1, 88699 Frickingen, Germany (applicant), represented by Hentschke & Blükle, Kirchstr. 11, 74336 Brackenheim, Germany (professional representative).

On 12/11/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 002 816 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 16 776 411 for the figurative mark . The opposition is based on, inter alia, French trade mark registration No 3 600 820 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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s French trade mark registration No 3 600 820 for the figurative mark , since this one is the most similar one to the contested sign and has the broadest scope of protection with respect to the goods on which it is based.

1. The goods

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

Class 3: Preparations for bleaching and other substances for washing; preparations for cleaning, polishing, degreasing and abrading; soap; perfumery, essential oils, cosmetic, hair lotions; dentifrices.

Class 5: Pharmaceutical preparations and veterinary; hygienic products for medicine; dietetic substances for medical use, food for babies; plasters, material for dressings; teeth filling material and for dental impressions; disinfectant; pesticides; fungicides, herbicides.

Class 29: Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams; eggs, milk and milk products; oils and edible fats; salad dressings; preserves, all aforesaid products, including as supplements food and dietetic preparations not for medical purposes containing products entering in this class, namely meat, fish, poultry and game, meat extracts, fruit and preserved vegetables, dried and cooked, jellies, jams, fruit sauces, eggs, milk and dairy products.

Class 30: Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flours and cereal preparations, bread, pastries and confectionery, edible ices; honey, treacle; yeast, baking-powder; salt mustard; vinegar, sauces (except salad dressings); spices; ice for refreshment, all aforesaid products, including as supplements food and dietetic preparations not for medical purposes containing products entering in this class, namely coffee, tea, cocoa, sugar, rice, tapioca, sago, coffee substitutes, flours and cereal preparations, bread, pastries and confectionery, edible ices, honey, treacle, yeast, baking powders, salt, mustard, vinegar, sauces (condiments), spices, ice for refreshment.

Class 31: Agricultural produce, horticultural and forestry neither prepared, neither transformed; kernels (seeds) not included in other classes; living animals; fruits and fresh vegetables; grains, plants and natural flowers; foodstuffs for animals, malt, all aforesaid products, including as supplements food and dietetic preparations not for medical purposes containing products entering in this class, namely products agricultural, horticultural, forestry (neither prepared, neither transformed), seeds, fruit and fresh vegetables.

Class 32: Beer; mineral water and aerated and other non alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages, all aforesaid products including as dietetic preparations not for medical purposes.

Class 33: Alcoholic drinks (except beer).

The contested goods are the following:

Class 29: Tinned fruits and vegetables, pickled products; jams, fruit jellies, fruit puree; spreads, olives, meat and sausages, rennet; edible oils and fats; tofu; soups, preparation for making soups.

Class 30: Coffee, malt coffee; tea, cocoa, chocolate; sugar, rice, bonbons made of sugar; coffee substitutes; flour; pasta, in particular bread and biscuits; bakery and confectionery products; cereals, muesli, edible ices; honey; treacle, yeast; baking powder; salt, mustard, vinegar, sauces, potato flour for food; malt extract for food; soya flour; soya sauce, tomato ketchup, dried herbs.

Class 31: Animal feed, malt; malt extracts for consumption by animals; potato flour for animal foodstuffs, fresh fruits and vegetables, garden herbs, fresh, seeds.

Class 32: Beers; non-alcoholic drinks, fruit drinks and fruit juices; syrups and other preparations for making beverages.

Class 33: Alcoholic beverages, except beers, in particular wine and spirits.

Some of the contested goods in Classes 29, 30, 31, 32 and 33 are identical or similar to the goods in the same classes on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

2. Relevant public — degree of attention

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

In the present case, the goods assumed to be identical are directed at the public at large and at a more specialised public, such as farmers, regarding for instance malt extracts for consumption by animals; potato flour for animal foodstuffs; seeds. The degree of attention is considered to be average.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is France.

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

The earlier mark is a purely figurative mark. It consists of a stylised depiction of a branch with two leafs, on each side one, in green, which is placed in front of a circle in different shades, such as white, yellow, dark yellow and outlined in blue. The contested sign is a figurative mark. It consists of a grey rectangular frame inside of which appears a semi-circle or the letter ‘C’ and a branch with two leafs, on each side one, in white and grey.

In the earlier mark the figurative element in the form of a branch with two leafs, and also taking into account the relevant products, it will be either be associated with the freshness of the products, make reference to natural, organic products, to the products themselves (for example agricultural produce in Class 31) or that the products are produced in an ecological manner without harming the environment. The figurative element behind the leafs will be perceived as referring to the sun, because of its colour and also because the blue outline could be the sky. This device may be perceived as an indication that the relevant goods grow in a sunny climate, instead of in greenhouses, for example. Even though for some of the goods this connotation might not be that obvious, for example for coffee or for alcoholic drinks, the Opposition Division is of the opinion that when consumers are confronted with this element on the packaging of those products, they might still see it as referring to the products being fresh, organic, coming from a natural source or that they are ecologically produced. Both elements have, for all the aforementioned reasons, a weak inherent distinctiveness for the relevant goods.

Regarding the contested sign, the figurative element in the form of a branch with two leafs, for the goods at stake, will be perceived as referring to the same concept as in the earlier mark and it also has, for the same reasons, a limited distinctiveness. The letter ‘C’ or the semi-circle does not refer to anything in particular with respect to the relevant goods and is distinctive. Furthermore, as regards the contested sign, the figurative element in the form of a frame is not such an uncommon element and is more of a purely decorative nature. The public will not pay as much attention to this weak element either.

In all the marks, it is considered that the elements have more or less a comparable visual impact and that neither of the elements can be held clearly more dominant than the others.

Visually, the signs are similar to the extent that they both contain the device element in the form of a branch with two leafs. However, as explained above, this element has a weak distinctive character in relation to the goods, and there are also many differences between these figurative elements, for example in the different outline, depicted components and in the colours. Furthermore, the marks also differ in all of the remaining elements, such as the figurative element in the form of a sun in the earlier mark versus a semi-circle or the letter ‘C’ and the frame in the contested sign and in the entirely different colours that are used. Even though these elements have a limited impact due to their weak character or purely decorative nature, they are visually still clearly perceptible for the consumers.

Taking all the aforementioned into account and also the distinctiveness issues (especially the weak degree of distinctiveness of some elements, as mentioned before), the weak degree of distinctiveness of the coinciding elements for the goods, makes that the signs are visually similar to a very low degree.

Aurally, purely figurative signs, are not subject to a phonetic assessment. If in the contested sign, the device inside is perceived as being a semi-circle, both signs will be considered as purely figurative and it is not possible to compare them aurally. If, however, the letter ‘C’ is perceived, the contested sign will be pronounced as this letter, while the earlier mark can not be pronounced. In this case, the marks are not aurally similar.

Conceptually, although the coinciding figurative element in the form of a branch of leafs will evoke a concept, as this element is of a very limited distinctiveness, it can barely indicate any commercial origin. The attention of the relevant public will be attracted by the additional elements, one of which evokes the concept of a sun, however, this element is also weak. The contested sign will also be perceived as referring to the letter ‘C’ or a semi-circle. Taking all the aforementioned into account and also the distinctiveness issues, the weak degree of distinctiveness of the coinciding elements for the goods, makes that the signs are conceptually similar to a very low degree.

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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as low for all the goods in question, as explained in a more detailed way above.

5. Global assessment, other arguments and conclusion

The essential function of the trade mark is to guarantee the identity of the origin of the marked product for the consumer or end user by enabling him, without any likelihood of confusion, to distinguish a product or service from others which have another origin. For the trade mark to be able to fulfil its essential role in the system of undistorted competition which the EUTMR seeks to uphold, it must offer a guarantee that all the goods or services showing the mark have originated under the control of a

single undertaking which is responsible for their quality (29/09/1998, C 39/97, Canon,

EU:C:1998:442, § 28).

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

Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (Lloyd Schuhfabrik, § 20; Sabèl, § 24; 29/09/1998, C 39/97, Canon, EU:C:1998:442, § 17).

The goods at issue have been assumed to be identical, they are directed at the public at large and a more specialised public and the level of attention is average. The earlier mark has a low degree of distinctiveness for all the relevant goods.

The marks have been found visually and conceptually similar to a very low degree and phonetically it is either not possible to compare them or they are phonetically not similar.

Even taking into account the fact that both signs include a depiction of a branch with two leafs, the signs are depicted in such a different way, in particular with regard to the kind of representation of the branch with the different colours, as pointed out in a detailed way above, that the consumer would certainly not confuse them. In terms of the visual comparison, in particular, the signs show many differences. Taking into account the very low degree of visual similarity between the signs, the very low degree of conceptual similarity and in particular the low degree of distinctiveness of the earlier trade mark, the Opposition Division finds that, even assuming identical goods, there is no likelihood of confusion on the part of the public, even more taking into account that both marks contain some figurative elements, albeit weak, and colours that are not shared by the marks and these also play a role in differentiating between the signs.

Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

The opponent has also based its opposition on the following earlier trade marks:

• European Union trade mark registration No 14 037 105 for the figurative mark for goods in Classes 29, 30 and 32.

• French trade mark registration No 3 600 821 for the figurative mark for goods in Classes 3, 5, 29, 30, 31, 32 and 33.

The other earlier rights invoked by the opponent are less similar to the contested mark, since they also contain, inter alia, the verbal element ‘BJORG’, which is not present in the contested trade mark. Moreover, they cover the same (FR No 3 600 821) or a narrower scope (EU No 14 037 105) of the goods. Therefore, the outcome cannot be different with respect to goods for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods.

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

Saida CRABBE

Chantal VAN RIEL

Richard BIANCHI

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.