OPPOSITION No B 3 062 698

Lesaffre et Compagnie, 41, rue Etienne Marcel, 75001 Paris, France (opponent), represented by Cabinet Lavoix, 62, rue de Bonnel, 69448 Lyon Cédex 03, France (professional representative)

a g a i n s t

Flavori, Budasteenweg 26, 1830 Machelen, Belgium (applicant).

On 10/07/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 062 698 is upheld for all the contested goods.

2. European Union trade mark application No 17 632 613 is rejected for all the contested goods. It may proceed for the remaining goods.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 17 632 613 for the figurative mark namely against some of the goods in Class 30. The opposition is based on European trade mark registration No 16 475 791 for the word mark ‘FLAVORY’. The opponent invoked Article 8(1)(b), EUTMR.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs, and the relevant public.

1. The goods

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

Class 30: Yeast; baking powders; sour dough; ferments for pastes.

The contested goods are the following:

Class 30: Processed grains, starches, and goods made thereof, baking preparations and yeasts.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Yeasts are identically contained in both lists of goods (albeit in the earlier mark in singular).

The contested goods made thereof [processed grains and starches] include the opponent’s sour dough. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested baking preparations include, as a broader category, or overlap with, the opponent’s baking powders. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested starches are odourless, tasteless white substances occurring widely in plant tissue and obtained chiefly from cereals, potatoes and include goods such as potato wheat and wheat starch flour. These goods are similar to the opponent’s baking powder as they coincide in purpose as they they are used in the process of baking and often used in combination. They share the same distribution channels, in particular being sold in the same supermarket areas or specialised shops. They also target the same relevant public, namely people who bake and they usually coincide in producers and providers, namely companies that manufacture products for baking.

The contested processed grains include goods such as flour which target the same relevant public, coincide in the same distribution channels and usually coincide in providers as the opponent’s yeast. Therefore, the contested goods are considered similar to the opponent’s goods.

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 found to be identical or similar are directed at the public at large. The degree of attention is average.

3. The signs

FLAVORY
Earlier trade mark	Contested sign

The relevant territory is European Union.

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

The 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 verbal elements of the marks will be associated by part of the relevant public with the concept of ‘flavour’ in English or ‘flaveur’ in French. However, they are meaningless for another part of the relevant public, such as the Spanish-speaking part of the public, for which both elements are distinctive. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on this part of the public in the relevant territory.

The distinctive verbal element ‘FLAVORI’ of the contested sign is depicted in white, rather standard uppercase letters. The black figurative element and the red rectangular background of the contested sign will be seen merely as figurative elements made up of basic geometrical shapes. Their impact is reduced because the black triangle is a very simple geometric shape and the red background is mere decoration.

When signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37).

The contested sign has no element that could be considered clearly more dominant (visually eye-catching) than other elements.

Visually, the signs coincide in the letter string F-L-A-V-O-R-*. They differ in the final letter ‘Y’/’I’ of each of these verbal elements and in the additional figurative elements described above of the contested sign which have less impact on consumers as stated above.

Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part at the left of the sign (the initial part) the one that first catches the attention of the reader.

Therefore, the signs are visually similar to an average degree.

Aurally, since the differing letters ‘I’/‘Y’ are identically pronounced by the relevant public under analysis, the verbal element of both signs are phonetically identical.

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

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

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

5. Global assessment, other arguments and conclusion

The 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, Sabel, EU:C:1997:528, § 23).

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 and 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 the present case, the contested goods are partly identical and partly similar. They are directed at the public at large for which the degree of attention is average. The earlier mark has a normal degree of distinctiveness. The signs have been found visually similar to an average degree, aurally identical and there is no conceptual difference between the signs that could otherwise help consumers to more easily distinguish between them.

The Opposition Division finds that the degree of similarity between the signs is sufficient for it to be concluded that the relevant public may reasonably believe that the goods found to be identical or similar originate from the same undertaking or economically linked undertakings.

Account is also 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).

Considering all the above, there is a likelihood of confusion on the part of the Spanish-speaking part of the public. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Therefore, the opposition is well founded on the basis of the opponent’s European trade mark registration No 16 475 791.

It follows that the contested trade mark must be rejected for all the contested 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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), the costs to be paid to the opponent are the opposition fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Begoña URIARTE VALIENTE

Martin INGESSON

Kieran HENEGHAN

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.