OPPOSITION No B 3 059 497

Natra Midco S.L.U., Autovía A3 Salida 343 -Camíi de Torrent S/N, 46930 Quart de Poblet, Spain (opponent), represented by Bermejo & Jacobsen Patentes-Marcas S.L., Av. de Europa 14, 28108 Alcobendas (Madrid), Spain (professional representative)

a g a i n s t

Royal Gulf Chocolats (bvba), Nelemeersstraat 34, 9830 Sint-Martens-Latem, Belgium (applicant), represented by De Clercq & Partners, Edgard Gevaertdreef 10 a, 9830 Sint-Martens-Latem, Belgium (professional representative).

On 29/01/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 059 497 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 17 875 613 for the figurative mark . The opposition is based on European Union trade mark registration No 5 172 341 for the word mark ‘BELGIDOR’. The opponent invoked Article 8(1)(a) and (b) EUTMR.

PROOF OF USE

Proof of use of the earlier mark was requested by the applicant. However, at this point, the Opposition Division does not consider it appropriate to undertake an assessment of the evidence of use submitted (15/02/2005, T‑296/02, Lindenhof, EU:T:2005:49, § 41, 72). The examination of the opposition will proceed as if genuine use of the earlier mark had been proven for all the goods and services invoked, which is the best light in which the opponent’s case can be considered.

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

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

1. The goods and services

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

Class 16: Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists’ materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes).

Class 30: Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard, vinegar, sauces (condiments); spices; ice and chocolate.

Class 35: Retailing in small shops and via global computer networks of coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee, flour and preparations made from cereals, bread, pastry and confectionery, ices.

The contested goods are the following:

Class 30: Cocoa, chocolate and chocolate products; chocolate tablets and pralines, chocolate spreads and chocolate vermicelli; chocolate fillings within this class; chocolate beverages and chocolate products for the preparation of chocolate beverages.

Some of the contested goods are identical to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services 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. The degree of attention will be average.

3. The signs

BELGIDOR
Earlier trade mark	Contested sign

The relevant territory is the European Union.

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

The prefix ‘BELGI-’ included in both marks will be perceived throughout the European Union (EU) as a reference to ‘Belgium’ or ‘Belgian’. It is common knowledge throughout the whole EU that Belgium is reputed for high quality chocolate. Consequently, the prefix ‘BELGI-’ is weak for the relevant goods assumed to be identical because it alludes to the geographical origin and the quality of these goods.

This being said, the words ‘BELGIDOR’ and ‘Belgico’ as a whole have no meaning for the relevant public (due to the meaningless distinctive endings ‘-DOR’/‘-co’) and are, therefore, distinctive.

The figurative element depicting two flowers in the contested sign has no clear meaning in relation to the relevant goods and is, therefore, distinctive.

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

Visually, the signs coincide only in the prefix ‘BELGI-’, which is weak. However, they differ in the distinctive endings ‘-DOR’/‘-co’ and in the distinctive figurative element of the contested sign. The marks also differ in the stylisation of the verbal element ‘Belgico’ of the contested sign.

Therefore, the signs are visually similar to a very low degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the syllables ‛BEL-GI-’, present identically in both signs, which are however weak. The pronunciation differs in the distinctive syllables ‛-DOR’/‘-CO’ of the respective marks.

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

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Both signs will be associated with the weak concept of ‘BELGI-’. Moreover, the contested sign contains the distinctive concept of flowers, which has no counterpart in the earlier mark. Consequently, the signs are conceptually similar to a 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. In the present case, the earlier trade mark 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 prefix in the mark, as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The goods have been assumed to be identical. The earlier trade mark’s degree of distinctiveness is average. The degree of attention of the relevant public, which is the public at large, will be average.

The marks are visually similar to a very low degree, aurally similar to an average degree and conceptually similar to a low degree. The similarities between the signs concern only the weak prefix ‘BELGI-’. The different endings ‘-DOR’/‘-co’ and the additional distinctive figurative element of the contested sign are clearly perceivable and sufficient to exclude any likelihood of confusion between the marks.

In addition, the goods themselves are fairly ordinary consumer products that are commonly purchased in supermarkets or establishments where goods are arranged on shelves and consumers are guided by the visual impact of the mark they are looking for (15/04/2010, T‑488/07, Egléfruit, EU:T:2010:145). Consequently, the fact that the marks are visually similar to a very low degree has a particular impact in the present case.

In view of all the above, the similarities between the marks are not sufficient to lead to a likelihood of confusion on the part of the public.

The opponent refers to a previous case of 19/09/2016, B 2 459 058 in which the Opposition Division found a likelihood of confusion between the earlier trade mark ‘BELGIDOR’ and the contested word mark ‘BELGIQUE D’OR’. However, this previous decision is not comparable to the present case because the marks have more differences due to the different endings ‘-DOR’/‘-co’ and the additional distinctive figurative element of the contested sign, which has no counterpart in the earlier trade mark. Consequently, the previous case is not persuasive of likelihood of confusion in the present case.

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.

Given that the opposition is not well founded under Article 8(1) EUTMR, it is unnecessary to examine the evidence of use filed by the opponent.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR because the signs are obviously not identical.

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, 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

Marzena MACIAK

Vít MAHELKA

Cindy BAREL

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.