OPPOSITION No B 3 059 981

Miguel Torres S.A., Miquel Torres i Carbó, 6, 08720 Vilafranca del Penedès (Barcelona), Spain (opponent), represented by Curell Suñol S.L.P., Via Augusta 21, 08006 Barcelona, Spain (professional representative)

a g a i n s t

Αφοι Γ. Κουρτιδη Α.Ε., 1ο Χλμ Σερρων Νιγριτας, 621 00 Σερρες, Greece (applicant), represented by Z. J. Blazaki, 6, Neofytou Douka str., 106 74 Athens, Greece (professional representative).

On 05/11/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 059 981 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 17 887 018 for the figurative mark . The opposition is based on European Union trade mark registration No 9 820 457 for the word mark ‘NECTARIA’. The opponent invoked Article 8(1)(b) EUTMR.

PRELIMINARY REMARKS — CONTINUATION OF PROCEEDINGS

On 31/08/2018, in accordance with Article 6(1) and Article 8(2) EUTMDR, the Office gave the applicant until 05/03/2019 to submit observations in reply to the opposition. On 29/03/2019, outside the time limit, the applicant submitted a request for continuation of proceedings pursuant to Article 105 EUTMR. The request was submitted (and the corresponding fee paid) within two months of the expiry of the unobserved time limit, and the applicant submitted its observations at the same time. Therefore, the consequences of having failed to observe the relevant time limit are deemed not to have occurred and the observations of the applicant will be taken into account.

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 33: Alcoholic beverages (except beers).

The contested goods are the following:

Class 32: Non-alcoholic beverages.

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.

According to recent case-law,

it should be noted that a very large number of alcoholic and non-alcoholic drinks are generally mixed, consumed, or indeed marketed together, either in the same establishments or as premixed alcoholic drinks. To consider that those goods should, for that reason alone, be described as similar, when they are not intended to be consumed in either the same circumstances, or in the same state of mind, or, as the case may be, by the same consumers, would put a large number of goods which can be described as ‘drinks’ into one and the same category for the purposes of the application of Article 8(1) of Regulation No 207/2009 (see, to that effect, judgment of 3 October 2012, Yilmaz v OHIM — Tequila Cuervo (TEQUILA MATADOR HECHO EN MEXICO), T‑584/10, EU:T:2012:518, paragraph 55 and the case-law cited).

… Thus, it cannot be considered that an alcoholic drink and an energy drink are similar merely because they can be mixed, consumed or marketed together, given that the nature, intended purpose and use of those goods differ, based on the presence of, or absence of alcohol in their composition (see, to that effect, judgment of 18 June 2008, MEZZOPANE, T‑175/06, EU:T:2008:212, paragraph 79). Furthermore, it must be held that the undertakings which market alcoholic drinks premixed with a non-alcoholic ingredient do not sell that ingredient separately and under the same or similar mark as the premixed alcoholic drink at issue (judgment of 3 October 2012, TEQUILA MATADOR HECHO EN MEXICO, T‑584/10, EU:T:2012:518, paragraph 70).

(04/10/2018, T‑150/17, Red Bull (FLÜGEL), EU:T:2018:641, § 80-81).

The contested non-alcoholic beverages in Class 32 are considered dissimilar to the opponent’s alcoholic beverages (except beers) in Class 33.

2. Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.

COSTS

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

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

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

The Opposition Division

Sam GYLLING

Katarzyna ZANIECKA

Martin INGESSON

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.