OPPOSITION No B 3 062 173

Deliflor Chrysanten B.V., Korte Kruisweg 163, 2676 BS Maasdijk, Netherlands (opponent), represented by Merkenbureau Knijff & Partners B.V., Leeuwenveldseweg 12, 1382 LX Weesp, Netherlands (professional representative)

a g a i n s t

Michael Hellin, c/Cruz roja 1, bl.6, PB pta 5, 46014 Valencia, Spain (applicant).

On 27/09/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 062 173 is upheld for all the contested goods.

2. European Union trade mark application No 17 890 902 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 890 902 for the word mark ‘Deliflora’. The opposition is based on, inter alia, international trade mark registration No 1 033 175 designating the European Union, for the word mark ‘DELIFLOR’. 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 and services

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

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; seeds for sowing, natural plants and flowers.

The contested goods, after a final limitation made by the applicant, are the following:

Class 29: Processed edible flowers; edible dried flowers; processed edible flowers in crystallized form; excluding all the varieties of chrysanthemums.

Class 30: Garden herbs, preserved [seasonings]; flowers or leaves for use as tea substitutes; processed herbs; dried herbs; seaweed [condiment]; herbal infusions; dried herbs for culinary purposes; herb teas, other than for medicinal use; excluding all the varieties of chrysanthemums.

Class 31: Fresh edible flowers; natural edible plants [unprocessed]; garden herbs, fresh; garden herbs, fresh; potted fresh herbs; flowers; cut flowers; dried flowers; living salad; fresh plants; natural plants; roses [plants]; grasses [plants]; flowering plants; unprocessed herbs; organic fresh herbs; dried herbs for decoration; flowers; excluding all the varieties of chrysanthemums.

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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.

Contested goods in Classes 29 and 30

The contested goods in these classes are processed edible flowers and herbs, which may include viola, begonia or for example roses, basil and mint. They are in competition with the opponent’s natural plants and flowers in Class 31, which include, inter alia, fresh flowers and herbs. Furthermore, they target the same relevant public and may be sold via the same distribution channels. Therefore, they are similar to a low degree.

Contested goods in Class 31

Natural plants are identically contained in both lists of goods and services.

The contested fresh edible flowers; natural edible plants [unprocessed]; garden herbs, fresh (listed twice); potted fresh herbs; flowers (listed twice); cut flowers; living salad; fresh plants; natural plants; roses [plants]; grasses [plants]; flowering plants; unprocessed herbs; organic fresh herbs; excluding all the varieties of chrysanthemums are included in the broad category of the opponent’s natural plants and flowers. Therefore, they are identical.

The contested dried flowers; dried herbs for decoration; excluding all the varieties of chrysanthemums are included in the broad category of the opponent’s agricultural, horticultural and forestry products and grains not included in other classes. Therefore, they are identical.

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 to a low degree are directed at the public at large whose degree of attention is considered to be average, as well as at professional customers in various fields such as horticulture (i.e. seeds) and cooking (i.e. edible flowers).

3. The signs

DELIFLOR	Deliflora
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 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 common components ‘DELI’, as well as the components ‘FLOR’ and ‘FLORA’ are meaningful in certain territories, for example in those countries where Spanish is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the Spanish-speaking part of the public, for which, in addition, a conceptual link between the signs will be established.

Both signs, perceived as a whole, do not convey any meaning for the public in the relevant territory. However, the relevant consumers, when perceiving a verbal sign, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58). The Spanish-speaking public, for example, will grasp the words ‘flor’, meaning ‘a flower’, and ‘flora’, meaning ‘the plants of a particular region, habitat, or geological period’. Moreover, bearing in mind that the relevant goods include edible plants and flowers, the component ‘deli-’ may allude to ‘delicado’ (‘delicate’) or ‘delicioso’ (‘delicious’). Consequently, given the nature of the above compared goods, these verbal elements of the signs are considered weaker than average because they allude to the nature or characteristics of the relevant goods.

Visually and aurally, the signs coincide in the string of letters and their sounds ‘DELIFLOR*’. However, they differ in the final letter ‘A’ (of the contested sign) and its sound which has no counterpart in the earlier mark. Furthermore, differences in the use of lower or upper case letters are immaterial, even if lower case and upper case letters alternate.

Therefore, given the difference in only one letter, present in a non-prominent position, the signs are visually and aurally highly similar.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs may be associated with similar meanings, as outlined above, the signs are conceptually highly similar.

As the signs have been found similar in all aspects 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 claimed that the earlier trade mark ‘has a high degree of distinctiveness’ but did not file any evidence in order to prove such a claim.

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 is an invented word and 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 weaker distinctiveness of its coined elements, as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

According to the case-law of the Court of Justice, in determining the existence of likelihood of confusion, trade marks have to be compared by making an overall assessment of the visual, aural and conceptual similarities between the marks. The comparison ‘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, § 22.). Likelihood of confusion must be assessed globally, taking into account all the circumstances of the case.

In the present case, the goods of the contested sign have been found partly identical and partly similar to a low degree to those of the earlier mark. They are directed at the public at large and at professionals, whose degree of attention is considered average.

The signs are visually, aurally and conceptually highly similar on account of the string of letters/sounds ‘DELIFLOR’, which represents the entire earlier mark.

The earlier mark is inherently distinctive, for the reasons explained above.

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 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).

The applicant’s argument that the goods and services of the earlier mark are limited to several varieties of chrysanthemum while the goods of the contested sign are intended to be other varieties, none of which is chrysanthemum, must be dismissed. The comparison of the goods and services must be based on the wording indicated in the respective lists of goods/services (as applied for, as registered, or as resulting from the proof of use submitted). Any actual or intended use not stipulated in the list of goods/services is not relevant for this comparison since it is part of the assessment of likelihood of confusion in relation to the goods/services on which the opposition is based and against which it is directed; it is not an assessment of actual confusion or infringement (judgment of 16/06/2010, T-487/08, Kremezin, EU:T:2010:237, § 71). The opponent’s goods and services refer to plants and flowers and to agricultural, horticultural and forestry products as broader categories not limited to specific varieties.

In his observations, the applicant argues that many companies own and use trade marks containing the word ‘flora’ and the prefix ‘deli’. He further refers to other similar cases but does not put forward any particular line of reasoning in relation to those cases. Consequently, these cases cannot be considered relevant and will not be taken into account.

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 international trade mark registration No 1 033 175 designating the European Union. It follows that the contested trade mark must be rejected for all the contested goods. Taking into account the interdependence principle mentioned above, in relation to the goods found to be similar to a low degree, the Opposition Division considers that the marks are close enough to produce confusion in the mind of the consumers regarding the origin of those goods as well.

As the earlier right international trade mark registration No 1 033 175 designating the European Union 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 is no need to examine the other earlier right invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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, he 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

Manuela RUSEVA

Tzvetelina IANTCHEVA

Sofía SACRISTÁN MARTÍNEZ

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.