OPPOSITION No B 3 098 450

Oberkircher Winzer eG, Renchener Straße 42, 77704 Oberkirch, Germany (opponent), represented by Maucher Jenkins, Urachstr. 23, 79102 Freiburg im Breisgau, Germany (professional representative)

a g a i n s t

Halewood International Brands Limited, The Sovereign Distillery, Wilson Road, Huyton Business Park, L36 6AD Liverpool, United Kingdom (applicant), represented by Natalie Brindle, The Sovereign Distillery, Wilson Road, Huyton Business Park, L36 6AD Liverpool, United Kingdom (employee representative).

On 17/09/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 098 450 is upheld for all the contested goods.

2. European Union trade mark application No 18 094 713 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 18 094 713 for the word mark ‘AMORE’. The opposition is based on, inter alia, German trade mark registration No 30 205 999 for the word mark ‘Amour’. 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 German trade mark registration No 30 205 999.

a) The goods

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

Class 33: alcoholic beverages (except beers).

The contested goods are the following:

Class 33: alcoholic beverages (except beers).

Alcoholic beverages (except beers) are identically contained in both lists of goods.

b) 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 are directed at the public at large whose degree of attention is considered to be average.

c) The signs

Amour	AMORE
Earlier trade mark	Contested sign

The relevant territory is Germany.

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).

At least part of the relevant public will perceive the earlier mark ‘Amour’ and the contested sign ‘AMORE’ as, respectively, the French and Italian equivalent of the German word ‘Liebe’ (‘love’). Bearing in mind that the relevant goods are alcoholic beverages, the terms are distinctive. For the remaining part of the public neither of the signs has any meaning and they are, therefore, distinctive too.

It should be noted as well that when comparing word marks, in principle, differences in the use of lower or upper case letters are immaterial, even if lower case and upper case letters alternate.

Visually, the signs coincide in the string of letters ‘AMO’ and the letter ‘R’. They differ in the letters ‘U’, present only in the middle of the earlier mark, and ‘E’, present only at the end of the contested sign.

In this regard it should be borne in mind that 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 placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Therefore, the signs are visually highly similar.

Aurally, for the part of the public that will perceive the signs with a meaning, the pronunciation coincides in the sound of the letters ‘AM’ and ‘R’. For the part of the public for which the signs are meaningless, the pronunciation coincides in the letters ‘AMO’ and ‘R’. In both cases the pronunciation differs in the pronunciation of the letters ‘U’ of the earlier mark and ‘E’ of the contested sign.

Therefore, the signs are aurally similar.

Conceptually, neither of the signs has a meaning for part of 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. For the rest of the public for which the signs will be associated with an identical meaning, the signs are conceptually identical.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

d) 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 ‘is intensively used’ and in order to prove use refers to a website.

However, online evidence is admissible only in a limited number of events, as provided in Article 7(3) EUTMDR, and in particular in relation to substantiation of earlier national rights and proving the content of the national law. In all other cases the respective materials, even if available online, should be provided to the Office in a physical form (as screenshots or recorded on a digital carrier or in another appropriate form). Accordingly, for the purposes of the present analysis the information available on the respective links will not be taken into account.

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.

e) 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, Sabèl, 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 contested goods are identical to the opponent’s goods. They are directed at public at large whose degree of attention is average.

The earlier mark is inherently distinctive to a normal degree.

The signs are visually similar to a high degree and aurally similar. In particular, the marks coincide in their beginnings, which is the part that first catches the attention of the reader and this increases their weight. Furthermore, for part of the public the signs are conceptually identical.

It should be noted as well 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).

It should be also borne in mind that the relevant goods are beverages and, since these are frequently ordered in noisy establishments (bars, nightclubs), the phonetic similarity between the signs is particularly relevant (15/01/2003, T‑99/01, Mystery, EU:T:2003:7, § 48).

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s German trade mark registration No 30 205 999. It follows that the contested trade mark must be rejected for all the contested goods.

As this earlier right 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, 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, 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

Sofia SACRISTAN MARTINEZ

Tzvetelina IANTCHEVA

Maria SLAVOVA

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.