BLANCHE | Decision 2693771
Date Published: Sep 24, 2017
OPPOSITION No B 2 693 771
Rotkäppchen-Mumm Sektkellereien GmbH, Sektkellereistr. 5, 06632 Freyburg, Germany (opponent), represented by Rotkäppchen-Mumm Sektkellereien GmbH, Lucia Schwab, Matheus-Müller-Platz 1 65343 Eltville am Rhein, Germany (employee representative)
a g a i n s t
Barrymore, 9 Impasse Carles, 13007 Marseille, France (applicant), represented by Novagraaf France, Bâtiment O2 – 2, rue Sarah Bernhardt, 90017, 92665 Asnières-sur –Seine, France (professional representative).
On 14/08/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 693 771 is upheld for all the contested goods.
2. European Union trade mark application No 15 294 481 is rejected in its entirety.
3. The applicant bears the costs, fixed at EUR 320.
REASONS:
The opponent filed an opposition against all the goods of European Union trade mark application No 15 294 481. The opposition is based on, inter alia, German trade marks registration No 30 2015 049 821. The opponent invoked Article 8(1)(b) EUTMR.
BLANCHET | BLANCHE |
Earlier trade mark | Contested sign |
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 marks registration No 30 2015 049 821.
- 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 33: Wine.
Wine is included in the opponent’s broader category alcoholic beverages (except beers). Therefore, the goods are identical.
- 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. The degree of attention is considered to be average.
- The signs
BLANCHET | BLANCHE |
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).
Both signs are word marks, ‘BLANCHET’/’BLANCHE’. These words are meaningless in the relevant territory and their distinctiveness is normal.
Visually and aurally, the signs coincide in ‘BLANCHE’ and only differ in the last letter/sound of the earlier mark ‘T’.
Therefore, the signs are visually and aurally similar to a high degree.
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.
As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.
- 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.
According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).
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.
- Global assessment, other arguments and conclusion
Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.
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).
The earlier mark includes the entire contested mark and only differs in its final ‘T’ letter. The reasonably well informed and reasonably observant and circumspect consumers will thus readily assume that the identical goods come from the same or economically linked undertaking.
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. It follows that the contested trade mark must be rejected for all the contested goods.
As the earlier German trade mark registration 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).
Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its extensive use as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.
COSTS
According to Article 85(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 Rule 94(3) and (6) and Rule 94(7)(d)(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. In the present case the opponent did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.
The Opposition Division
Francesca DRAGOSTIN | Marianna KONDAS | Julie GOUTARD |
According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.
The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.