BRUD | Decision 2730714
Date Published: Oct 1, 2017
OPPOSITION No B 2 730 714
S.A. Bru-Chevron N.V., Les Bruyères 151, 4987 Stoumont (Lorcé), Belgium (opponent), represented by Gevers, Brussels Airport Business Park, Holidaystraat, 5, 1831 Diegem, Belgium (professional representative)
a g a i n s t
Karlovarské minerální vody, a.s., Horova 3, 36021 Karlovy Vary, Czech Republic (applicant), represented by Josef Mrázek, Pernerova 11, 186 00 Praha 8, Czech Republic (professional representative).
On 28/09/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 730 714 is upheld for all the contested goods.
2. European Union trade mark application No 15 294 531 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 15 294 531 ‘BRUD’. The opposition is based on European Union trade mark registration No 149 161 ‘BRU’ and on Benelux trade mark registration No 433 049 ‘BRU’. The opponent invoked Article 8(1)(b) EUTMR as regards both earlier trade marks and also Article 8(5) EUTMR as regards Benelux trade mark.
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 European Union trade mark registration No 149 161 ‘BRU’.
- The goods
The goods on which the opposition is based are the following:
Class 32: Spring, natural, mineral, aerated and non-aerated, magnesian, bicarbonated, ferruginous waters, table waters in general, lemonade, drinks for refreshment and drinks included in this class.
The contested goods are the following:
Class 32: Mineral water [beverages]; non-alcoholic beverages.
The contested mineral water [beverages] and the opponent’s mineral waters cover the same goods. Therefore, they are identical.
The contested non-alcoholic beverages include, as a broader category, the opponent’s lemonade. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.
- 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 average.
- The signs
BRU | BRUD |
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.
As regards the whole relevant public of the European Union, the signs consist of a single word, namely ‘BRU’ in the earlier mark and ‘BRUD’ in the contested sign. These terms are meaningless in most languages of the European Union, albeit with some exceptions as, for example, French−speaking consumers may associate the earlier mark ‘BRU’ with the meaning of ‘daughter-in-law’, English− and Polish−speaking consumers may associate the contested sign ‘BRUD’ with ‘a male friend of a male (slang)’ and with the meanings of ‘dirt, filth, grime’. Danish− and Swedish−speaking consumers may associate the contested sign with ‘bride’ meaning ‘a woman in the context of her own wedding; one who is going to marry or has just been married’.
This means that for part of the relevant public, the signs are conceptually not similar because only one of the signs has a meaning that contributes to differentiating further the signs. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the largest part of the public, namely those consumers who will not associate the signs with any meaning.
Visually and aurally, the signs coincide in ‘BRU’, which constitutes the entire earlier mark and the first three letters of the contested sign. However, they differ in the last letter, ‘D’, of the contested sign.
Therefore, the signs are visually and aurally similar to a degree that is above average.
Conceptually, neither of the signs has a meaning for the public in question. 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
The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 8 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C251/95, Sabèl, EU:C:1997:528, § 22).
The goods, found to be identical, are directed at the public at large whose degree of attention is considered average. The signs are visually and aurally similar to a degree that is above average and the conceptual aspect does not influence the assessment of the similarity of the signs. The distinctiveness of the earlier mark must be seen as normal.
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). Therefore, in the present case, the identity of the goods increases the risk of confusion between the signs.
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).
Considering all the above, there is a likelihood of confusion for the consumers who will not perceive any meaning in the signs. Given that a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application, there is no need to analyse the remaining part of the public.
Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 149 161. It follows that the contested trade mark must be rejected for all the contested goods.
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/reputation as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.
As European Union trade mark registration No 149 161 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 rights invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).
Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(5) EUTMR.
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.
The Opposition Division
Boyana NAYDENOVA | Benoit VLEMINCQ | Martina GALLE |
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.