ECOLEA | Decision 2717513
Date Published: Sep 24, 2017
OPPOSITION No B 2 717 513
Ecolean AB, Box 812, 251 08 Helsingborg, Sweden (opponent), represented by Awapatent Ab, Stortorget 17, 251 10 Helsingborg, Sweden (professional representative)
a g a i n s t
Ecolea Technologie, 46-48 Rue Holtzer Parc Holtzer, 42240 Unieux, France (applicant).
On 28/08/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 717 513 is rejected in its entirety.
2. The opponent bears the costs.
REASONS:
The opponent filed an opposition against some of the goods and services of European Union trade mark application No 15 203 771 ‘ECOLEA’, namely against all the goods and services in Classes 7, 29, 31, 40. The opposition is based on European Union trade mark registrations No 709 238 ‘ECOLEAN’ and No 8 425 811 ‘ECOLEAN - A LIGHTER APPROACH TO PACKAGING’. 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 goods and services
The goods and services on which the opposition is based are the following:
EUTM No 709 238
Class 7: Machines for manufacture of packing materials, packages, packings, wrappings or plastic material; machines for extruding, injecting, moulding, extruding or laminating of plastic material or plastic products; machines for moulding, filling, stoppering or sealing of plastic material or plastic products; machines for shaping plastic.
Class 16: Plastic materials for packaging (not included in other classes) in the shape of rolls, foils, films or sheets; packaging and wrapping made of plastic and/or paper for bakery products, flowers, fruits or vegetables, confectionnaries, foodstuff, foodstuff products, or products for use in medical- or health care; sacks and bags made of plastic materials for wrapping and packaging or waste products, stickers (stationary) or labels made of plastic materials.
Class 17: Seiling and stuffing materials of plastics, plastic fibres for use in the manufacture of materials for packaging, plastic film (not for packaging); semi-manufactured plastics; paths, bars, blocks, pellets, rods, sheets or noses, pipes and tubes for packaging purposes; plastic material in extruded form for industrial use; plastic materials formed as paths, bars, blocks, pellets, rods, sheets or noses or tubes for use in the manufacturing of packaging or containers such as boxes, casks, cups, bottles, moulds, bags, stand up bags and sacks or troughs and trays and sealings, corks or seiling caps for such containers and packagings; plastic materials for the manufacture, laminated plastics and/or laminates consisting of plastics and other materials for the manufacture of components building elements, details or components for buildings, ships, boats, vehicles, machines, engines or furnitures; plastic materials for manufacture of decorative articles, cutlery, trays, plates, drinking-vessels and other household or kitchen utensils, identity signs, identity cards or loading pallets.
Class 19: Building materials (non-metallic); components, building elements and -details, all of plastics for use in buildings, boats, ships or vehicles.
Class 20: Containers and packages such as boxes, casks, cups, bottles, moulds, bags, stand up bags and sacks or troughs and trays and sealings, corks or seiling caps for such containers and packagings; all made of plastic materials; cutlery, trays, plates, identity discs; identity cards or loading pallets, all of plastic materials; furniture and parts of furniture made of plastic materials.
Class 21: Household or kitchen utensils and containers (not of precious metal or coated therewith); cutlery, trays, plates, drinking-vessels and other household or kitchen utensils, all made of plastic materials.
EUTM No 8 425 811
Class 1: Unprocessed plastics; chemicals for industrial use.
Class 7: Machines for processing of plastics, plastic products and plastic material; filling machines; packaging machines.
Class 16: Plastic material for packing (not included in other classes) and packaging; plastic films for packing and wrapping; plastic laminates in the shape of films or Sheets for packaging and wrapping; labels made of plastic material.
Class 17: Materials made of plastics (semi-manufactured); semi-manufactured plastics; plastic fibres for use in the manufacture of materials for packaging; plastic materials in extruded form for industrial use.
Class 19: Chalk and materials made of chalk; chalk and materials made of chalk for use in the manufacture of materials for packaging.
Class 20: Goods made of plastic (not included in other classes); containers of plastic for provisions (not for household purposes); packaging containers made of plastic.
Class 37: Repair/maintenance; installation services.
Class 41: Education/training; providing of training/instructions; training of operators.
Class 42: Scientific and technological services and research and design relating thereto; industrial process development; development of industrial processes and systems.
The contested goods and services are the following:
Class 7: Mills [machines]; Fertilizer manufacturing machines; Centrifugal mills; Crushing machines; Moving and handling equipment; Oil filters; Oil separators.
Class 29: Oils and fats; Groundnut oil; Peanut oil [for food]; Canola oil; Chilli oil; Coconut oil; Colza oil for food; Pumpkin seed oil for food; Camellia seed oil for food; Linseed oils [edible]; Linseed oil for culinary purposes; Corn oil; Blended oil [for food]; Palm oil for food; Palm kernel oil for food; Grapeseed oil; Rice bran oil [for food]; Rice bran oil for food; Soybean oil; Soybean oil for cooking; Soya bean oil for food; Sesame oil; Sunflower oil for food; Animal oils for food; Edible oils; Edible oils derived from fish [other than cod liver oil]; Edible oils for use in cooking foodstuffs; Edible oils for glazing foodstuffs; Cooking oils; Nut oils; Hardened oils [hydrogenated oil for food]; Hydrogenated oils for food; Hardened oils for food; Vegetable oils for food; Spiced oils; Shortening; Fat-containing mixtures for bread slices.
Class 31: Foodstuffs and fodder for animals.
Class 40: Preservation of food; Preservation of drink; Rental of machines and apparatus for processing foods; Rental of machines and apparatus for processing beverages; Flour milling; Fruit crushing; Processing of foodstuffs for use in manufacture.
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 Class 7
The contested mills [machines]; centrifugal mills; crushing machines are specific milling and grinding machines, the contested fertilizer manufacturing machines have a very specific purpose of making fertilizers, the contested moving and handling equipment are machines and devices with a clear stated purpose, while the oil filters; oil separators are goods and filters for specific purpose of treating and processing oils.
The opponent’s goods in class 7 of both earlier marks are very specific machines, mainly for processing plastic and packaging materials. Although the goods in class 7 of the parties are goods for processing materials, this does not make the goods similar in nature. The purpose and methods of use are different. Furthermore, the manufacturers, distribution channels and consumers are different. The goods are not in competition nor are they complementary. These goods are dissimilar.
It is to be noted that according to Article 28(7) EUTMR, goods or services are not regarded as being similar to each other on the ground that they appear in the same classes under the Nice Classification.
The contested goods are also dissimilar, for all the above mentioned reasons to all the other goods and services of the opponent.
Contested goods in Class 29
The goods in this class are food products, being mainly various types of edible oils and fats. These goods are dissimilar to all the goods and services of the opponent. They have different nature, purpose and methods of use. They do not have the same manufacturers, contrary to the opponents claim that the manufacturer of food items also manufacturers packaging materials. It is not a market reality that a food producer also sells packaging materials of various kinds. In addition, the goods are not complementary to any of the earlier goods or services, nor have the same distribution channels.
Contested goods in Class 31
The goods in this class are animal food products. These goods are dissimilar to all the goods and services of the opponent. They have different nature, purpose and methods of use. They do not have the same manufacturers, contrary to the opponents claim that the manufacturer of food items also manufactures packaging materials. It is not a market reality that a food producer also sells packaging materials of various kinds. In addition, the goods are not complementary to any of the earlier goods or services, nor have the same distribution channels.
Contested services in Class 40
The contested services contain food and drink preservation services, food processing, and food and beverage processing machines rental.
These services are dissimilar to all the goods and services of the opponent. They have different nature, purpose and methods of use. They do not have the same origins and/or manufacturers. In addition, the contested services are not complementary to any of the earlier goods or services, nor have the same distribution channels.
- 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 and services 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 85(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 Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, 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. In the present case the applicant did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.
The Opposition Division
Birgit FILTENBORG | Erkki MÜNTER | Irina SOTIROVA |
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.