F.U.B.A.R | Decision 2684598 - CREW Republic Brewery GmbH v. Tiny Rebel Brewing Company Ltd.
Date Published: Sep 28, 2017
OPPOSITION No B 2 684 598
Crew Republic Brewery GmbH, Andreas-Danzer-Weg 30, 85716 Unterschleissheim
Germany (opponent), represented by Gleiss Grosse Schrell Und Partner MBB, Leitzstr. 45, 70469 Stuttgart, Germany (professional representative)
a g a i n s t
Tiny Rebel Brewing Company Ltd., Sunnybank, St. Brides, Wentlooge, Newport, Newport [Casnewydd GB-CNW] NP10 8SQ, United Kingdom (applicant), represented by Tennant IP Limited, 10 Llanthewy Road, Newport, Newport [Casnewydd GB-CNW] NP20 4JR, United Kingdom (professional representative)
On 30/05/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 684 598 is rejected in its entirety.
2. The opponent bears the costs, fixed at EUR 300.
REASONS:
The opponent filed an opposition against all the goods of European Union trade mark application No 15 000 425. The opposition is based on European Union trade mark registration No 12 443 438. The opponent invoked Article 8(1)(b) EUTMR.
- The goods
The goods on which the opposition is based are the following:
Class 32: Beers; mineral and aerated waters and other non-alcoholic beverages; fruit beverages and fruit juices; syrups and other preparations for making beverages.
The contested goods are the following:
Class 32: Beers; mineral and aerated waters; non-alcoholic drinks; syrups for making beverages; fruit drinks; fruit juices; shandy, de-alcoholised drinks, non-alcoholic beers and wines.
The contested beers; mineral and aerated waters; non-alcoholic drinks; syrups for making beverages; fruit drinks; fruit juices are identically reproduced in both lists (including synonyms).
The contested shandy overlaps with the opponent’s beers since it is beer mixed with a soft drink.
The remaining contested de-alcoholised drinks, non-alcoholic beers and wines are included in the opponents other non-alcoholic beverages.
It follows that all the goods under comparison 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
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 earlier mark is a figurative mark representing a plant bud in the shape of a hand grenade. Even if a part of the relevant public would recognize the earlier mark as part of a hop plant, as a whole - in the shape of a fanciful hand grenade - it is distinctive for the relevant goods, including for beers which are generally flavoured with hops.
The contested sign is a figurative mark containing a hand grenade through which the red capital letters F.U.B.A.R, separated by dots, run. Further the mark contains some other elements like bullet holes, a single bullet and blood stains. The letters F.U.B.A.R in the contested sign are considered the most eye-catching due to their size and especially its red colour. As the opponent argues, the abbreviation F.U.B.A.R may be understood (as being ‘completely destroyed’) by a part of the public knowing military slang and also because of its use in some popular movies.
However, a significant part of the public is not familiar with the meaning of F.U.B.A.R and will perceive it as a meaningless term. In all cases, both elements (the figurative element and the word element whether understood or not) are distinctive for the relevant goods.
Visually, the signs coincide insofar as they both contain a figurative element of a hand grenade which share some similar characteristics (they have the same orientation both the lever and pull ring are placed on the left side). However, they have important differences, as the hand grenade in the earlier mark is the shape of a plant bud, whereas the contested sign contains the regular shape of hand grenade not immediately visible due to the dominance of the red capital letters F.U.B.A.R running through it. Furthermore, the contested sign contains, even if smaller, other figurative elements, like blood stains and bullet holes.
Therefore, the signs are considered to be visually only similar to a very low degree.
Aurally, purely figurative signs are not subject to a phonetic assessment. As one of the signs is purely figurative, it is not possible to compare them aurally.
Conceptually, reference is made to the previous assertions concerning the perception of the marks by the relevant public and therefore it is concluded that they are similar to the extent that they both contain the representation of a hand grenade.
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.
The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.
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 direct meaning for any of the goods in question. Therefore, the distinctiveness of the earlier mark must be seen as normal.
- Global assessment, other arguments and conclusion
The likelihood of confusion must be appreciated globally, taking into account all the factors relevant to the circumstances of the case; this appreciation depends on numerous elements and, in particular, on the degree of recognition of the mark on the market, the association that the public might make between the two marks and the degree of similarity between the signs and the goods and services (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).
In the present case the goods are identical and the degree of attention paid by the relevant public is average.
The signs are visually similar to a very low degree and conceptually similar to the extent that they have the figurative element of a hand grenade in common. However, the differentiating elements in both signs, namely the use of a part of a plant to represent the body of a hand grenade and the eye-catching distinctive letters F.U.B.A.R in red, the bullet holes, one bullet and blood stains are sufficient to exclude any likelihood of confusion between the marks.
Moreover, it should be 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 (see judgment of 15/01/2003, T-99/01, Mystery, EU:T:2003:7, § 48, which reflects this line of reasoning). In the present case, there is no element that would allow to establish any aural similarity between the signs since the earlier mark does not contain any verbal elements and the relevant public will refer to the contested mark as F.U.B.A.R.
Therefore, taking into account all the relevant circumstances of the case, the Opposition Division concludes that the dissimilarities between the marks at issue are sufficiently striking to allow for the relevant public to avoid the likelihood of confusion, including the likelihood of association. Therefore it is considered that there is no likelihood of confusion on the part of the public.
It follows that 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.
The Opposition Division
Zuzanna STOJKOWICZ | Cynthia DEN DEKKER | Jessica LEWIS |
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.