olya | Decision 2723339
Date Published: Oct 1, 2017
OPPOSITION No B 2 723 339
Carapelli Firenze, S.p.A., Via Leonardo da Vinci, 31 - Località Sambuca, 50028 Tavarnelle val di Pesa (Firenze), Italy (opponent), represented by María José Garreta Rodríguez, Aribau, 155, bajos, 08036 Barcelona, Spain (professional representative)
a g a i n s t
Μιχαηλ Στεργιοπουλοσ, Κυπρου 8, 27050 Βαρθολομιο, Greece (applicant), represented by Zωη Απλαντη, Κυπρου 8, 27050 Βαρθολομιο Νομου Ηλειασ, Greece (professional representative).
On 19/04/2017, the Opposition Division takes the following
DECISION:
- Opposition No B 2 723 339 is upheld for all the contested goods, namely
Class 29: Oils and fats.
2. European Union trade mark application No 15 220 221 is rejected for all the contested goods. It may proceed for the remaining services.
3. The applicant bears the costs, fixed at EUR 620.
REASONS:
The opponent filed an opposition against some of the goods and services of European Union trade mark application No 15 220 221, namely against all the goods in Class 29. The opposition is based on, inter alia, European Union trade mark registration No 3 887 932. 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 European Union trade mark registration No 3 887 932.
- The goods
The goods on which the opposition is based are the following:
Class 29: Edible oils and fats.
The contested goods are the following:
Class 29: Oils and fats.
Contested goods in Class 29
Oils and fats are identically contained in both lists of goods (including synonyms).
- 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
Olys | olya |
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 word mark, ‘OLYS’. This element has no meaning for the relevant public and is, therefore, distinctive.
The contested mark is also a word mark, ‘OLYA’. This element has no meaning for the relevant public and is, therefore, distinctive.
In the case of word marks, it is the word as such that is protected, and not its written form. Therefore, the use of upper or lower case is irrelevant.
Visually, the signs coincide in the letters ‘OLY’. However, they differ in the final letter ‘S’ of the earlier mark, and in the final letter ‘A’ of the contested mark, which have no counterparts in the opposite mark.
Therefore, the signs are visually similar, at least to an average degree.
Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‛OLY’, present identically in both signs. The pronunciation differs in the sound of the letters ‘S’ of the earlier mark, and the final letter ‘A’ of the contested mark.
Therefore, the signs are aurally similar, at least to an average 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.
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 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 contested goods are identical. The signs are visually and aurally similar, at least to an average degree, to the extent that they have the sequence of letters ‘OLY’ in common.
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. In the present case, the differentiating elements of the letters ‘S’ respectively ‘A’ comes at the end of the respective sign, which is usually the part of a sign that does not attract the primary attention of the consumer.
It should be noted that consumers tend to remember the similarities rather than the dissimilarities between signs. In addition, account should also be 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 Meyer, EU:C:1999:323).
Based on the principle of imperfect recollection, as well as the principle of interdependence between the relevant factors, that is, that a lesser degree of similarity between the signs may be offset by a greater degree of similarity between the goods and services and vice versa, and given the identity between the goods in question, it is considered that the established similarities between the signs are sufficient to cause the public to believe that the identical goods come from the same undertaking or economically linked undertakings.
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 European Union trade mark registration no 3 887 932. It follows that the contested trade mark must be rejected for all the contested goods.
As the earlier European Union trade mark No 3 887 932 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).
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
Irina SOTIROVA | Lena FRANKENBERG GLANTZ | Janja FELC |
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.