POPPERI | Decision 2768771
Date Published: Sep 28, 2017
OPPOSITION No B 2 768 771
Pop Live Oy, Kinnarinkatu 1, 04430 Järvenpää, Finland (opponent), represented by Dittmar & Indrenius, Pohjoisesplanadi 25 A, 00100 Helsinki, Finland (professional representative)
a g a i n s t
Orkla Confectionery & Snacks Sverige AB, Box 1196, 17123 Solna, Sweden (applicant), represented by Nihlmark & Zacharoff Advokatbyrå AB, Regeringsgatan 67 4 TR, 103 95 Stockholm, Sweden (professional representative).
On 27/09/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 768 771 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 15 374 069 for the word mark ‘POPPERI’, namely against all the goods in Classes 29 and 30. The opposition is based on European Union trade mark registration No 14 427 173 for the word mark ‘POPPER’. 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
The goods on which the opposition is based are the following:
Class 30: Hamburgers contained in bread rolls.
The contested goods are the following:
Class 29: Crisps and snacks based predominantly on fruit (or vegetables); Processed nuts.
Class 30: Popcorn.
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 29
The fact that the goods under comparison are foodstuff is not sufficient for a finding of similarity (12/05/2014, R 635/2013-4, MIGHTY EAGLE / EAGLE, § 32). The contested goods in Class 29 are dissimilar to the opponent’s goods because they do not have the same nature and purpose; neither are they complementary to or in competition with each other. They also have different producers and distribution channels.
As regards the nature of the goods, the contested goods are snacks, whereas the opponent’s hamburgers are a main meal or a substitute for one. Therefore, their natures are different.
Although both categories of goods have the same general purpose, that of being eaten, the more specific purpose of the opponent’s hamburgers is to satisfy one’s hunger, whereas the purpose of the contested goods is usually to be consumed between meals or as appetisers. As the goods fulfil different needs, they have different purposes. Therefore, they are also not interchangeable and thus not in competition with each other.
The goods are also not complementary, namely the one is not indispensable for the use of the other.
The mere fact that the target public of the goods can be the same is not sufficient to find the goods similar.
The opponent’s claim that the goods in question have the same distribution channels is erroneous.
For the term ‘distribution channel’, what is decisive is whether or not the goods have the same points of sale or they are usually provided or offered at the same or similar places. As nowadays supermarkets, drugstores and department stores sell goods of all kinds, only if the goods in question are offered in the same section of such shops, where homogeneous goods are sold together, is the condition of the same distribution channel fulfilled. The mere fact that diverse foodstuffs can be found in the same sales outlets, namely supermarkets and grocery stores, is not sufficient to render them similar, as, in those sales outlets, consumers can find a whole range of different products without automatically attributing a common origin to them (see, by analogy, 26/11/2011, T-72/10, Naty’s, EU:T:2011:635, § 37).
In the present case, the goods under comparison have different points of sale. Hamburgers ready for consumption are sold mainly in fast food chains, restaurants and other establishments where cooked food is offered. The contested goods are sold mainly in snack stands, food stores and supermarkets. Hamburgers can also be sold in a frozen state or pre-packed in food stores and supermarkets, but then they will be in different sections or departments from the contested goods. Therefore, the goods in question do not have the same distribution channels.
Furthermore, the goods are also usually manufactured by different undertakings. Traditionally foodstuff products are processed and marketed by different undertakings specialised in a certain category within the wide field of foodstuffs which require specific production facilities and know-how (26/06/2013, R 214/2012-1, Royal Kitchen / ROYAL et al., § 47).
Contested goods in Class 30
The contested goods in Class 30 are popcorn. As they are included in the broad category of snacks, the above findings concerning the goods in Class 29 apply by analogy. For the same reasons, namely that they have different natures, purposes, producers and distribution channels, and that they are not complementary to, or in competition with, the opponent’s goods, the contested goods in Class 30 are dissimilar to the opponent’s goods.
In addition, contrary to the opponent’s argument in the statement of grounds, it should be noted that according to Article 28(7) EUTMR, goods or services are not regarded as being similar or dissimilar to each other on the ground that they appear in the same or different classes under the Nice Classification.
- 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 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.
The Opposition Division
Lars HELBERT | Alexandra APOSTOLAKIS | Martin EBERL |
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.