SEVA | Decision 2639527 - Korhan Pazarlama ve Dis Ticaret A.S. v. SEVA Group B.V.

Date Published: Sep 28, 2017

OPPOSITION No B 2 639 527

Korhan Pazarlama ve Dis Ticaret A.S., Icerenköy Mah. Cayir Cad. Partas Center No. 1/4 Kat 14, Atasehir / Istanbul  34752, Turkey (opponent), represented by Zivko Mijatovic & Partners, Avenida Fotógrafo Francisco Cano 91A, 03540 Alicante, Spain (professional representative)

a g a i n s t

SEVA Group B.V., Swalmerstraat 73, 6041 MA Roermond, The Netherlands (applicant), represented by Abcor B.V., Frambozenweg 109/111, KA Leiden, The Netherlands (professional representative).

On 24/05/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 639 527 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against some of the services of European Union trade mark application No 14 430 615, namely against some of the services in Class 35. The opposition is based on European Union trade mark registration No 11 008 752. 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.

1. The goods and services

The goods on which the opposition is based are the following:

Class 29:                Meat, fish, poultry; meat extracts; preserved, dried and cooked fruits and vegetables; jellies for food; jams; meat and fish stock concentrates; edible oils and fats; cheese and other milk products; spreads containing fat; vine leaves in brine; potato chips; frosted fruits; crustaceans (not live); preserved garden herbs; vegetable juices for cooking, tomato purée.

Class 30:        Cereal preparations and cereal flakes for human consumption, spices, spice mixtures; bread, pastries; salt, vinegar sauces; honey; ginger; chocolates; sweets; confectionery; nutmegs; pies; ferments for pastes; aromatic preparations for food, fruit sauces.

Class 31:        Agricultural, horticultural and forestry products for human consumption; grains and seeds for human consumption; fresh fruits and vegetables, pulses; seedlings; nuts, olives; oil cake; citrus fruits; onions.

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 services are the following:

Class 35:        Business mediation with regard to the purchase and sale, import and export; Wholesaling and retailing; Business management, Including the management of online shops, aimed at wholesaling and the operation thereof; Business mediation with regard to purchase and sale, including online; The bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and sell those goods; The aforesaid services all relating to various consumer goods, namely beers, non-alcoholic beverages, including soft drinks, Energy beverages and sports drinks, Drinking waters, flavoured waters, Mineral and aerated waters, Fruit drinks and fruit juices, Alcoholic beverages, including alcoholic energy drinks, Alcoholic mixed beverages, Cider, liquors, Digestants, Distilled beverages and Fortified wine, gin, Kirsch, whisky, including malt whisky, scotch whisky, port, port wines, rice alcohol, Wine, rum, sangria, tequila, vermouth, Vodka; Information and consultancy with regard to the aforesaid services; All the aforesaid services also provided via the Internet, Online or via other electronic means.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

The term ‘including’ used in the applicant’s list of services, indicates that the specific services are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (see the judgment of 09/04/2003, T-224/01, Nu-Tride, EU:T:2003:107).

However, the term ‘namely’, used in the applicant’s list of services to show the relationship of individual goods and services with a broader category, is exclusive and restricts the scope of protection only to the specifically listed services.

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.

Retail services concerning the sale of particular goods are similar to a low degree to those particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public. The same reasoning applies to the service of bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and sell those goods.

Therefore, the contested The bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and sell those goods; The aforesaid services all relating to various consumer goods, namely beers, non-alcoholic beverages, including soft drinks, Energy beverages and sports drinks, Drinking waters, flavoured waters, Mineral and aerated waters, Fruit drinks and fruit juices, All the aforesaid services also provided via the Internet, Online or via other electronic means are similar to a low degree to the respective opponent’s goods: Beers; mineral and aerated waters and other non-alcoholic beverages; Fruit beverages and fruit juices in Class 32.

The contested Information and consultancy with regard to the aforesaid services (The bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and sell those goods; The aforesaid services all relating to various consumer goods, namely beers, non-alcoholic beverages, including soft drinks, Energy beverages and sports drinks, Drinking waters, flavoured waters, Mineral and aerated waters, Fruit drinks and fruit juices, All the aforesaid services also provided via the Internet, Online or via other electronic means) All the aforesaid services also provided via the Internet, Online or via other electronic means are usually not included in the provision of the said retail services. Therefore, these services are considered dissimilar to the opponent´s goods.

Retail services in general (i.e. not limited in the specification to the sale of particular goods) are not similar to any goods that can be sold at retail (see Communication No 7/05 of the President of the Office of 31/10/2005 concerning the registration of European Union trade marks for retail services). Apart from being different in nature, since services are intangible whereas goods are tangible, they serve different needs. Retail services consist in bringing together, and offering for sale, a wide variety of different goods, thus allowing consumers to conveniently satisfy different shopping needs at one stop. This is not the purpose of goods. Furthermore, goods and services have different methods of use and are neither in competition nor necessarily complementary. The same reasoning applies to the wholesaling.

Therefore, the contested Wholesaling and retailing, Information and consultancy with regard to the aforesaid services; All the aforesaid services also provided via the Internet, Online or via other electronic means are dissimilar to all of the opponent’s goods.

In regards to the contested The bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and sell those goods; The aforesaid services all relating to various consumer goods, namely Alcoholic beverages, including alcoholic energy drinks, Alcoholic mixed beverages, Cider, liquors, Digestants, Distilled beverages and Fortified wine, gin, Kirsch, whisky, including malt whisky, scotch whisky, port, port wines, rice alcohol, Wine, rum, sangria, tequila, vermouth, Vodka; Information and consultancy with regard to the aforesaid services, All the aforesaid services also provided via the Internet, Online or via other electronic means it is to be noted that similarity between retail services of specific goods covered by one mark and specific goods covered by another mark can only be found where the goods involved in the retail services (and services related thereto) and the specific goods covered by the other mark are identical. The same reasoning applies to the service of bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and sell those goods.

In the present case, this condition is not fulfilled since the goods at issue are not identical. Therefore, these contested services are dissimilar to all the goods of the opponent.

The contested Business mediation with regard to the purchase and sale, import and export; Business management, Including the management of online shops, aimed at wholesaling and the operation thereof; Business mediation with regard to purchase and sale, including online, Information and consultancy with regard to the aforesaid services;All the aforesaid services also provided via the Internet, Online or via other electronic means are dissimilar to all the opponent’s goods. This is because the contested services differ in nature, have different purposes, have usually different providers/producers and distribution channels. Furthermore, they have different methods of use and are neither in competition nor complementary. Therefore, they are dissimilar. 

2. 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 and services found to be similar to a low degree are directed at the public at large. The degree of attention is considered to be average.

3. The signs

SERA	SEVA
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 sign is the word mark ‘SERA’. The word sera has different meanings in some of the official languages of the European Union. It means, inter alia, ‘greenhouse’ in Greek and in Romanian, ‘evening’ in Italian, a ‘handle-less basket’ used in farming in Spanish, the plural form of ‘serum’ in German.

The contested sign is the word mark ‘SEVA’. In Romanian, the word seva means either ‘strength, vigour’ or ‘circulating fluid of the vascular system of a plant’.

In the present case, the Opposition Division finds it appropriate to avoid examining specific meanings of the signs for the different parts of the relevant public, to focus the comparison of the signs on the part of the relevant public, such as the Danish-, Dutch-, Estonian-, Finnish-, Hungarian-, Latvian-, Lithuanian-, Maltese-, Polish-, Slovakian-, Swedish-speaking part of the public, for which the signs have no meaning. Accordingly, none of the signs can be considered weak in relation to the present goods and services.

Conceptually, neither of the signs has a meaning for the public in the selected part of the relevant public . Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

Visually and aurally, the signs coincide in the letters (and the sound of) ‘SE*A’. The marks differ in the letters ‘R’ (earlier sign) and ‘V’ (contested sign), which have no counterpart in the other mark. Taking into account the short length of the signs and the visual and aural differences between the letters ‘R’ and ‘V’, the signs are similar to an average degree.

 

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. 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.

5. Global assessment, other arguments and conclusion

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).

The signs are visually and aurally similar to an average degree.

The contested services are partially similar to a low degree and partially dissimilar to the goods of the opponent and target the public at large. The level of attention is considered to be average.

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).

In the present case, the similarity between the signs is not more than average. Furthermore, the signs are merely consisting of four letters each. Because of this limited length and the striking visual differences originating from the letters ‘R’ and ‘V’, the similarity of signs in the present case is not sufficient to offset the only low degree of similarity between the goods and services. Following from the above, the Opposition Division does not find it plausible to conclude that the relevant consumer, who, for the purposes of the assessment, is considered to be reasonably well informed and reasonably observant and circumspect, might believe that the goods and services, found to be similar to a low degree, come from the same undertaking or economically linked undertakings.

Consequently, the relevant public will not be confused when being confronted with the conflicting signs being affixed on the goods respectively used for the contested services. Considering all the above, there is no likelihood of confusion on the part of the public for which the signs do not bear a meaning.

The opponent refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T-281/02, Mehr für Ihr Geld, EU:T:2004:198).

In its observations the opponent is referring to previous decisions by the Office regarding trademarks consisting of four letters each and differing in their respective third letter.

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In the present case, both decisions referred to by the opponent are regarding signs which consist of four letters each and only are differing in their respective third letter. One of the previous decisions referred to by the opponent addresses merely the finding of similarity between signs while the other one addresses the finding of likelihood of confusion between signs for identical goods. However, there is nothing that indicates that a low degree of similarity between g & s should be offset by a mere average degree of similarity between signs. Consequently, these previous cases referred to by the opponent are not relevant to the present proceedings.

Considering all the above, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

This absence of a likelihood of confusion equally applies to the part of the public for which one or both of the signs have a meaning. As a result the public will perceive the signs as being even less similar, as it will attach a different concept to one or both of them and will help consumers to even better distinguish between the signs also on conceptual level.

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

Irina SOTIROVA

André Gerd Günther BOSSE

Plamen IVANOV

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.