Hard day for easyGroup
It wasn’t able to rely on its family of marks, reports Saaira Gill. B 3 002 352, easyGroup Ltd v Anecoop S. Coop, EASY BOUQUET (Opposition), EUIPO, 30th April 2019.
B 3 002 352, easyGroup Ltd v Anecoop S. Coop, EASY BOUQUET (Opposition), EUIPO, 30th April 2019
The Opponent, easyGroup Ltd, opposed an EU trade mark (EUTM) application for Easy Bouquet filed by Anecoop S. Coop (the Applicant). The application covered, inter alia, processed fruits and vegetables in class 29, fresh fruits and vegetables in class 31 and non-alcoholic beverages in class 32. The opposition was directed against all goods covered by the application, was based on Article 8(1)(b) EUTMR, and relied upon eight earlier EUTM registrations (EASYJET, EASYGROUP, EASYFOODSTORE, EASYPIZZA, EASYCOFFEE, EASYESPRESSO, EASYCAFE and EASYGIFTS). The opposition was based on goods in classes 29–33 and services in classes 35, 39 and 43. For reasons of procedural economy the Office did not undertake a full comparison of the goods and services, but ruled that some of the contested goods are identical or similar to the goods and services upon which the opposition is based.
Distinctiveness
The Office examined the opposition in relation to the first earlier mark, namely an EUTM registration for EASYJET. The word JET was considered to be distinctive to an average degree. Predictably, the word EASY was found to be non-distinctive, as previously confirmed by the Board of Appeal in 2017. For the contested mark, the word Bouquet was found to be distinctive to an average degree, and Easy non-distinctive. The marks were found to be visually and aurally similar to a low degree and conceptually similar to a very low degree.
Reputation claimed
easyGroup had claimed a reputation in the earlier mark and had submitted a range of evidence in support of this claim. Upon examination of the evidence, the Office found that EASYJET has a certain degree of recognition among the relevant public and concluded that EASYJET enjoys enhanced distinctiveness, but in relation to transportation services only. Consequently, for the contested goods the distinctiveness of the earlier mark was normal, and it was found that the differences between EASYJET and Easy Bouquet were sufficient to exclude any likelihood of confusion.
easyGroup had also claimed that the earlier trade marks constitute a family of marks and argued that this would give rise to a likelihood of confusion. However, it was unable to satisfy the two cumulative conditions required. Its evidence failed to establish that it is using a family of EASY marks and there was no convincing information to demonstrate that consumers would be aware that there is a family of marks used in the same field of goods as covered by the application. easyGroup had referred to various EUIPO opposition decisions that confirmed it had a family of marks. However, the Office found that the previous cases relied upon belonged to a much earlier period of time, at least 11 years before the publication date of the application, and the evidence submitted in those cases was not the same as the present case. So, the Office did not take the previous cases into account.
The Office examined the seven other earlier marks relied upon but reached the same conclusion, and accordingly dismissed the opposition in its entirety.
Key points
- easyGroup failed to prove that it uses a family of EASY marks
- Previous decisions of the EUIPO, which confirmed that easyGroup has a family of marks, were not taken into account as they were too old and related to different evidence
- Simply having registrations for a family of marks is, in itself, not sufficient and evidence of
- use must be filed in order to rely on a family of marks
Saaira Gill is a Chartered Trade Mark Attorney and Associate at Bristows LLP