Decision Nº O/651/20 from Intellectual Property Office - (Trade market), 22 December 2020
| Judge | Mr Arran Cooper |
| Date | 22 December 2020 |
| Administrative Decision Number | O/651/20 |
| Court | Intellectual Property Office (United Kingdom) |
| Registration Number | UK00003416221 |
O/651/20
TRADE MARKS ACT 1994
IN THE MATTER OF APPLICATION NO. UK00003416221
BY AXIOM FOODS, INC
TO REGISTER:
ORYZATEIN
AS A TRADE MARK IN CLASS 30
AND
IN THE MATTER OF OPPOSITION THERETO
UNDER NO. 418012 BY
EURYZA GMBH
2
BACKGROUND AND PLEADINGS
On 24 July 2019, Axiom Foods, Inc (“the applicant”) applied to register the trade
mark shown on the cover of this decision (“the applicant’s mark”) in the UK for the
following goods:
Class 30: Brown rice protein concentrate used as food.
The applicant’s mark was published for opposition purposes on 2 August 2019 and
on 8 October 2019 it was opposed by Euryza GmbH (“the opponent”). The
opposition is based on section 5(2)(b) of the Trade Marks Act 1994 (“the Act”). The
opponent relies on the following mark:
EUTM no. 2686731
Filing date 6 May 2002; registration date 2 October 2002
Relying on all goods namely:
Class 29: Ready or semi-ready meals consisting of rice, pasta, potatoes,
meat, fish, vegetables; preserved, dried and cooked pulses;
edible oils and fats.
Class 30: Rice, flour and preparations made from cereals, pasta, sauces,
snacks consisting of rice, in particular puffed rice, in sweet and
savoury form; rice biscuits, rice cakes.
Class 31: Pulses.
(“the opponent’s mark”)
3
The opponent submits that there is a likelihood of confusion between the parties’
respective marks due to the close similarity between them and the identity and/or
similarity of the respective goods. The applicant filed a counterstatement denying
the claims made and requested that the opponent provide proof of use of its mark.
The relevant period within which proof of use must be shown is between 25 July
2014 and 24 July 2019.
The opponent is represented by Keltie LLP and the applicant is represented by
Kilburn & Strode LLP. Both parties have filed evidence in chief and the opponent
has filed evidence in reply. No hearing was requested and only the applicant has
filed submissions in lieu of a hearing. I have taken these into consideration and will
refer to them below where necessary. This decision is taken following a careful
perusal of the papers.
EVIDENCE
The opponent’s evidence
The Witness Statement of Jochen Wendt dated 9 March 2020
Mr Wendt is the managing director of the opponent, a position he has held for four
years. The opponent is part of a group of companies that are the leading rice
production companies in the world. Mr Wendt states that the opponent’s ORYZA
brand is Germany’s recognised market leader in both packaged and loose rise and
rice specialities segments. The opponent’s mark was first used in 1976 and has
since been used throughout the EU in Germany, Austria, Denmark, Poland,
Belgium and Lithuania. For the purposes of this opposition, Mr Wendt states that
he will focus on the use in respect of rice in Austria and Germany.
Mr Wendt refers to previous opposition proceedings between these parties at the
EUIPO.1 I note that within those proceedings, the EUIPO did not proceed with
assessing the mark that the opponent now seeks to rely on. Further, while there is
1 Exhibits JW 1 - 2
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