THE BOARDS OF APPEAL
DOCUMENT NON OFFICIEL À TITRE INFORMATIF

DECISION of the First Board of Appeal of 29 August 2023
73/2022-1
Obschestvo s ogranichennoy otvetstvennostyu 'MAY' dom 1 a Ozernaya
141 191 Fryazino Moskovskoy obl.
Russian Federation Invalidity Applicant / Appellant represented by SKW SCHWARZ RECHTSANWÄLTE, Wittelsbacherplatz 1, 80333
München, Germany
v
Schweppes International Limited
7 Albemarle Street W1S 4HQ London
United Kingdom Proprietor / Defendant represented by BCTG AVOCATS AARPI, 53 rue des Belles Feuilles, 75116 Paris, France
APPEAL relating to Cancellation Proceedings No 47730C (European Union trade mark registration No 18 092 427)
THE First Board of Appeal BOARD OF APPEAL
composed of G. Humphreys (Chairperson), M. Bra (Rapporteur) and A. González Fernández
(Member)
H. Dijkema
gives the following
Language of the case: English
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Decision
Summary of the facts
1 By an application filed on 9 July 2019, Schweppes International Limited ('the EUTM proprietor') sought to register the mark
for the following list of goods:
Class 30: Flavoured tea-based beverages (non-medicinal); flavoured ice tea (non- medicinal).
Class 32: Non-alcoholic tea flavoured beverages.
2 The application was published on 5 September 2019 and the mark was registered on
17 December 2019.
3 On 26 November 2020, the Obschestvo s ogranichennoy otvetstvennostyu MAY ('the cancellation applicant') filed a request for a declaration of invalidity of the registered mark for all the above goods.
4 The grounds of the request for a declaration of invalidity were those laid down in Articles
60(1)(a) in conjunction with 8(1)(b) EUTMR.
5 The request for a declaration of invalidity was based on the following earlier rights:
a) Class 30:
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b) Class 30:
c)
Class 30:
6 The invalidity applicant argues that since the goods are identical and the signs are simila r, there is a likelihood of confusion at least for the part of the relevant public with knowledge of Russian, which would include the Bulgarian-speaking public as well as the part of the public in Estonia, Latvia and Lithuania with a very good command of Russian and other parts of Central and Eastern Europe, such as the Czech Republic, Poland and Slovakia (where Russian used to be studied in schools and part of the population still has at least some basic knowledge of the Russian language), or even Germany and France. The transliteration of the element 'МАЙСКИЙ’ included in the earlier marks is 'MAYSKIY', which will be perceived by part of the relevant public, such as the Bulgarian public, as a transliteration of the English term 'MAY’ in Cyrillic characters. The signs are, therefore, conceptually similar to a high degree. Moreover, the signs are pronounced identically, with the exception of the sound of the letter 'S', which is in the middle of the earlier sign. The transliteration of the earlier sign 'МАЙСКИЙ ЧАЙ’ is 'MAYSKIY TCHAI', which means 'MAY TEA’ in English. Therefore, the contested sign is conceptually identical to the earlier mark No 678 625 and aurally highly similar since they coincide in the sounds of their initial letters. In support to its arguments, the invalidity applicant submitted the following documents:
− Annex A4: printout from Google translator with the English translation of the Russian expression 'МАЙСКИЙ ЧАЙ'.
− Annex A5: decision of the Higher Regional Court in Frankfurt, dated July 2016, written in German and translated into English, in which it held that, in cases where the marks involved contain Cyrillic letters, the question of likelihood of confusion needs to be assessed for both Russian-speaking consumers and non-Russian-speak ing consumers.
− – The articles are written in German and are partly translated into English:
− www.ga.de/news
− www.bild.de
− www.pnp.de
− www.maz-online.de
7 In reply, the EUTM proprietor claims that Russian is not an official language of the European Union (EU) and only 5 % of Europeans are able to speak Russian. On this basis, the signs are visually dissimilar for all the relevant public. For the part of the relevant public that do not read Cyrillic or speak Russian, the signs are aurally and conceptually dissimilar. Furthermore, the part of the relevant public able to read Cyrillic may transliterate the verbal elements of the earlier signs and pronounce them in the same way
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as Russian speakers, who will recognise them as Russian words and pronounce them as
MAÏ – SKI (for IR No 1 262 351 and IR No 832 458) and MAÏ – SKI – TCHAÏ (for IR
No 678 625). These parts of the relevant public will recognise that 'MAY TEA’ is an English expression and therefore pronounce it as MEÏ – TI. Therefore, for these parts of the public, the signs are also aurally dissimilar. Furthermore, even if part of relevant public can transliterate the Cyrillic letters into the Latin alphabet, it will not automatica ll y understand Russian. As the conceptual comparison by this part of the relevant public is not immediately perceived, the conceptual similarity is at most very weak. Moreover, the goods are not identical or even similar. Therefore, there is no likelihood of confusio n between the marks in conflict. In support to its arguments, the EUTM proprietor submitted the following documents:
− Annex 1: Europeans and their Languages Report, Special Eurobarometer 386, published in June 2012;
− www.ec.europa.eu
− www.Tea.ru
− Annex 4: presentation on the 'MAY TEA’ trade mark;
− Annex 5: pictures of 'MAY TEA'-branded products in supermarkets;
− Annex 6: examples of 'MAY TEA’ advertisings.
8 By means of rejoinder, the invalidity applicant further argues that, for aural similarity of the marks, it is sufficient that the relevant public can read Cyrillic and pronounce the earlier signs as MAYSKI and MAYSKI CHEI, respectively. To compare the sound of words, it is not necessary to understand their meaning. This applies to the public in Bulgaria where the Cyrillic alphabet is used. Furthermore, many EU countries have a large Russian minority that is able to read Cyrillic and understand Russian, for example, almost half of the Latvian and Lithuanian public is able to communicate in Russian. Consequently, the
Russian-speaking public must be considered a relevant part of the public. – In that regard, it is sufficient if likelihood of confusion exists for a relevant part of the public. On this basis, the marks in question are aurally highly similar and conceptually identical.
9 By decision of 16 November 2021('the contested decision'), the Cancellation Divis io n rejected the request for a declaration of invalidity in its entirety. It gave, in particular, the following grounds for its decision:
Contested goods in Class 30
− The contested flavoured tea-based beverages (non-medicinal); flavoured ice tea (non- medicinal) are included in the applicant’s broader category tea. Therefore, the goods are identical.
Contested goods in Class 32
− The contested non-alcoholic tea flavoured beverages are similar to the applicant’s tea in Class 30 as they are in competition, coincide in public and distribution channels and are commonly produced by the same companies.
Relevant public – degree of attention
− The goods at issue are directed at the public at large with an average degree of attention.
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− The relevant territory is the EU, as regards earlier right 1), Germany, as regards earlier right 2) and the Czech Republic, Germany, France, Latvia, Poland and Slovakia, as regards earlier right 3).
The signs
− The verbal element 'MAY’ of the contested sign may be perceived by part of the relevant public as an English word referring to 'the fifth month of the year'. As this meaning has no relation to the relevant goods, the word 'MAY’ is distinct ive, including for that part of the public that will perceive it as a meaningless.
− The verbal element 'TEA’ of the contested sign is likely to be perceived by the majority of the relevant public, especially in relation to the relevant goods, as the English word for 'drink made by infusing these leaves in hot water, having a somewhat bitter and aromatic flavour, and acting as a moderate stimulant; largely used as a beverage'. Bearing in mind that the relevant goods are tea beverages, this verbal element is non-distinctive. However, for the part of the public that may not grasp the meaning of the English word 'TEA', it is distinctive.
− The contested mark is a figurative mark composed of the realistic image of a bottle with a black bottle cap filled with an orange liquid. The image of the bottle with the label displaying the words 'MAY TEA’ are, due to their bigger size or central position, the more dominant (eye-catching) elements of the sign.
− Earlier marks 1) and 2) consist of one verbal element written in Cyrillic, and in earlier mark 3) there are two verbal elements. The relevant public without a knowledge of the Cyrillic alphabet will perceive them as words written in a non-Latin alphabet, for instance as Bulgarian or Russian words and most likely interpret them as coming from one of these countries or intended for markets in which the Cyrillic alphabet is used.
For this part of the public, the verbal elements included in all earlier rights are meaningless, and therefore, distinctive.
− As the applicant argues, it is well known that the Bulgarian public is generally familiar with the Latin alphabet. Signs using Latin characters are common, in particular for foreign products or services. They are often placed alongside (the corresponding) characters of the Cyrillic alphabet, which is the logical consequence of the need for trade mark proprietors to adapt their trade marks to the specific market conditions in Bulgaria where Cyrillic characters are used. -www.philibon.com -----
− – 
− Earlier marks 1) and 2) are the verbal element 'МАЙСКИЙ', which is transliterated as 'MAYSKIY'. Moreover, earlier right 3) is the verbal elements 'МАЙСКИЙ ЧАЙ', which are transliterated as 'MAYSKIY TCHAI'. The word in common 'МАЙСКИЙ’ will be perceived by the part of the public with knowledge of Russian as the Russian word for the English word 'MAY’ and the Russian expression 'МАЙСКИЙ ЧАЙ’ will be perceived as the English expression 'MAY TEA'. The same findings found for the verbal elements 'MAY TEA’ in the contested mark are applicable mutatis mutandis to the earlier marks in the case that those meanings are perceived.
− Earlier mark 1) contains figurative elements that depict a label with a crown and two lions, which allude to some extent to the goods being of a high quality. Therefore, these figurative elements are weak.
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− The earlier signs have no elements which could be considered more dominant (eye- catching) than other elements.
− Visually, earlier marks 1) and 2) and the contested mark coincide in the shape of the first two letters of the signs, and differ in the rest of their verbal elements, that is, in the letters of the Cyrillic alphabet that compose the earlier marks, 'ЙСКИЙ', and the letters 'Y TEA’ of the contested mark. In the case of earlier sign 3), they also coincide in the shape of the vowel 'A’ included in the second element of the signs, although in a different position, that is, 'ЧАЙ’ versus 'TEA'. Earlier sign 3) and the contested mark differ in their remaining verbal elements. The signs also differ in the figura t ive elements of the contested mark, which are, as already mentioned, non-distinct ive.
Moreover, earlier mark 1) and the contested sign differ in the figurative elements of the former, which are weak. Therefore, bearing in mind that the signs only coincide in the shape of two letters, they are considered visually dissimilar.
− Aurally, the part of the relevant public that cannot read the Cyrillic alphabet will perceive the earlier marks as figurative signs. Since purely figurative marks are not subject to an aural assessment, for this part of the public, it is not possible to compare the signs aurally.
− The part of the public that can read the Cyrillic alphabet will pronounce earlier marks 1) and 2) as either /Maiskii/ (the Bulgarian-speaking public) or /Maiskij/ (the Russian- speaking consumers) and earlier mark 3) as either /Maiskii Tchai/ (the Bulgaria n- speaking public) or /Maiskij tʃai/ (the Russian-speaking consumers).
− The contested sign will be read by that part of the public as /MAY TEA/ or, since a ll the letters of the contested mark exist in the Cyrillic alphabet, the contested sign could also be read, for instance by the Bulgarian-speaking public, as /MAU TEA/. In this case, the pronunciation of the signs only coincides in the sound of the first phonemes.
Therefore, for this part of the public, the signs are aurally dissimilar or at most aurally similar to a very low degree.
− The part of the relevant public that can read the Cyrillic alphabet may perceive the contested sign as composed of English words, especially when perceiving the mark in relation to the relevant goods (tea and tea beverages). In that case, the contested sign will be pronounced as /Mei Tii/. For this part of the public, the pronunciation of the signs coincides in the first phoneme /M/ and in the final phonemes /ii/ of the word 'МАЙСКИЙ'. In this case, the signs are at most aurally similar to a very low degree.
− Conceptually, the part of the public that cannot read the Cyrillic alphabet will perceive the verbal elements of the earlier signs as meaningless. The figurative elements in earlier mark 1), which depict a label with a crown and two lions, will be perceived as such. As mentioned above, the contested sign will be perceived as representing a bottle with an orange liquid bearing a label with drawings of leaves and peaches and a teapot.
Part of the relevant public will perceive the meaning of one or both English words that compose the contested sign. For those consumers, the earlier marks and the contested mark are not conceptually similar because either earlier mark 1) and the contested sign will be associated with different meanings or earlier marks 2) and 3) will not be associated with any meaning and the contested sign will.
− The part of the relevant public that can read the Cyrillic alphabet and understands Russian, such as part of the Bulgarian-, Estonian-, Latvian- and Lithuanian-speak ing public, will perceive earlier marks 1) and 2) as referring to the English word 'MAY'.
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− Moreover, earlier mark 3) will be perceived as referring to 'MAY TEA'. For this part of the public, the signs are conceptually similar to a high degree, or even identical in the case of earlier right 3) and the contested sign, if the meaning of the Englis h expression in the contested sign is also perceived. For those consumers that will not grasp the meaning of the English word 'MAY’ in the contested sign, earlier signs 1) and 2) and the contested mark are not conceptually similar. In the case of earlier right
3), for the part of the public that may perceive the meaning of the non-distinc t ive English word 'TEA’ but not of the English word 'MAY', the signs are conceptually similar to a low degree as the similarity lies in a non-distinctive element. In the case of those consumers that can read the Cyrillic alphabet and understand Russian but will not grasp the meaning of the English expression 'MAY TEA’ of the contested sign, earlier sign 3) and the contested mark are not conceptually similar.
Global assessment, other arguments and conclusion
− The goods have been found partly identical and partly similar. They target the public at large, whose degree of attention during the purchase of the goods is average. The distinctive character of the earlier trade marks is considered normal.
− The signs are visually dissimilar. In the best-case scenario for the applicant, the signs are aurally similar to a very low degree and conceptually identical (in the case of earlier right 3)) or similar to a high degree (in the case of earlier rights 1) and 2)). This applies only for the part of the relevant public that is able to read Cyrillic characters and understands both Russian and English, such as a part of the public in Bulgar ia,
Estonia, Latvia and Lithuania.
− The visual and aural differences existing between the signs have a sufficie nt ly significant impact on the overall impressions of the signs to outweigh the commonalities arising from their common phonemes (if any) and concepts, so that the likelihood that consumers may associate the goods at issue with the same or economically linked undertakings can safely be excluded, even for those goods considered identical.
− Considering all the above, there is no likelihood of confusion on the part of the public. Therefore, the cancellation application must be rejected.
10 On 13 January 2022, the invalidity applicant filed an appeal against the contested decision, requesting that the decision be entirely set aside. The statement of grounds of the appeal was received on 16 March 2022.
11 In its response received on 23 June 2023, the EUTM proprietor requested that the appeal be dismissed.
Submissions and arguments of the parties
12 The arguments raised in the statement of grounds by the invalidity applicant may be summarised as follows:
− There is a likelihood of confusion for the part of the public that can read Cyrillic and has a basic knowledge of the Russian and English language. This is because, as correctly acknowledged in the contested decision, the marks are registered for identical or similar goods as well as they are aurally highly similar and conceptually identical for a part of the public. This is because the majority of the EU public, also from those living in the EU countries Bulgaria, Estonia, Latvia and Lithuania, have a
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very good knowledge of the English country and will understand the simple term 'May'.
− – The Bulgarian public is generally familiar with the Latin alphabet. Whether a word is depicted in Latin or in Cyrillic letters therefore has no real bearing on how the term will be perceived and pronounced by the relevant public. – Furthermore, Russian was taught in schools in the German Democratic Republic (GDR) from 1951 to 1990.
− – 
− This necessarily leads to a likelihood of confusion with respect to the origin of the challenged mark, namely that it comes from the same undertaking as the earlier marks. – 
− Consequently, it remains that the disputed trade mark shall be declared invalid in accordance with Article 60(1)(a) EUTMR in conjunction with Article 8(1)(b) EUTMR.
13 The arguments raised in reply to the appeal by the EUTM proprietor can be summar ised as follows:
− In parallel to this cancellation action, the invalidity applicant has filed applications for registration of the trade mark 'MAY TEA’ in English and in Latin alphabet in a number of European countries. The invalidity applicant is therefore showing a desire to aggressively expand to the detriment of Schweppes International Limited, which holds prior rights on the MAY TEA trade mark. Schweppes International Limited has filed oppositions to the registration of these trade marks on the basis of its MAY TEA trademark No 14 841 373, which is the subject of the present invalidity action. All oppositions are suspended pending the decision on the present cancellation action. The fact that the invalidity applicant has filed applications for registration of the 'MAY TEA’ trade mark in Latin alphabet and in English in several EU-countries proves that its argument in the present cancellation proceedings concerning the existence of a likelihood of confusion between the earlier trade marks in Cyrillic alphabet is of particularly bad faith.
− The contested trade mark MAY TEA is used by the company Schweppes Internatio na l Limited for tea based beverages. MAY TEA products are distributed in France, Spain, the Benelux and United Kingdom since 2016. In these countries the brand MAY TEA is well known to the public and is very successful in the soft drink sector. MAY TEA’s main and direct competitors are Lipton Ice Tea, Lipton Green Tea and Fuzetea.
− The earlier trade marks are written in Russian, in Cyrillic alphabet, which is not an official language of the European Union. Therefore, earlier trade marks are addressed to the part of the relevant public capable of reading and understanding Russian. As earlier trade marks are written in Russian, the relevant public needs to be divided in two groups for the assessment of the likelihood of confusion: the part of the relevant public able to read Cyrillic alphabet and/or speak and read Russian, and the part of the relevant public who cannot. Moreover, the first group, the relevant public able to read
Cyrillic alphabet and/or speak and read Russian must be also divided into two subgroups: the one who are able to read Cyrillic alphabet and/or speak and read Russian and English and the other who don’t speak English.
− The likelihood of confusion must be assessed on the basis of the relevant public who both read Cyrillic alphabet and speak Russian and understand English. The first group represent 5% of the European population, therefore the second group represent 95%
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of the European population and constitute a significant part of the relevant territory (Annex 1 – EUROPEANS AND THEIR LANGUAGES, SPECIAL EUROBAREMETER 386, June 2012, page 5).
− The earlier trade mark protected 'tea’ differ from the challenged 'flavoured tea-based beverages; flavoured ice tea’ and 'non-alcoholic tea flavoured beverages'. In fact, it is necessary to brew tea in hot water to make and consume a hot drink. On the contrary, the 'tea-based beverage’ of the challenged trade mark can be consumed directly and are cold drinks. Therefore, their nature and methods of use are different. End users are also different, actual and potential customers of tea intend to drink a hot beverage while end users of tea based beverages do not intend to make their drink but are looking for a refreshing and ready to drink beverages. Finally, distribution channel and sales outlet are also different, although products can both be bought in supermarkets, one is intended for grocery shops specifically selling Russian products to people wishing to buy products of this origin as demonstrated by the Applicant
(Annex A 6 to 9). On the contrary, tea-based beverage can be purchased in general supermarkets (Annex 5 – MAY TEA Sales in supermarkets). Even if these products were sold is the same sales outlet, they would not be displayed close to each other in supermarkets as one is used to make a hot beverage and the other is ready to drink and is a cold beverage. Therefore, the contested goods have different distribution channel and sales outlet. Moreover, these goods are produced in different geographical regions by different producers.
− It appears that the two signs have only two letters 'M’ and 'A’ in common on seven characters. This is clearly not sufficient to conclude that there is any visual similar it y between these signs. Moreover, the signs differ in all the remaining characters due to the different alphabets the earlier mark being written in Cyrillic and the contested sign being written in Latin.
− – 
− The additional word 'ЧАЙ’ will not affect consumers visual perception of the signs as have only the letter 'A’ in common with the verbal element 'TEA'. Moreover, this common letter is in the second place in the verbal element 'ЧАЙ’ whilst the last letter of the verbal element 'TEA’ and the two other letters of the signs are totally differe nt and in different alphabet. Consequently, the signs involved are not visually similar.
− If the signs were eventually pronounced by the relevant public, their oral perception would be completely different from the contested sign 'MAY TEA’ as the significa nt part of the relevant public will recognize that the challenged mark is an Englis h expression and thus, it will be pronounced: MEÏ – TI. On the other hand, the earlier marks will be pronounced as MAÏ – SKI (for IR 1 262 351 and IR 832 458) and MAÏ
– SKI – TCHAÏ (for IR 678 625), respectively. Consequently, for this part of the relevant public the signs are aurally dissimilar.
− For the part of the relevant public able to speak Russian or at least read Cyrillic letters, the verbal element 'МАЙСКИЙ’ will be understood as a reference to the fifth month of the Gregorian calendar.
− It should be noted that even though a part of relevant public can transliterate the Cyrillic letters in Latin alphabet, they cannot automatically understand Russian. Even if Bulgarian is written in Cyrillic alphabet, Bulgarian and Russian remains two different languages. As only 23% of Bulgarians speak Russian well enough to be able to have a conversation (EUROPEANS AND THEIR LANGUAGES, SPECIAL
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EUROBAREMETER 386, June 2012, page 21), the part of the relevant public able to understand the meaning of signs in Russian is negligible, especially as this part of the concerned public must also understand the meaning of the English terms of the contested signs.
− To compare the conceptual meaning of the signs, consumers have to transliterate the signs and translate it into their languages, before being able to understand the meaning of the signs and then compare the meanings of the contested signs.
− It seems unlikely that consumers, when choosing a product in a supermarket, would translate a sign apparently in English and another apparently in Russian into their language, in order to discover the hidden meaning of the two signs.
− As consumers have to make at least one prior intellectual effort before being able to compare the meanings of the signs, the conceptual comparison of signs is not immediate even for this part of the public able to transliterate the signs in Latin alphabet or able to understand Russian.
− As the conceptual comparison by the relevant public is not immediate, the conceptual similarity is at most very weak.
− The distinctiveness of the earlier trade marks must be seen as below average. On the other hand, the challenged MAY TEA trade mark is particularly distinctive by virtue of intensive use and reputation. MAY TEA products are distributed in France, Spain,
Benelux and United Kingdom since 2016. In these countries, the brand MAYTEA is well known to the public and is very successful in the soft drink sector (Annex 5 and Annex 6). In this respect, according to a recent survey carried out in February 2020 on the distinctive assets of MAY TEA by the Ehrenberg-Bass institute (Institute for Marketing Science) 'Distinctive asset report RTD drinks in France', the MAY TEA brand and especially the logo enjoy a high degree of public recognition ('FAME') (Annex 7). The survey clearly shows that the logo which is the contested trademark is very well known and considered unique by the consumers (> 83% Uniqueness and
35% fame).
− With respect to the goods at issue, the visual perception is more important in order to establish whether there is a likelihood of confusion.
− Russian is not an official language of the EU. Russian is spoken by 5% of the European population (Annex 1 – EUROPEANS AND THEIR LANGUAGES,
SPECIAL EUROBAREMETER 386, June 2012, page 5). Bulgarians uses the Cyrillic alphabet, but it is a different language than Russian. Moreover, Bulgarians do not speak that much Russian (23% and in decrease over the years) (Annex 1 – 
EUROPEANS AND THEIR LANGUAGES, SPECIAL EUROBAREMETER 386, June 2012, page 22). Only 3% of Europeans are able to follow the news on radio or television in Russian (Annex 1 – EUROPEANS AND THEIR LANGUAGES,
SPECIAL EUROBAREMETER 386, June 2012, page 6). Only 2% of Europeans says that they can read a newspaper or magazine article (Annex 1 – EUROPEANS AND
THEIR LANGUAGES, SPECIAL EUROBAREMETER 386, June 2012, page 6). Only 2,4% of the Europeans pupils at upper secondary level studies Russian (Annex
2 – What languages are studied the most in the EU- EUROSTAT, 25/09/2020).
− Therefore, the part of the relevant public who is able to read Cyrillic alphabet, speak Russian and English is much reduced.
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− In conclusion, considering that only 5% of the Europeans are able to speak Russian, and that the signs at issue are visually and aurally dissimilar, the likelihood of confusion should be excluded.
Reasons
14 All references made in this decision should be seen as references to the EUTMR (EU)
No 2017/1001 (OJ 2017 L 154, p. 1), codifying Regulation (EC) No 207/2009 as amended, unless specifically stated otherwise in this decision.
15 The appeal complies with Articles 66, 67 and Article 68(1) EUTMR. It is admissible.
Preliminary remarks
16 In reply to the statement of grounds, the EUTM proprietor argues, inter alia , that the contested decision incorrectly assessed the similarity of the goods at issue and puts forward arguments in order to support its claim for dissimilarity of the goods. However, since the
EUTM proprietor did not file a response seeking a decision annulling or altering the contested decision on a point not raised in the appeal in accordance with Articles 68(2) EUTMR and Article 25 EUTMDR, the EUTM proprietor’s arguments in this regard are ineffective.
17 Moreover, the EUTM proprietor’s arguments regarding the potential reputation of its challenged registration are irrelevant for the purpose of the present proceedings. The same holds true with respect to the EUTM proprietor’s allegations suggesting bad faith on the side of the invalidity applicant.
Article 60(1)(a) EUTMR in conjunction with Article 8(1)(b) EUTMR
18 Pursuant to Article 60(1)(a) EUTMR in conjunction with Article 8(1)(b) EUTMR, upon an application for a declaration of invalidity by the proprietor of an earlier trade mark, an EUTM shall be declared invalid if, because of its identity with, or similarity to, the earlier trade mark and, cumulatively, the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.
19 According to Article 8(1)(b) EUTMR, the trade mark applied for shall not be registered if, because of its identity with, or similarity to, an earlier trade mark, and the identity or similarity of the goods or services covered by the two trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.
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21 The invalidity applicant claims that the conditions set out in Article 8(1)(b) EUTMR are fulfilled because, on the one hand, the goods covered by the conflicting marks are identica l or similar, as correctly assessed in the contested decision, and, on the other hand, those marks are similar given that they either mean the same or they refer to the same month, with the result that a likelihood of confusion, including a likelihood of association, would exist for at least a part of the public in the relevant territories.
22 Since the request for a declaration of invalidity was based on more earlier rights, the Board will commence its examination with respect to the earlier International trade mark registration for the word mark 'МАЙСКИЙ ЧАЙ’ No 678 625 designating Czech Republic, Germany, France, Latvia, Poland, Slovakia ('earlier mark 3').
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The relevant public
23 In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods and services concerned. – --
24 As correctly held in the contested decision and not disputed by the parties, the goods at issue are aimed at public at large whose level of attention is average.
25 Since the earlier mark is an International trade mark registration designating the Czech
Republic, Germany, France, Latvia, Poland, Slovakia, the relevant territory for the assessment of the likelihood of confusion is the territory of those Member states.
26 – -
27 Accordingly, the Board will focus its assessment on the part of the Latvian part of the EU public who, as it will be further explained below, will directly associate 'МАЙСКИЙ ЧАЙ’ with 'MAY TEA'. – 
Comparison of the marks
28 --
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30 The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. – 
31 The signs to be compared are:

МАЙСКИЙ ЧАЙ

Contested sign Earlier mark
32 The contested sign is a figurative mark consisting of the realistic image of a bottle with a black bottle cap filled with an orange liquid. It bears a label with drawings of leaves and peaches and, in the center, the terms 'MAY’ and 'TEA', written in upper-case letters on two lines inside a black background. On the upper side of the label there is a small teapot in black.
29/08/2023, R 73/2022-1, M AY TEA (fig.) / М АЙСКИЙ ЧАЙ et al.

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33 On the other hand, the earlier mark is a word mark made up of two terms written in Cyrillic, namely 'МАЙСКИЙ’ and 'ЧАЙ'.
34 As regards the contested sign, as correctly held in the contested the verbal element 'MAY’ will be perceived by the relevant public, including average Latvian consumer under focus, as an English word referring to the fifth month of the year. This being said, the Board endorses the contested decision undisputed finding that the term 'MAY’ is normally distinctive with respect to the goods at issue.
35 The term 'TEA’ also belongs to a basic commonly used English vocabulary, commonly used throughout the EU and thus, the contested decision was right in assuming that it will be understood as such by the relevant public, including by average consumers in Latvia. Bearing in mind that the relevant goods are tea beverages, this verbal element was correctly found non-distinctive by the contested decision.
36 With regard to the graphic representation of the contested sign, in principle, when signs consist of both verbal and figurative components, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. --- This rule applies to the contested mark, where the verbal elements are clearly legible, and the label background with representation of the bottle plays a role of enhancing the importance of the verbal elements. Moreover, the figurative devices in the shape of peaches, teapot or leaves are either purely decorative or directly linked to characteristics of the goods, such as taste of peach or teapot, a traditional way to prepare tea.
37 As regards the earlier mark, the verbal elements 'МАЙСКИЙ ЧАЙ’ (in translitera ted form: 'MAYSKIY TCHAI') will be understood as having the same meaning as the basic English word combination 'MAY TEA’ at least by a part of the relevant public under focus. The same findings reached for the verbal elements 'MAY TEA’ in the contested mark are applicable mutatis mutandis to the earlier marks in the case that those meanings are perceived.
38 The EUTM proprietor argues that it is unlikely that the relevant public speaks both Englis h and Russian. Nevertheless, it is well known that English and Russian are both foreign languages that are spoken and understood in some parts of the European Union (e.g. in the
Baltic states), even though Russian is not an EU language. – As regards the meaning of the contested mark which is composed of basic English words it is beyond any doubt that 'MAY TEA’ will be understood as such by the relevant public under focus. Bearing in mind the at least basic knowledge of both of these languages, it must be concluded that in some EU territories, in particular in Latvia here under focus, both the consumers that speak
Russian as first foreign language but only have basic knowledge of English terms and the consumers that speak English as first foreign language but only have basic notions of Russian, will understand both trade marks as 'May Tea'.
39 – -
40 Visually, although the verbal elements 'МАЙСКИЙ ЧАЙ’ in the earlier mark and the verbal elements 'MAY TEA’ in the contested sign share a few of their letters (to the extent that some of the Cyrillic and Latin characters look the same, or essentially the same), with the exception of the first two letters 'MA’ respectively, the remaining coincid ing characters are present in a different order and position within the verbal elements of the respective signs, which also have a different structure since the verbal element of the earlier mark is made up of a longer word followed by a shorter word whereas in the case of the contested sign it rather consists of two relatively short verbal elements. Furthermore, the signs also differ in the stylisation of the contested mark.
29/08/2023, R 73/2022-1, M AY TEA (fig.) / М АЙСКИЙ ЧАЙ et al.

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41 Overall, the signs are not visually similar, as correctly held in the contested decision.
42 Aurally, the earlier mark will be pronounced as /Maiskii Tchai/ whereas the contested sign will be pronounced according to the English pronunciation rules. Therefore, taking all the above into account, overall the signs are aurally similar only to a low degree, if any.
43 Conceptually, for the part of the public under focus, i.e. part of the Latvian public that understands both Russian and English, the mark applied for 'MAY TEA’ in Latin script, will be understood as the literal English translation of the earlier mark 'МАЙСКИЙ ЧАЙ', in Cyrillic script.
44 As a result, the signs convey exactly the same concept of 'MAY TEA', hence, conceptually both signs will be perceived identically, while the different script merely indicates that the earlier mark is more specifically addressed to the EU public that understands Russian, while the mark applied for is adapted for all consumers throughout the EU market. This is all the more true given their corresponding grammatical structure – namely an adjective followed by the noun which facilitates immediate discovery of the same meanings of the marks at issue. Thus, contrary to the EUTM proprietor’s allegations, in the present case, this process is straight forward. The additional figurative elements of the contested sign given their either decorative nature or low distinctive character, if any, are not capable of downplaying the semantic identity arising from the reference to the same notion of 'MAY TEA'.
Comparison of the goods
45 The invalidity applicant did not raise any arguments challenging the contested decision’s findings as to the comparison between the goods at issue.
46 In its assessment, the Cancellation Division considered, on the one hand, that the contested 'Flavoured tea-based beverages (non-medicinal); flavoured iced tea (non-medicinal)' are identical to the invalidity applicant’s 'tea’ and, on the other hand, that the contested 'non- alcoholic tea flavoured beverages’ in Class 32 are similar to the invalidity applicant’s 'tea’ in Class 30.
47 – 
Overall assessment of the likelihood of confusion
48 ---
49 Such a global assessment of a likelihood of confusion implies some interdepende nce between the relevant factors, and in particular a similarity between the trade marks and between the goods or services. ---
50 – 
51 In the present case, the contested goods were confirmed to be identical or similar to the earlier mark’s goods. The conceptual identity of the marks counterbalances therefore the aural differences and the visual impression, independently of only normal distinct i ve character of the earlier mark. Indeed, for the part of the public under focus that understands the challenged mark as the literal translation of the earlier mark’s Cyrillic script, the marks are practically identical, notwithstanding the visual and phonetic differences that are mainly due to the different languages.
52 Therefore, the Board finds it highly conceivable that relevant Latvian average consumer, while noticing the differences between the signs, will perceive the contested mark 'MAY
29/08/2023, R 73/2022-1, M AY TEA (fig.) / М АЙСКИЙ ЧАЙ et al.

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TEA’ as a variation adapted for all consumers throughout the EU market, of the earlier mark 'МАЙСКИЙ ЧАЙ’ ('MAYSKIY TCHAI') more specifically addressed to the EU public that understands Russian (or the other way around). Therefore, consumers could wrongly believe that the goods sold under the contested mark and those sold under the earlier mark are marketed by the same or economically-related undertakings producing tea and other tea-based beverages (the latter term forming integral part of both marks, though in different languages).
53 Consequently, the public targeted may regard the goods designated by the challenged mark as goods coming from the same (or related) commercial origin but adapted to and addressed to a wider territory. In this respect, the Board observes that undertakings adapt their marketing and promotion practices and trade marks in order to better adapt to the requirements of the public in specific markets, thus, the trade marks might be written in, for instance, Latin or Cyrillic characters, depending on the alphabet used and understood on the respective territories. Therefore, since in the present case, the contested sign is written in Latin characters whereas the earlier mark in Cyrillic, a significant part of relevant Latvian consumers, when seeing the marks under comparison used in this context, could easily be led to believe that the mark applied for originates from the invalid it y applicant. Thus, a substantial part of relevant average Latvian consumers is likely to confuse or at least associate the marks.
54 Therefore, the Board finds that the appeal is well founded and the request for a declaration of invalidity pursuant to Article 60(1)(c) EUTMR in conjunction with Article 8(b)
EUTMR must be upheld on the basis of the earlier international trade mark registration for the word mark 'МАЙСКИЙ ЧАЙ’ No 678 625 designating, among others, Latvia. Therefore, the contested decision must be annulled in its entirety.
55 – 
56 Accordingly, it is not necessary to assess the other earlier rights ('earlier marks 1 and 2') invoked by the invalidity applicant.
Costs
57 Pursuant to Article 109(1) EUTMR and Article 18 EUTMIR, the EUTM proprietor, as the losing party, must bear the invalidity applicant’s costs of the cancellation and appeal proceedings.
58 As to the appeal proceedings, these consist of the appeal fee of EUR 720 and the invalid it y applicant’s costs of professional representation of EUR 550.
59 As to the cancellation proceedings, the EUTM proprietor must reimburse the cancellat io n fee of EUR 630 and the invalidity applicant’s cost of professional representation of EUR 450. The total amount is fixed at EUR 2 350.
29/08/2023, R 73/2022-1, M AY TEA (fig.) / М АЙСКИЙ ЧАЙ et al.

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Order On those grounds,
THE BOARD
hereby:
1. Annuls the contested decision;
2. Declares the contested mark invalid in its entirety;
3. Orders the EUTM proprietor to bear the invalidity applicant’s costs incurred in the appeal and cancellation proceedings in the amount of EUR 2 350.
Signed Signed Signed
G. Humphreys M. Bra A. González Fernández
Registrar:
Signed
p.o. N. Granado Carpenter
29/08/2023, R 73/2022-1, M AY TEA (fig.) / М АЙСКИЙ ЧАЙ et al.