OPPOSITION DIVISION

OPPOSITION No B 2 840 497

Genea IP Holdings Pty Ltd, L2, 321 Kent St, Sydney 2000, Australia (opponent),

represented by Patent- und Rechtsanwälte Ullrich & Naumann

Partnerschaftsgesellschaft mbB, Schneidmühlstraße 21, 69115 Heidelberg,

Germany (professional representative)

a g a i n s t

Ucomfor Medical Co. Ltd., 1208 76 Jiuxin Road, Shanghai, 201615, Peoples’

Class 10: Enteral feeding pumps; apparatus for enteral feeding; tubes for

enteral feeding; flasks for parenteral nutrition; Intravenous feeding

bottles; Intravenous feeding tubes; Feeding cups for medical

purposes; bags [fitted] for use by doctors; bags [fitted] for use by

surgeons; urological instruments; urological imaging systems;

catheters for urological purposes; urological apparatus and

instruments; medical apparatus for urological purposes; surgical

apparatus and instruments; surgical devices and instruments;

surgical and wound treating equipment; surgical cutting

instruments; surgical splints; surgical instruments; surgical probes;

2. European Union trade mark application No 15 754 195 is rejected for all the

above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark

application No 15 754 195, “Garvi” (word mark). The opposition is based on

international trade mark registration No 1 277 864, “GAVI” (word mark) designating

the European Union. The opponent invoked Article 8(1)(b) EUTMR.

Decision on Opposition No B 2 840 497 page: 2 of 6

the Regulations currently in force, except where expressly indicated otherwise.

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.

Class 10: Medical apparatus, instruments and equipment; vitrification apparatus,

The contested goods are the following:

Class 10: Enteral feeding pumps; apparatus for enteral feeding; tubes for enteral

Decision on Opposition No B 2 840 497 page: 3 of 6

with each other or complementary to each other.

The contested enteral feeding pumps; apparatus for enteral feeding; tubes for enteral

feeding; flasks for parenteral nutrition; Intravenous feeding bottles; intravenous

feeding tubes; feeding cups for medical purposes; bags [fitted] for use by doctors;

bags [fitted] for use by surgeons; urological instruments; urological imaging systems;

catheters for urological purposes; urological apparatus and instruments; medical

apparatus for urological purposes; surgical apparatus and instruments; surgical

devices and instruments; surgical and wound treating equipment; surgical cutting

instruments; surgical splints; surgical instruments; surgical probes; surgical mesh;

surgical thread; surgical saws; surgical scissors; surgical headlamps; surgical cutlery;

surgical staples; surgical sutures; surgical blades; surgical knives; surgical retractors;

surgical perforators; surgical forceps; surgical masks; surgical gowns; surgical lamps;

surgical mirrors; surgical needles; surgical clips; artificial surgical implants are

and are not in competition with one another or complementary. Therefore, these

goods are dissimilar.

b) Relevant public — degree of attention

reasonably well informed and reasonably observant and circumspect. It should also

according to the category of goods or services in question.

In the present case, the goods found to be identical are directed at specialised

consumers within the medical field (e.g. doctors and medical experts) and at

Decision on Opposition No B 2 840 497 page: 4 of 6

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).

Each of the signs is composed of one word. The earlier mark consists of the word,

‘GAVI’, whereas the contested sign features the word ‘Garvi’. In addition, in the case

of word marks, it is the word as such that is protected, not its written form. Therefore,

it is irrelevant whether the word marks are depicted in lower or upper case letters, or

in a combination thereof.

however, the middle position of the differing letter in the contested mark, the signs

are visually highly similar.

Aurally, irrespective of the different pronunciation rules in different parts of the

relevant territory, the pronunciation of the signs coincides in the sound of the letters

‘GA*VI’, present identically in both signs. The pronunciation differs in the sound of the

letter ‛r’ of the contested mark. Considering, again, the middle position of the differing

sound, the signs are aurally highly similar.

Conceptually, neither of the signs has a meaning for the public in the relevant

territory. Since a conceptual comparison is not possible, the conceptual aspect does

not influence the assessment of the similarity of the signs.

of intensive use or reputation.

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distinctiveness per se. In the present case, the earlier trade mark as a whole has no

e) 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).

In the present case, the goods at issue are partly identical and partly dissimilar. They

are directed at specialised consumers whose degree of attention may vary from

average to high. The signs are visually and aurally highly similar and the conceptual

aspect does not influence the assessment of similarity of the signs. The difference

between the signs under comparison results from only one middle letter in the

contested sign, which has no counterpart in the earlier mark. In addition, account is

(22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Even consumers

It follows from the above that the contested trade mark must be rejected for the

goods found to be identical to those of the earlier trade mark.

The rest of the contested goods are dissimilar. As similarity of goods and services is

a necessary condition for the application of Article 8(1) EUTMR, the opposition based

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must

bear the fees and costs incurred by the other party. According to Article 109(3)

to bear its own costs.

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According to Article 67 EUTMR, any party adversely affected by this decision has a

right to appeal against this decision. According to Article 68 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 for