Decision on Opposition No B 2 812 751 page: 4 of 5
As the signs have been found similar in at least one aspect of the comparison, the
examination of likelihood of confusion will proceed.
d) 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
e) Global assessment, other arguments and conclusion
The goods are similar to various degrees and the degree of attention is considered
rather high, as products that affect human or animal health are concerned. The
earlier mark enjoys a normal degree of distinctiveness.
As established above, the signs are visually and aurally similar to an average degree
to the extent that they coincide in five out of a total of seven letters, namely ‘L*EXIN’.
Furthermore, as has been previously stated, the letter ‘X’ in the endings of the signs
will specifically catch consumers’ attention because it is uncommon in Hungarian.
Although this letter is contained in the endings, ‘EXIN’, it cannot be excluded that
these coinciding strings may be remembered more clearly than other parts of the
signs. Furthermore, account is taken of the fact that average consumers rarely have
the chance to make a direct comparison between different marks, but must trust in
their imperfect recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik,
EU:C:1999:323, § 26). Even consumers who pay a high degree of attention need to
rely on their imperfect recollection of trade marks (21/11/2013, T-443/12, ancotel,
EU:T:2013:605, § 54). In the present case, it also has to be borne in mind that both
signs exclusively consist of verbal elements (with minor stylisation of the contested
sign) with no particular meaning that will help the relevant consumer differentiate
In addition, 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
principle of interdependence also applies to the goods found to be similar to a low
degree, as the visual and aural similarities between the signs in question are still
Considering all the above, there is a likelihood of confusion on the part of the public.
Therefore, the opposition is well founded on the basis of the opponent’s Hungarian
trade mark registration No 115 748. It follows that the contested trade mark must be
rejected for all the contested goods.