Decision on Opposition No B 2 792 110 page: 7 of 12
or ‘nutriment’ – ‘any material providing nourishment’. This element is likely to be
perceived as weak for part of the relevant goods.
However, this element is not meaningful in certain other territories, for example, in
those countries where Romance languages are not understood. Consequently, the
Opposition Division finds it appropriate to focus the comparison of the signs on the
Bulgarian- and Lithuanian-speaking part of the public.
The verbal elements ‘NUTRADERM’ and ‘NUTRASKIN’ of the marks under
comparison have no meanings as a whole for the public in the relevant territory.
However, the Court has held that, although the average consumer normally
perceives a mark as a whole and does not proceed to analyse its various details,
when perceiving a word sign, they will break it down into elements which, for them,
suggest a specific meaning or which resemble words known to them (13/02/2007,
T-256/04, Respicur, EU:T:2007:46, § 57). Therefore, the element ‘DERM’, included at
the end of the earlier mark, may be perceived by a part of the relevant consumers as
referring to skin, as the prefix ‘DERM-’ is widely understood as a prefix referring to
skin and forms words such as ‘dermatology’, ‘dermatitis’, etc. in most of the
European Union languages (e.g. ‘дерматология’, transliterated as ‘dermatologia’,
and ‘дерматит’, transliterated as ‘dermatit’ in Bulgarian, or ‘dermatologija’ and
‘dermatitas’ in Lithuanian). Bearing in mind that the relevant goods of the earlier mark
are cosmetics and dermatological preparations, which can be used on the skin
and/or have an effect on its condition, as well as dietary supplements and medical
devices which could have properties or use related to skincare, it is considered that
this element is weak for these goods.
Nevertheless, considering that in the present case ‘DERM’ is not used as a prefix but
is situated at the end of the word and is preceded by a meaningless term for the
public taken into account, the Opposition Division considers that a relevant part of the
general public will not dissect it from the element ‘NUTRADERM’. In any event, the
sole element of the mark, ‘NUTRADERM’, as a whole is an invented word with no
straightforward meaning in relation to the goods at issue. Therefore, its
distinctiveness is average.
As for the contested sign, ‘NUTRASKIN’, the relevant public will perceive it as a
whole as a meaningless verbal element with an average distinctiveness, as none of
its constituent parts convey a meaning for that public.
The figurative element of the contested sign will be perceived as a stylised flower and
is of average distinctiveness in relation to the relevant goods, as it does not describe
or evoke any of their characteristics. Nevertheless, it should be noted that when
signs consist of both verbal and figurative components, in principle, the verbal
component of the sign usually has a stronger impact on the consumer than the
figurative component. This is because the public does not tend to analyse signs and
will more easily refer to the signs in question by their verbal element than by
describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace,
EU:T:2005:289, § 37).
The contested sign has no elements that could be considered clearly more dominant
(visually eye-catching) than other elements.
Visually, the signs coincide in the sequence of letters ‘NUTRA’, present identically at
the beginning of both marks. Consumers generally tend to focus on the beginning of