Decision on Opposition No B 2 821 562 page: 2 of 5
a) The goods
The goods on which the opposition is based are the following:
Class 5: Pharmaceuticals; sanitary products; dietetic products; disinfectants;
fungicides; herbicides; intimate hygiene products; deodorants not for personal use;
medicaments; medicinal herbs, medicinal herbs based syrups, infusions, herbal tea;
capsules for medicaments, pills, tablets for pharmaceutical use; pesticides
The contested goods are the following:
Class 5: Pharmaceuticals; Chemico-pharmaceutical preparations; Veterinary
preparations and substances; Pharmaceutical preparations for veterinary use;
Nutritional supplements; Food supplements; Dietary and nutritional supplements
Pharmaceuticals are identically contained in both lists of goods.
A pharmaceutical preparation refers to any kind of medicine, that is, a substance or
combination of substances for treating or preventing disease in people or animals.
Therefore, the contested Veterinary preparations and substances; Pharmaceutical
preparations for veterinary use are included in the broader term pharmaceuticals
covered by the earlier mark. They are identical.
The contested nutritional supplements; food supplements; dietary and nutritional
supplements are included in the broad category of, or overlap with, the opponent’s
dietetic products. Therefore, they are identical.
The contested chemico-pharmaceutical preparations overlap with the opponent’s
pharmaceuticals. Therefore they are identical.
b) Relevant public — degree of attention
The average consumer of the category of products concerned is deemed to be
reasonably well informed and reasonably observant and circumspect. It should also
be borne in mind that the average consumer’s degree of attention is likely to vary
according to the category of goods or services in question.
In the present case, the goods found to be identical are directed at the public at large
and business customers with specific professional knowledge or expertise.
It is apparent from the case-law that, insofar as pharmaceutical preparations,
whether or not issued on prescription, are concerned, the relevant public’s degree of
attention is relatively high (15/12/2010, T-331/09, Tolposan, EU:T:2010:520, § 26;
15/03/2012, T-288/08, Zydus, EU:T:2012:124, § 36 and cited case-law).
In particular, medical professionals have a high degree of attentiveness when
prescribing medicines. Non-professionals also have a higher degree of attention,
regardless of whether the pharmaceuticals are sold without prescription, as these
goods affect their state of health.