Decision on Opposition No B 2 837 915 page: 7 of 9
public, but also, among others, the Polish, Spanish, French, Italian, Portuguese and
Romanian public, since said term is identical or highly similar to the equivalent word
in these languages, ‘zero’ (‘cero’, ‘zéro’ and ‘zero’) having the same meaning
(09/02/2017, T-106/16, ziro, ECLI:EU:T:2017:67, §47). Bearing in mind the goods at
stake, this element has a normal distinctiveness. The remaining element of the mark,
namely ‘TOX’ has no meaning and so its distinctiveness in relation to the goods
concerned should be also seen as normal. In light of the foregoing, the earlier mark
has no element which could be perceived more distinctive than the other.
It cannot be excluded that for part of the public, e.g. the Bulgarian part of the relevant
public, the term ‘ZERO’ will not be associated with any meaning. If this is the case,
this part of the public will perceive ‘ZEROTOX’ as a whole, without artificially splitting
it up into various components. Since the element ‘ZEROTOX’ of the earlier mark
does not convey a particular meaning for this part of the relevant public, its
distinctiveness should be seen as normal.
Regarding the contested sign, the relevant public will dissect the terms ‘Zeo’ and
‘DETOX’, even though the former has no meaning in relation to the goods concerned
and so its distinctiveness should be seen as normal. This is not only due to the fact
that the term ‘DETOX’ conveys a meaning in relation to the goods at stake, as
referred to below, but also, and foremost, because ‘Zeo’ and ‘DETOX’ are visually
separated due to the latter being in capital letters. Insofar as the term ‘DETOX’ is
concerned, it is reasonable to assume that the relevant public throughout the EU will
associate said term with the English word ‘DETOX’ referring to ‘a process or period of
time in which one abstains from or rids the body of toxic or unhealthy substances;
detoxification’ (see Collins English Dictionary online). In relation to the goods at
issue, it indicates that they are used for ‘detox’ purposes, for example
pharmaceuticals or chemicals designed to rid the human or animal body of
poisonous substances. Therefore, it is considered a weak element and,
consequently, ‘Zeo’ is the most distinctive element of the contested sign.
Visually, the signs coincide in the sequence of letters ‘ZE(-)O(-)(-)TOX’ and to that
extent they are similar. However, they differ in both the additional third letter ‘R’ of the
earlier mark and the middle string ‘DE’ of the contested sign having no counterpart in
the earlier sign. Regarding the typeface in which the verbal elements of the contested
sign are written, their stylisation is fairly standard and will not lead the consumer’s
attention away from the elements they seem to embellish.
As a result of the above, and taking into account what has been said regarding the
distinctiveness of the elements (and components) of the signs, the signs are
considered visually similar to a low degree.
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 /ZE*O-/ and the element /-TOX/, in case of the contested sign being preceded
by the sound of the additional syllable /-DE-/. Moreover, the marks differ in the sound
of the additional third letter ‘R’ of the earlier mark. Said differences change the
intonation and slightly the length of the marks.
Taking into account what has been said above, the signs are aurally similar to a low
Conceptually, reference is made to the previous assertions concerning the semantic
content conveyed by the marks. If the element ‘ZERO’ in the earlier mark is
associated with the meaning specified above by part of the relevant public and the