OPPOSITION No B 2 516 113

Ameos Gruppe AG, Bahnhofplatz 14, 8021 Zürich, Switzerland (opponent), represented by Grünecker Patent- und Rechtsanwälte PartG mbB, Leopoldstr. 4, 80802 Munich, Germany (professional representative).

a g a i n s t

Roberts S.R.L., Piazzale Badalocchio, 9/B, 43126 Parma, Italy (applicant), represented by Ing. Dallaglio S.R.L., Via Mazzini, 2, 43121 Parma, Italy (professional representative).

On 01/03/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 516 113 is upheld for all the contested goods.

2. Community trade mark application No 13 687 819 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against all the goods of Community trade mark application No 13 687 819. The opposition is based on Community trade mark registration No 2 516 113. The opponent invoked Article 8(1)(b) CTMR.

LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) CTMR

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.

1. The goods and services

The goods and services on which the opposition is based are the following:

Class 5: Sanitary preparations for medical purposes.

Class 10: Surgical, medical, dental and veterinary apparatus and instruments.

Class 35: Business management and business administration; office functions.

Class 42: Scientific and technological services; research and design relating thereto.

Class 43: Providing of food and drink and temporary accommodation.

Class 44: Medical services; care of the elderly and nursing home services.

Class 45: Personal and social services rendered by others to meet the needs of individuals.

The contested goods are the following:

Class 10: Medical clothing; Belts for medical purposes; Orthopedic and mobility aids; Vertebral orthopedic apparatus; Wheeled trolleys adapted for use as walking aids; Lumbar belts; Orthopedic belts; Silicone orthopedic devices; Invalid walkers; Walking frames for disabled persons; Braces for application to the human body; Medical furniture and bedding, equipment for moving patients; Stretchers [for patient transport]; Stretchers, wheeled; Ambulance stretchers; Medical stretchers; Retaining belts for restraining patients on stretchers; Medical blankets for the cooling of patients; Medical blankets for the warming of patients; Cervical pillows for medical use; Invalids’ hoists; Slings for patient lifting hoists; Hybrid beds being soft sided waterbeds [for medical use]; Hydrostatic [water] beds for medical purposes; Hospital gurneys; Patient litters in the nature of stretchers; Examination chairs specially made for medical use; Armchairs especially made for surgical purposes; Armchairs especially made for medical purposes; Chairs especially made for medical use; Baths (Hoists for assisting invalids entry into -); Invalid lifts; Hospital examination chairs; Medical patient treatment chairs.

Class 12: Mobility conveyances; Motorised buggies for the disabled and those with mobility difficulties; Wheelchairs; Invalids’ carriages; Motorised wheelchairs for the disabled and those with mobility difficulties; Electrically operated wheelchairs; Manually operated wheelchairs; Powered stand up wheelchairs.

As a preliminary remark, it is to be noted that according to Rule 2(4) CTMIR, the Nice Classification serves purely administrative purposes. Therefore, goods or services may not be regarded as being similar or dissimilar to each other simply on the grounds that they appear in the same or different classes in the Nice Classification.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 10

The contested medical clothing; braces for application to the human body; medical furniture and bedding, equipment for moving patients; stretchers [for patient transport]; stretchers, wheeled; ambulance stretchers; medical stretchers; retaining belts for restraining patients on stretchers; medical blankets for the cooling of patients; medical blankets for the warming of patients; cervical pillows for medical use; slings for patient lifting hoists; hybrid beds being soft sided waterbeds [for medical use]; hydrostatic [water] beds for medical purposes; hospital gurneys; patient litters in the nature of stretchers; examination chairs specially made for medical use; armchairs especially made for medical purposes; chairs especially made for medical use; baths (hoists for assisting invalids entry into -); hospital examination chairs; medical patient treatment chairs are included in the broad category of the opponent’s medical apparatus and instruments. Therefore, these goods are considered identical.

The contested armchairs especially made for surgical purposes are included in the broad category of the opponent’s surgical apparatus. Therefore, these goods are considered identical.

The contested belts for medical purposes; orthopedic and mobility aids; lumbar belts; orthopedic belts; vertebral orthopedic apparatus; wheeled trolleys adapted for use as walking aids; silicone orthopedic devices; invalid walkers; walking frames for disabled persons; invalids’ hoists; invalid lifts; are different types of orthopedic articles. These contested goods are similar to a low degree to the opponent’s medical apparatus and instruments, as they can have the same producers and end users. Furthermore, they are complementary.

Contested goods in Class 12

The contested mobility conveyances; motorised buggies for the disabled and those with mobility difficulties; wheelchairs; invalids’ carriages; motorised wheelchairs for the disabled and those with mobility difficulties; electrically operated wheelchairs; manually operated wheelchairs; powered stand up wheelchairs are similar to an average degree to the opponent’s medical apparatus and instruments, as they have the same purpose. They can coincide in the same public and in producer. Furthermore they are in competition.

2. 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 or similar (to different degrees) are directed at the public at large and at business customers with specific professional knowledge or expertise. The degree of attention will vary from average to higher than average, given the importance of these goods for consumers’ health.

3. The signs

AMEOS
Earlier trade mark	Contested sign

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 bearing in mind their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The unitary character of the Community trade mark means that an earlier Community trade mark can be relied on in opposition proceedings against any application for registration of a Community trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application. In the present case, the Opposition Division finds it appropriate to focus the comparison of the signs on the Italian-speaking part of the relevant public.

The earlier mark is the word mark ‘AMEOS’, written in upper case letters.

The contested sign is a figurative mark consisting of the verbal element ‘AMOS’, written in upper case letters placed within the right part of an infinity symbol on a grey background.

The marks under comparison have no elements which could be considered clearly more distinctive or more dominant (visually eye‑catching) than other elements.

Visually, the signs coincide in ‛AM*OS’. However, they differ in the additional letter, ‘E’ of the earlier mark, which has no counterpart in the contested sign. The signs also differ in the infinity symbol and the grey background of the contested sign, which have no counterpart in the earlier sign.

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; decisions of 19/12/2011, R 233/2011‑4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011‑5, Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).

Therefore, the signs are similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛AM*OS’, present identically in both signs. The pronunciation differs in the sound of the letter ‛E’ of the earlier mark, which has no counterpart in the contested sign. It is unlikely that the relevant public would pronounce the infinity symbol. Therefore, the signs are similar to an average degree.

Conceptually, the Italian-speaking public will perceive the concept of the infinity symbol in the contested sign and no concept in the earlier mark. The infinity symbol in the contested sign will convey the concept of infinity. Since the earlier sign will not be associated with any meaning, the signs are not conceptually similar.

As the signs have been found to be similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. 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 and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 8 of the CTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22). Furthermore, the average consumer normally perceives a trade mark as a whole and does not pay attention to the various details (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular, the similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 20; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 24; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

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).

As concluded above, the contested goods are identical or similar to different degrees to the goods and services of the earlier mark and target the public at large and business customers with specific professional knowledge or expertise, whose degree of attention varies from average to higher than average. Furthermore, the earlier mark enjoys a normal degree of distinctiveness and the marks in dispute are visually and aurally similar to an average degree.

Bearing in mind the abovementioned principles, the Opposition Division finds that the differences between the marks are not sufficient to safely exclude a likelihood of confusion because of their significant similarities.

Considering all the above, there is a likelihood of confusion on the part of the Italian-speaking part of the public. As stated above in section b) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Therefore, the opposition is well founded on the basis of the opponent’s Community trade mark registration No 2 516 113. It follows that the contested trade mark must be rejected for all the contested goods.

COSTS

According to Article 85(1) CTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Rule 94(3), (6) and (7)(d)(i) CTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Zuzana WALTHER

Eamonn KELLY

Jessica LEWIS

According to Article 59 CTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 CTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 800 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) CTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Article 2(30) CTMFR) has been paid.