DECISION

of the First Board of Appeal

of 6 November 2019

In case R 2479/2018-1

Südwestdeutsche Salzwerke AG
Salzgrund 67 74076 Heilbronn Germany	Applicant / Appellant

represented by FRIEDRICH GRAF VON WESTPHALEN & PARTNER mbB, Kaiser-Joseph-Str. 284, 79098 Freiburg i. Br., Germany

v

Zentiva, k.s.
U kabelovny 130 102 37 Praha 10 Czech Republic	Opponent / Defendant

represented by C|K|T ČERVENKA TURKOVÁ & PARTNERS Patent, Trademark And Law Office, Anny Letenské 34/7, 120 00 Praha 2, Czech Republic

APPEAL relating to Opposition Proceedings No B 2 599 374 (European Union trade mark application No 14 320 303)

The First Board of Appeal

composed of Th. M. Margellos (Chairperson and Rapporteur), M. Bra (Member) and Ph. von Kapff (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 1 July 2015, Südsalz GmbH, after a total transfer on 12 August 2016 to Südwestdeutsche Salzwerke AG (‘the applicant’) sought to register the word mark

MONTESOL

for the following list of goods:

Class 5 - Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for humans and animals; plasters, materials for dressings; nasal drops and sprays; salt pastilles; salt for inhalation or for making a nasal rinse; bath salts for medical purposes; dermatological preparations, in particular with added salts; vitamin preparations; mineral preparations;

Class 30 - Salt, spices, spices; flour and preparations made from cereals, bread, pastry confectionery, in particular savoury pastries, pretzel sticks and other snacks, included in class 30; honey, treacle; yeast, baking-powder; mustard; vinegar, sauces(condiments); coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee.

2. The application was published on 27 July 2015.

3. On 26 October 2015, Zentiva, k.s. (‘the opponent’) filed an opposition against the registration of the published trade mark application for part of the goods, namely against all the goods in Class 5.

4. The grounds of opposition were those laid down in Article 8(1)(b) EUTMR.

5. The opposition was based on the Czech trade mark registration No 313 588 ‘MONTELAR’ (word mark) filed on 29 March 2010 and registered on 4 August 2010 for the following goods:

Class 5 - Medicines, pharmaceutical preparations for human use.

6. By decision of 17 October 2018 (‘the contested decision’), the Opposition Division refused the trade mark applied for, for all the contested goods on the grounds that there was a likelihood of confusion. It gave, in particular, the following grounds for its decision:

• The contested ‘pharmaceutical preparations’ include, as a broader category, the opponent’s ‘pharmaceutical preparations for human use’. The contested veterinary preparations are included in the opponent’s broader term ‘medicines’. The contested ‘vitamin preparations’ are included in the broad category of, or overlap with, the opponent’s ‘pharmaceutical preparations for human use’. Therefore, they are identical.

• The contested ‘salt pastilles’ may include salt pastilles for baths which can serve medical purposes. The contested ‘nasal drops and sprays; salt pastilles; salt for inhalation or for making a nasal rinse; bath salts for medical purposes; dermatological preparations, in particular with added salts’ are substances used to treat a disease, such as colds and skin diseases, and are therefore included in the broad category of, or overlap with, the opponent’s ‘pharmaceutical preparations for human use’. Therefore, they are identical.

• The contested ‘sanitary preparations for medical purposes’ are highly similar to the opponent’s ‘pharmaceutical preparations for human use’. They have the same purpose and usually coincide in producers, distribution channels and relevant public.

• ‘Dietetic food and substances adapted for medical or veterinary use; dietary supplements for humans and animals’ are substances prepared for special dietary requirements, with the purpose of treating or preventing disease in humans and animals. Bearing this in mind, their purpose is similar to that of ‘medicines’ (substances used to treat diseases) insofar as they are used to improve a patient’s medical condition. The relevant public coincides and the goods generally have the same distribution channels. Therefore, these goods are considered similar.

• The contested ‘plasters, materials for dressings’ are similar to the earlier ‘medicines’ as they all serve to treat ailments and wounds and are often used in combination towards the same curing result. Therefore, they have the same broader purpose. They can have the same distribution channels and target the same public.

• The contested ‘mineral preparations’ are similar to the opponent’s ‘medicines’ because they have the same purpose, namely to improve a patient’s health, the same distribution channels and they target the same relevant public.

• The contested ‘food for babies’ can, apart from being everyday nutrition for infants, also be defined as food which, from a medical point of view, is suitable for consumption by babies who, because of their physiology or for other medical reasons, are not yet able to consume all types of normal food. They are therefore goods which are specifically composed in order to safeguard the health of infants and young children (13/05/2015, T‑169/14, Koragel / CHORAGON, EU:T:2015:280.). Therefore, these goods and the opponent’s ‘pharmaceutical preparations for human use’ are considered similar to a low degree. The intended purpose is the same and these goods generally have the same distribution channels.

• The goods at issue are directed at the public at large and professionals with a degree of attention that varies from average to high.

• The earlier trade mark and the contested sign are visually and aurally similar to an average degree, to the extent that they coincide in the first five letters/sounds out of eight in the signs; ‘MONTE’. Since the marks are meaningless, the conceptual comparison remains neutral. The degree of distinctiveness of the earlier mark is normal.

• Considering all the above, there is a likelihood of confusion on the part of the public.

7. On 17 December 2018, the applicant filed an appeal against the contested decision, requesting that the decision be entirely set aside. The statement of grounds of the appeal was received on 18 February 2019.

8. In its response received on 26 April 2019, the opponent requested the Board to dismiss the appeal and uphold the contested decision.

Submissions and arguments of the parties

9. The arguments raised in the statement of grounds may be summarised as follows:

• The contested ‘salt pastilles’ do not include ‘salt pastilles for bath’ as this has been separately covered by ‘bath salts for medical purposes’. Furthermore, there is no reference that ‘salt pastilles’ shall be for medical purposes, unlike ‘bath slats for medical purposes’. Therefore, the statement according to which ‘salt pastilles’ shall be identical to ‘pharmaceutical preparations for human use’ is incorrect. Furthermore, the latter goods need medical approval whereas the former are sold in supermarkets and drugstores or even petrol stations. Therefore, there are different distribution channels, manufacturers, points of sales, and consumer groups.

• The contested ‘nasal drops and sprays; salt for inhalation or for making a nasal rise’ do not fall under the term ‘pharmaceutical preparations’ and therefore these goods might be considered only remotely similar.

• The contested ‘vitamin preparations’ is foodstuff. They are also not identical to ‘pharmaceutical preparations for human use’. The former are intended for nutrition, in particular for consumers who need a specific vitamin. This can be consumers who are doing sports or who are pregnant women, etc. They might need a specific vitamin if they do not consume sufficient vitamins within their diet. In contrast, ‘pharmaceutical preparations’ are aimed at ill people. Moreover, the latter goods need approval by a regulatory authority and a prescription or specialist’s recommendation. Therefore, these goods have different distribution channels, different points of sales and are directed to different groups of consumers. They are dissimilar.

• With respect to ‘sanitary preparations for medical purposes’, these goods are only remotely similar to ‘pharmaceutical preparations for human use’.

• While the contested ‘dietetic food and substances adapted for medical or veterinary use’ might have a medical background, this is not the case insofar as the contested ‘dietary supplements for humans and animals’ are concerned. The latter group are simply special food products which are not serving a medical purpose but only supplementing the normal food. They fall into the broader term of special food products and cannot be regarded as being similar with respect to preparations which are regulatory approved and intended to treat diseases. Therefore, these goods have a different distribution channels, different points of sales and are directed to different group of consumers. They are dissimilar.

• The same principles apply to ‘mineral preparations’. They are not similar to ‘medicines’. They have different purpose and group of consumers. They do not have the same distribution channels as ‘mineral preparations’ – they are sold in supermarkets whereas ‘medicines’ in pharmacies.

• Insofar as the contested ‘food for babies’ is concerned, the fact that babies cannot consume normal food does not render ‘food for babies’ similar to ‘pharmaceutical preparations for human use’. The latter goods are intended for patients suffering from a specific disease while ‘food for babies’ targets parents who are looking for a healthy diet of their babies. These goods are dissimilar.

• The level of attention of the relevant public is always high.

• The Italian word ‘MONTE’ will be understood as a reference to a mountain since it has the same equivalent word in Czech (the reference is made to the excerpt from the Google Translator filed as ‘Attachment 1’). As a result and on the account of the clear difference in the last syllable, the similarity between the marks is only very low and not average.

• Therefore, there exists only a likelihood of confusion with respect to identical goods. With respect to the goods that cannot be regarded as similar, namely ‘salt pastilles; vitamin preparations; dietary supplements for humans and animals; mineral preparations and food for babies’, there is no likelihood of confusion (neither association), especially on account of the high degree of attention of the relevant public.

10. The arguments raised in response may be summarised as follows:

• The contested ‘salt pastilles’ are commonly used in aromatherapy for aromatic baths. They often contain herbs or concentrated natural extracts from medicinal plants – essential oils. When inhaled, the active substances penetrate into the body and positively affect the overall physical condition, emotions and momentary mood. Aromatherapy improves both acute and chronic conditions, reduces the risk of complications, significantly helps with psychosomatic problems, rheumatic diseases, skin diseases, asthma and respiratory diseases and it is an effective prevention of many other diseases. It is also applied effectively in combating colds and other diseases, with disinfectant and anti-inflammatory effects, while also stimulating blood circulation. This effect is demonstrated by a number of scientific studies as well as by the practice of professional aromatherapists. Thanks to the essential oils, it is one of the most pleasant natural therapies and the most widely used method of supplementary medicine in the world. From the foregoing it is evident that ‘salt pastilles’ either serve for medical purposes and are thus complementary to ‘pharmaceutical preparations for human use’ or they are even used for treatment of diseases. Therefore, they have to be considered identical to ‘pharmaceutical preparations for human use’.

• The contested ‘nasal drops and sprays’ and ‘salt for inhalation or for making a nasal rinse’ are identical to ‘pharmaceutical preparations for human use’ of the earlier trademark. The goods at issue represent a category of goods with a medical purpose (e.g. treatment of allergies, treatment of cold). To this extent their purpose of improving a patient’s health condition coincides with the purpose of ‘pharmaceutical preparations for human use’. In addition, the end users are the same and so are the points of sale (pharmacies).

• It is generally known that the lack of certain vitamins or minerals may cause various diseases. As an example, it may serve that lack of vitamin D can cause specific problems such as a disease called rickets. Vitamin D deficiency causes the body to be unable to absorb or deposit calcium. Less commonly, rickets can be caused by a lack of calcium or phosphorus. It follows that the contested goods cannot be treated only as a foodstuff with no medical effects since they prevent and cure specific kinds of diseases. Their medical purpose, relevant public (the patients) and points of sale (pharmacies) are identical or similar to the goods of the earlier trademark.

• See Annex No 1 for an extract from the web pages of the pharmacy BENU which among others sells dietary supplements (in Czech ‘doplňky stravy’) as one category of pharmaceutical goods to the Czech consumers.

• The contested ‘food for babies’ may indeed represent food which is intended for babies who suffer from some specific disease (e.g. reflux or functional gastrointestinal disorder) and have to follow special dietary requirements with the purpose of preventing or treating a disease. These contested goods are thus similar to ‘pharmaceutical preparations for human use’ of the earlier trademark similar to ‘pharmaceutical preparations for human use’ of the earlier trade mark similar insofar as they are used for improving a patient’s health.

• The available dictionaries (electronic or paper ones) from Spanish and Italian to Czech translate the word ‘MONTE’ identically as ‘hora’ or ‘pohoří’ (please see Annex No 4 for an extract from the Czech electronic dictionary Seznam.cz with a translation of the Italian / Spanish word ‘MONTE’ into Czech). In light of the foregoing it is clear that the evidence submitted by the Appellant cannot be taken into account because it does not prove that Czech consumers would understand the word ‘MONTE’ in the alleged meaning.

Reasons

11. All references made in this decision should be seen as references to the EUTMR (EU) No 2017/1001 (OJ 2017 L 154, p. 1), codifying Regulation (EC) No 207/2009 as amended, unless specifically stated otherwise in this decision.

12. The appeal complies with Articles 66, 67 and Article 68(1) EUTMR. It is admissible.

13. The appeal is not well founded. There is a likelihood of confusion under Article 8(1)(b) EUTMR for all the contested goods in Class 5.

Article 8(1)(b) EUMTR

14. Under Article 8(1)(b) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered if, because of its similarity to the earlier trade mark and the identity or similarity of the goods covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. A likelihood of confusion includes the likelihood of association with the earlier mark.

15. According to settled case law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically linked undertakings, constitutes a likelihood of confusion within the meaning of that article (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 16-18; 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 29; 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 17).

16. In line with the same case-law, a likelihood of confusion must be assessed globally, based on how the relevant public would perceive the marks and the goods and services in question and 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; 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 16; 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18).

17. The aforementioned global assessment implies some interdependence between the factors taken into account, and in particular between the similarity of the trade marks and of the goods or services covered. Accordingly, a lesser degree of similarity between these goods or 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; 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 19).

Relevant public

18. The probable perception of the opposing trade mark from the point of view of the relevant public plays a decisive role in the examination of the likelihood of confusion. In this case, according to the case-law of the Court of Justice, the reference consumer is a reasonably well-informed and reasonably observant and circumspect average consumer of the relevant goods (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). The relevant average consumer’s level of attention in this case depends on the category of goods and services in question (13/02/2007, T-256/04, Respicur, EU:T:2007:46, § 42).

19. In line with the contested decision, in the Board’s view the goods in Class 5 that are the subject of the present appeal are directed at the public at large and professionals.

20. Nonetheless, the Board concurs with the applicant that due to the health-related nature of those goods, also the average consumer is likely to display a high degree of attention (10/12/2014, T-605/11, BIOCERT, EU:T:2014:1050, § 20-21; 12/07/2012, T-346/09, Bañoftal, EU:T:2012:368, § 51). This also applies to nutritional and food supplements (10/02/2015, T-368/13, Angipax, § 46; 02/12/2014, T-75/13, Momarid, EU:T:2014:1017, § 50).

21. Moreover, those observations also apply to ‘baby food’ which, strictly speaking, are not medicines but nevertheless constitute goods in the field of health, since, in general, they are intended to improve health. Milk for babies has added nutrients needed for babies and young children to grow, develop, fight infections or prevent reflux. If the baby is lactose intolerant or suffers from allergies, hypoallergenic formulas of milk may be given to the baby under medical supervision (see, to that effect, 26/11/2013, T-262/14, BIONECS / BIONECT, EU:T:2015:886, § 19).

22. As the opposition is based on a Czech trade mark registration, the relevant territory on the basis of which the assessment at hand must be conducted is, therefore, the Czech Republic.

Comparison of the goods

23. The assessment of the similarity of the goods and services must take into account all relevant factors, which include their nature, their purpose and method of use, and whether they are in competition with each other or complementary (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 23). Other factors may also be taken into account such as, for example, the distribution channels of the goods concerned (11/07/2007, T-443/05, Piranam, EU:T:2007:219, § 37).

24. Goods or services which are complementary are those where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking. That implies that complementary goods or services can be used together, which presupposes that they are intended for the same public (12/07/2012, T-361/11, Dolphin, EU:T:2012:377, § 48 and the case-law cited therein).

25. The reference point is whether the relevant public will perceive the goods or services concerned as having a common commercial origin (04/11/2003, T-85/02, Castillo, EU:T:2003:288, § 38) and whether consumers consider it normal that the goods or services are marketed under the same trade mark, which normally implies that a large number of producers or providers are the same (11/07/2007, T-150/04, Tosca Blu, EU:T:2007:214, § 37).

26. The goods to be assessed are the following:

27. Earlier goods

    Contested goods

    Class 5 - Medicines, pharmaceutical preparations for human use.

    Class 5 - Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for humans and animals; plasters, materials for dressings; nasal drops and sprays; salt pastilles; salt for inhalation or for making a nasal rinse; bath salts for medical purposes; dermatological preparations, in particular with added salts; vitamin preparations; mineral preparations.

    The Board endorses the Opposition Division’s finding that the contested ‘pharmaceutical preparations’ include, as a broader category, the opponent’s ‘pharmaceutical preparations for human use’ and the contested ‘veterinary preparations’ are included in the opponent’s broader term ‘medicines’. Moreover, the contested ‘dermatological preparations, in particular with added salts’ are indeed substances used to treat skin diseases and are therefore included in the broad category of, or overlap with, the opponent’s ‘pharmaceutical preparations for human use’. Therefore, all these goods are identical. The contested ‘plasters, materials for dressings’ are similar to the earlier ‘medicines’ as they all serve to treat ailments and wounds and are often used in combination towards the same curing result. Therefore, they have the same broader purpose. They can have the same distribution channels and target the same public. These findings were not contested by the applicant.

28. As regards the contested ‘nasal drops and sprays; salt for inhalation or for making a nasal rinse’ the applicant argues that these goods do not fall under the term ‘pharmaceutical preparations for human use’ and thus they are only remotely similar to the opponent’s goods. Insofar as ‘nasal drops and sprays’ are concerned, these goods may have medicated formulas. Therefore, as the Opposition Division correctly stated, these goods could not be dissected ex officio and they are considered identical to the goods covered by the earlier mark. In addition, the applicant did not provide any evidence to prove the contrary. It is settled case-law that if the goods/services designated in the earlier mark are covered by a general indication or broad category used in the contested mark, these goods and services must be considered identical since the Office cannot dissect ex officio the broad category of the applicant’s or holder’s goods and services (07/09/2006, T-133/05, Pam-Pim’s Baby-Prop, EU:T:2006:247, § 29).

29. This reasoning, however, does not apply insofar as ‘salt for inhalation or for making a nasal rinse’ is concerned, the latter often being also used in aromatherapy that contain herbs or concentrated natural extracts. Indeed, the latter goods are only similar to the opponent’s ‘pharmaceutical preparations for human use’ and not identical as found by the Opposition Division. These goods share the same intended purpose, namely that of improving health, are targeted at the same relevant public and are sold via the same distribution channels, i.e. pharmacies or healthcare stores since.

30. The applicant contests the Opposition Division’s finding that the contested ‘salt pastilles’ in Class 5 may include salt pastilles for baths which can serve medical purposes. To this extent, the Board stresses that the fact that the contested ‘salt pastilles’ does not make any reference to a potential medical purpose does not preclude that the former might not serve this purpose. Moreover, even though the Nice Classification serves merely administrative purpose, since these goods are in Class 5, this indirectly indicates that their characteristics might be medical. Indeed, as correctly noted by the opponent ‘salt pastilles’ are used in aromatherapy for aromatic baths that contain herbs or concentrated natural extracts from medicinal plants such as essential oils. Therefore they may improve both acute and chronic conditions, reduce the risk of complications, significantly help with psychosomatic problems, rheumatic diseases, skin diseases, asthma and respiratory diseases, and it may be an effective prevention for many other diseases. It is also applied effectively in combating colds and other diseases, with disinfectant and anti-inflammatory effects, while also stimulating blood circulation.

31. Therefore both ‘salt pastilles’ and ‘bath salts for medical purposes’ in Class 5 are soluble substances that are added to bath water and can have an impact on health. They are often used in certain therapies, such as in the treatment of arthritis, for example. The Board thus finds these goods similar, and not identical as the Opposition Division found, to ‘pharmaceutical preparations for human use’ insofar as they share the same intended purpose, namely that of improving health, are targeted at the same relevant public, and are sold via the same distribution channels, i.e. pharmacies or healthcare stores.

32. The applicant argues that ‘vitamin preparations’ are foodstuffs intended for nutrition purpose. The contested ‘vitamin preparations’ are products used in the health field, often for nutrition purpose. Therefore they can be found in pharmacies but also in drugstores or in different parts of supermarkets. Hence, they can coincide in their end users and distribution channels. They are complementary to the earlier ‘pharmaceutical preparations for human use’. For the above reasons, these products are deemed to be similar to a high degree and not identical as found by the Opposition Division.

33. The same reasoning applies to ‘mineral preparations’. Contrary, to the applicant’s allegations, the Board finds these goods highly similar to the opponent’s ‘pharmaceutical preparations for human use’. These goods have the same purpose, namely to improve a patient’s health, the same distribution channels, and they target the same relevant public. Furthermore, they are complementary.

34. With reference to the contested ‘sanitary preparations for medical purposes’ the Board points out that these goods go beyond cleaning or grooming, they sterilize or disinfect, or may be medicated preparations. Therefore, the contested ‘sanitary preparations for medical purposes’ must be classified as similar to the earlier mark’s ‘pharmaceutical preparations for human use’ and not highly similar as found in the contested decision. They might have the same purpose of curing an illness, although through different methods and can be used in conjunction when treating a patient. They coincide in consumers, which can be both the medical professionals and the public at large. Their distribution channels are the same until they reach the outlet were they are used or bought, in hospitals or, for the public at large in pharmacies. Their producers are pharmaceutical companies (07/11/2017, T-144/16, MULTIPHARMA / MUNDIPHARMA, EU:T:2017:783, § 30-32).

35. The applicant argues that the Opposition Division erred in applying the same line of reasoning to the contested ‘dietary supplements for humans and animals’ as to ‘dietetic food and substances adapted for medical or veterinary use’, since indeed the latter might serve a medical purpose whereas the former are simply special food products which are not serving a medical purpose but only supplementing the diet. To this extent the Board highlights that ‘dietetic food and substances adapted for medical or veterinary use’ are foodstuffs or beverages that serve a specific medical requirement and usually need to be taken under the supervision of a doctor (for example, food for diabetics). ‘Dietary supplements for humans and animals’ are not considered food in the sense of constituting a meal or snack, but they are meant to improve or supplement the nutritional value of a normal diet.

36. The contested ‘dietetic food and substances adapted for medical or veterinary use’ are used as nutritional supplements to compensate for the lack of a balanced diet. Such these goods are available in pharmacies and it is not excluded, since they are for ‘medical’ use, that they are administered by doctors or vets, respectively, such as medicines and other pharmaceutical preparations. In particular, certain dietetic substances can serve as a medicine (in a cure against an illness caused by, for example, very serious vitamin deficiency), in which case the intervention of a doctor is highly recommended. Consequently, the earlier mark’s ‘pharmaceutical preparations for human use’ and the contested ‘dietetic food and substances adapted for medical or veterinary use’ may have complementary therapeutic properties and might thus be addressed at the same patients suffering from diseases. Both could be prescribed by medical doctors (or vets) and be useful in the framework of medical treatments. They may be administered in similar ways and environments. Their distribution channels are similar since they may be obtained in the same outlets (pharmacies). There is, furthermore, some complementarity between the goods at issue, since dietetic substances are often administered within the framework of a medical treatment. To conclude, as correctly found in the contested decision, these conflicting goods are similar, because they share the purpose of improving a patient’s health problem, have the same medical nature, they share the fact that they are for medical use, and contribute to eliminating disease. Furthermore, consumers may reasonably believe that, since they are for medical use, they could be produced by the same companies and distributed through the same channels.

37. Contrary, to the applicant’s assertions, ‘dietary supplements for humans and animals’ are also similar to the opponent’s ‘pharmaceutical preparations for human use’ insofar as they may have the same nature and purpose. They usually originate from companies in the pharmaceutical industry. These goods have the same relevant public and generally also the same distribution channels. Furthermore, they may be used in conjunction to treating the same illness in a particular patient.

38. As correctly noted by the applicant the contested goods ‘food for babies’ cover a large spectrum of goods, the majority of which are everyday consumer goods and which do not have a medical purpose or properties. That said, these goods are nevertheless defined as food which, from a medical point of view, is suitable for consumption by babies who, because of their physiology or for other medical reasons, are not yet able to consume all types of normal food. They are therefore goods which are especially prepared in order to safeguard the health of infants and young children. Moreover, it cannot be ruled out that some foods for babies might be complementary to medicines which are administered to them, particularly within the context of the treatment of nutritional deficiencies in young children, in the sense that one is indispensable or important for the use of the other. Lastly, the fact that some foods for babies are sold in pharmacies cannot generally be considered to be insignificant. The distribution channels of the goods concerned may constitute a relevant factor for the purpose of the comparison of those goods. Consequently, in light of a certain connection between some ‘foods for babies’ and the earlier mark’s ‘pharmaceutical preparations for human use’ in respect of their intended purpose, their method of use and their distribution channels, it must be held that there is a low degree of similarity between those goods (07/11/2017, T-144/16, MULTIPHARMA / MUNDIPHARMA, EU:T:2017:783, § 30-32; 08/03/2017, R 720/2016-5, MeliLAX (fig.) / MOVILAX, § 32; 13/05/2015, T-169/14, Koragel / CHORAGON, EU:T:2015:280, § 55-58).

Comparison of the marks

39. The conflicting marks have to be compared visually, phonetically and conceptually. Such a comparison must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (06/10/2005, C-120/04, Thomson Life, EU:C:2005:594, § 28; 22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 25).

40. Furthermore, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more visual, phonetic or conceptual aspect (02/12/2009, T-434/07, Solvo, EU:T:2009:480, § 31; 13/09/2010, T-149/08, Sorvir, EU:T:2010:398, § 29; 14/04/2011, T-466/08, Acno focus, EU:T:2011:182, § 52).

41. The signs to be compared are:

    MONTELAR	MONTESOL
    Earlier mark	Contested sign

42. The marks under comparison, perceived as a whole, have no meaning for the relevant public. The earlier mark has a normal degree of distinctiveness. These findings were not challenged by the parties.

43. The applicant argues that the common element ‘MONTE’ in both marks, meaning ‘mountain’ will be understood by the relevant public. To this extent, the applicant furnished an excerpt of the result of the Google translation of the word ‘MONTE’ from Italian into the Czech language. It further added that ‘surprisingly, the term will be translated as ‘MONTE’ which confirms that this term will be understood in the Czech language’. In response to this result, the opponent filed several documents which question this assertion, among others, printout from the Google Translator with the same query as the opponent’s, nonetheless, presenting different result, the word ‘MONTE’ was translated into the Czech language as ‘horsky’ and not as ‘MONTE’, as claimed by the applicant. Moreover, the opponent presented an extract form the Czech dictionary Seznam.cz with a translation of the word ‘MONTE’ into the Czech language with the results ‘hora’, ‘pohori’.

44. On account of the lack of convincing evidence and arguments to the contrary, the Board cannot arrive to a different finding than the one set forth in the contested decision, namely that the element ‘MONTE’ will be perceived as meaningless at least by a significant part of the relevant public.

45. On a separate note and for the sake of completeness, the Board points out that even if the applicant’s argument were upheld, this could only affect the conceptual comparison and result in the finding of a certain degree of conceptual proximity, thus taking into account the distinctiveness issues.

46. As regards the difference between the signs ‘MONTELAR’ / ‘MONTESOL’ in their endings ‘LAR’ / ‘SOL’, such a type of difference is of lesser importance owing to its position in the end of the sign and by the fact that customers generally pay greater attention to the beginning of a mark than to its ending (17/03/2004, T-183/02 and T-184/02, Mundicor, EU:T:2004:79, § 81; 16/03/2005, T-112/03, Flexi Air, EU:T:2005:102, § 64-65). On account of the similarities in the first five out of the eight letters, placed in the same order, to which more attention is paid, the trade marks have an average degree of visual similarity.

47. Aurally, the pronunciation of the signs coincides in the sound of the first two syllables ‘MONTE’, whereas it differs in the last syllable, ‘LAR’ vs ‘SOL’, respectively. In line with the contested decision, the marks are considered aurally similar to an average degree.

48. From the semantic perspective, since neither of the signs has a meaning for the relevant public, the conceptual comparison remains neutral.

Overall assessment of the likelihood of confusion

49. The question as to whether the relevant trade circles might believe that the goods in question come from the same undertaking or, as the case may be, from economically-linked undertakings is to be assessed by a global appreciation of the factors involved – in particular, the interdependence between the similarity of the signs, similarity of the goods, and distinctive character.

50. In the present case, there is an identity and similarity (to various degrees) between the goods designated by the signs. The earlier trade mark has a normal degree of distinctiveness.

51. In order to rule out a likelihood of confusion on the part of the relevant consumer, there must be, according to settled case-law (13/11/2012, T-555/11, tesa TACK, EU:T:2012:594, § 53), a sufficient distance between the opposing signs. However, this is not the case here.

52. In light of all the foregoing considerations and applying the interdependence principle, bearing in mind, in particular, the partial identity and partial similarity to various degrees between the goods concerned and both visual and aural similarity found between the marks, contrary to the applicant’s arguments, the fact that the relevant public’s level of attention is higher than average is insufficient to exclude any likelihood of confusion. The Board stresses that even for a public with a high level of attentiveness, the fact remains that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his or her trust in the imperfect picture of them that he or she has kept in his or her mind (16/07/2014, T-324/13, Femivia, EU:T:2014:672, § 48 and the case-law cited therein).

53. There is therefore a likelihood that at least a part of the relevant public, even with a high level of attention, will assume that the goods covered by the trade marks at stake originate from the same or economically-linked undertakings. It follows that the appeal is dismissed.

Costs

54. Pursuant to Article 109(1) EUTMR and Article 18 EUTMIR, the applicant, as the losing party, must bear the opponent’s costs of the opposition and appeal proceedings.

55. As to the appeal proceedings, these consist of the opponent’s costs of professional representation of EUR 550.

56. As to the opposition proceedings, the Opposition Division ordered the applicant to bear the opposition fee of EUR 350 and the opponent’s representation costs which were fixed at EUR 300. This decision remains unaffected. The total amount for both proceedings is therefore EUR 1 200.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Orders the applicant to bear the opponent’s costs in the appeal proceedings, which are fixed at EUR 550. The total amount to be paid by the applicant in the opposition and appeal proceedings is EUR 1 200.

Signed Th. M. Margellos

Signed M. Bra

Signed Ph. von Kapff

Registrar: Signed H.Dijkema