OPPOSITION No B 2 624 370

Swiss Pharma International AG, Waldmannstrasse 8, 8001, Zürich, Switzerland (opponent), represented by Kondrat & Partners, Al. Niepodległości 223/1, 02-087, Warszawa, Poland (professional representative)

a g a i n s t

Advanced Organic Materials, S.A., Calle 14, N.507 - Polígono Industrial Pilar, 1629, Pilar - Provincia de Buenos Aires, Argentina (applicant), represented by J.M. Toro, S.L.P., Viriato, 56 - 1º izda, 28010 Madrid, Spain (professional representative).

On 07/02/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 624 370 is partially upheld, namely for the following contested goods:

Class 5: Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; foodstuffs and dietetic substances for medical or veterinary purposes; dietary supplements for humans and animals; plasters; materials for dressings; disinfectants.

2. European Union trade mark application No 14 525 521 is rejected for all the above goods. It may proceed for the remaining goods, namely the following:

Class 3: Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery; essential oils; cosmetics; hair lotion; dentifrices.

Class 5: Baby food; preparations for destroying vermin; fungicides; herbicides; material for stopping teeth, dental wax.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 14 525 521 for the word mark ‘ADVASTEROL’. The opposition is based on European Union trade mark registration No 6 775 647 and on Polish trade mark registration No 154 727, both for the word mark ‘ATORVASTEROL’. The opponent invoked Article 8(1)(b) EUTMR.

PROOF OF USE

In accordance with Article 42(2) and (3) EUTMR (in the version in force at the time of filing of the opposition, now Article 47(2) and (3) EUTMR), if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of publication of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of the trade marks on which the opposition is based.

The contested application was published on 15/09/2015. The opponent was therefore required to prove that the trade marks on which the opposition is based were put to genuine use in, respectively, the European Union and in Poland, from 15/09/2010 to 14/09/2015 inclusive.

The request was submitted in due time and is admissible as the earlier trade marks were registered more than five years prior to the relevant date mentioned above.

Furthermore, the evidence must show use of the trade marks for the goods on which the opposition is based, namely the following:

European Union trade mark registration No 6 775 647:

Class 5: Antiatheromaticum and inhibitor drugs, excluding pharmaceutical preparations containing vitamins.

Polish trade mark registration No 154 727:

Class 5: Pharmaceutical products.

According to Article 10(3) EUTMDR (in force at the time of filing the proof of use request), the evidence of use must consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods or services in respect of which it is registered and on which the opposition is based.

On 10/01/2019, in accordance with Article 10(2) EUTMDR, the Office gave the opponent until 15/03/2019 to submit evidence of use of the earlier trade marks. Following an extension request, this time limit was extended until the 15/05/2019. On 14/05/2019, within the time limit, the opponent submitted evidence of use.

The evidence to be taken into account is, in particular, the following:

 Annex 2: Printouts from the Polish Register of Medicinal Products (titled in Polish as „Charakterystyka produktu leczniczego”) for the pharmaceutical product ‘ATORVASTEROL’ (listed with different dosages: 10mg, 20mg, 40mg and 80mg). The documents are in Polish with partial translations to English. They attest that the products ‘ATORVASTEROL’ have the necessary licenses to be sold on the Polish market.

 Annex 3: Printouts from the website of the Polish company Polpharma (www.polpharma.pl), which show ‘ATORVASTEROL’ pills available for sale (in dosages: 10mg, 20mg, 40mg and 80mg).

 Annex 4: Printouts from several Polish websites of retail sellers of medicines (doz.pl, wyborcza.pl, kfd.pl, lekinfo24.pl, leki-opinie.pl, i-apteka.pl, etc.), showing the ‘ATORVASTEROL’ pharmaceutical available for sale. The printouts are dated as from 2008 until 2017; several printouts are available for 2010, 2012 and 2014. ‘ATORVASTEROL’ is defined as an oral preparation in the form of coated tablets, used in supportive therapy in cardiovascular diseases. It contains as active substance atorvastatin, a drug belonging to statins. Statins reduce the levels of lipids (mainly cholesterol) in the blood. Atorvastatin inhibits the activity of the enzyme involved in the cholesterol synthesis process, thereby reducing cholesterol synthesis and stimulates liver cells for increased uptake LDL cholesterol from blood.

 Annex 5: A report from the Polish company IQVIA (specialised in the Polish pharmaceutical market), attesting that from 2011 to 2015 (inclusive), the pharmaceutical preparation ‘ATORVASTEROL’ has sold between 1.18 and 1.49 million units per year in Poland. The ‘ATORVASTEROL’ product is included in the category marked as „C10A1 STATINS (HMG-COA RED)”, these are preparations called statins. The report is also signed by a Brand Management Expert of the company Z.F. Polpharma, SA.

 Annex 6: A vast amount of invoices, issued by the Polish company POLPHARMA S.A. and covering each of the years of the relevant period at issue (2010 to 2015). All the invoices show sales of considerable amounts of the pharmaceutical product ‘ATORVASTEROL’ to different companies with addresses in Poland. The product is sold mainly in tablets of 10mg, 20mg and 40mg and ‘ATORVASTEROL’ is mentioned as the brand of the product in the description field of all invoices.

 Annex 7: Informative sheets, in Polish, concerning ‘ATORVASTEROL’ tablets (packages of 10mg, 20mg and 40mg) and the characteristics of this medicine. ‘ATORVASTEROL’ is a prescription medicine. The opponent also enclosed images of the product as commercialised on the market:

, , , and .

The information mentioned on the above labels corresponds to the description of the products (dosage, number of pills, active substance) in the remaining documentation and in the invoices.

All the documents show that the place of use is Poland. This can be inferred from the language of the documents (‘Polish’), the currency mentioned in the invoices (‘Polish Złoty’), the extracts from the Polish Register of Medicinal Products and the addressees of the of products, all based in Poland. Therefore, the evidence relates to the relevant territory as regards the earlier Polish mark.

As regards the earlier EUTM, it must be used ‘in the Union’ (Articles 18(1) and 47(2) EUTMR). However, following the ‘Leno Merken’ judgment, Article 18(1) EUTMR must be interpreted as meaning that the territorial borders of the Member States should be disregarded when assessing whether an EUTM has been put to ‘genuine use’ in the Union (paragraph 44). In territorial terms and in view of the unitary character of the EUTM, the appropriate approach is not that of political boundaries but of market(s). Moreover, one of the aims pursued by the EUTM system is to be open to businesses of all kinds and sizes. Therefore, the size of an undertaking is not a relevant factor to establish genuine use.

Considering the size of the Polish market, the intensity of the commercial use made by the opponent and the consistent use of the sign throughout the entire relevant period, the Opposition Division deems that the use demonstrated in Poland also constitutes genuine use in the European Union.

Most of the evidence is dated within the relevant period. Some documents pre-date or post-date the relevant period, but they are clearly presented in a succession which shows a continued use of the sign on the marketplace in Poland, at least since 2008 (e.g., Annex 4 and the extracts of online availability of the medicine ‘ATORVASTEROL’ as from 2008 and up to 2017).

The documents filed, namely the invoices, the extract from the Polish Register of Medicinal Products, the market report from the company IQVIA and the printouts from several Polish websites of retailers of medicines provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use.

In addition, the evidence shows that the mark has been used in accordance with its function and as registered, since it clearly identifies the commercial origin of the pharmaceutical preparation at issue as ‘ATORVASTEROL’, on the invoices and on the packaging of the goods. The minimal stylisation of the verbal element on the packages is a standard market practice and constitutes a valid use of a word mark.

The Court of Justice has held that there is ‘genuine use’ of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (11/03/2003, C‑40/01, Minimax, EU:C:2003:145; 12/03/2003, T‑174/01, Silk Cocoon, EU:T:2003:68).

Taking into account the evidence in its entirety, the evidence submitted by the opponent is sufficient to prove genuine use of the earlier trade marks during the relevant period in the relevant territories.

As regards the earlier EUTM, bearing in mind that the antiatheromaticum and inhibitor drugs consist precisely of pharmaceuticals which act as inhibitors of cholesterol synthesis in the body’s arteries (also known as statins), it is considered that use has been proven in relation to all the goods for which the sign is registered and on which the opposition is based in Class 5 (Antiatheromaticum and inhibitor drugs, excluding pharmaceutical preparations containing vitamins).

However, as regards the earlier Polish mark, the evidence filed by the opponent does not show genuine use of the trade mark for all the goods covered by the earlier trade mark.

According to Article 47(2) EUTMR, if the earlier trade mark has been used in relation to only some of the goods or services for which it is registered it will, for the purposes of the examination of the opposition, be deemed to be registered in respect only of those goods or services.

According to case-law, when applying the abovementioned provision, the following should be considered:

…if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of sub‑categories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the sub‑category or sub‑categories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. The Court observes in that regard that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or sub‑categories.

(14/07/2005, T‑126/03, Aladin, EU:T:2005:288, § 45‑46.)

In the present case, the evidence proves use only for statins, which are pharmaceutical preparations for the treatment of cardiovascular conditions. These goods can be considered to form an objective subcategory of pharmaceutical products, namely pharmaceutical products for cardiovascular illnesses. Therefore, the Opposition Division considers that the evidence shows genuine use of the trade mark only for pharmaceutical products for cardiovascular illnesses.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

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.

a) The goods

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

European Union trade mark registration No 6 775 647:

Class 5: Antiatheromaticum and inhibitor drugs, excluding pharmaceutical preparations containing vitamins.

Polish trade mark registration No 154 727:

Class 5: Pharmaceutical products for cardiovascular illnesses.

The contested goods are the following:

Class 3: Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery; essential oils; cosmetics; hair lotion; dentifrices.

Class 5: Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; foodstuffs and dietetic substances for medical or veterinary purposes; baby food; dietary supplements for humans and animals; plasters; materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides; herbicides.

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 3

The opponent’s goods consist of statins. These are prescription pharmaceutical preparations for the treatment of cardiovascular diseases. They are a group of medicines that can help lower the level of low-density lipoprotein (LDL, often referred to as "the bad cholesterol") cholesterol in the blood.

The contested perfumery; essential oils; cosmetics; hair lotion; dentifrices; soaps; consist of are cosmetic preparations for the treatment of skin and hair, preparations for improving body odours (perfumery), for washing and skin care, and for dental care (dentifrices). These contested goods do not have the same purpose as the opponent’s goods (improving body odours or the appearance of skin, hair or teeth versus treating heart diseases). Bearing in mind the specialised nature of the opponent’s goods, it is not usual in the market that the undertakings responsible for the production of pharmaceutical preparations for the treatment of cardiovascular diseases are also responsible for producing cosmetics, hair lotions and perfumery. Even if they may be found in the same channels of distribution (e.g., a pharmacy), due to the aforementioned essential differences in nature and purpose, the public is aware that these products do not originate from the same companies. Therefore, these goods normally have different origins. Furthermore, they are neither in competition nor complementary. Therefore, these goods are considered to be dissimilar.

The contested bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations consist of preparations used for cleaning, bleaching, polishing, laundry, etc. They have no characteristic in common with the opponent’s goods. They differ in nature, purpose and usual origin. They do not target the same consumers and are neither complementary nor in competition. Therefore, they are dissimilar.

Contested goods in Class 5

The contested pharmaceutical preparations include, as a broader category, the opponent’s pharmaceutical products for cardiovascular illnesses. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested veterinary preparations overlap with the opponent’s pharmaceutical products for cardiovascular illnesses, as the latter also include cholesterol lowering pharmaceuticals used for veterinary purposes. Therefore, these categories cannot be clearly separated and are considered identical.

The contested foodstuffs and dietetic substances for medical or veterinary purposes; dietary supplements for humans and animals consist of preparations, substances and beverages prepared for special dietary requirements with the purpose of treating or preventing a disease. Bearing this in mind, their ultimate purpose and nature are similar to those of the opponent’s pharmaceutical products for cardiovascular illnesses, which are preparations used in the treatment of specific diseases, insofar as they are all chemical compounds used to treat or prevent diseases. The end-users coincide, and these products are often used in combination (e.g. supplements are used to enhance and/or support the effectiveness of the opponent’s preparations). For the above reasons, these products are considered to be similar.

The contested sanitary preparations for medical purposes have some relevant characteristics in common with the opponent’s pharmaceutical products for cardiovascular illnesses. The broad category of the contested goods includes products which have the same ultimate purpose as the earlier goods (to heal and protect the health against infections or disease) and they may be used in combination in hospitals and health clinics. They may share the same producers, such as specialised pharmaceutical undertakings or medical laboratories. They may also coincide in distribution channels and are directed at the same public (people with health problems and healthcare professionals). Therefore, these goods are found similar to at least a low degree.

The same logic applies as regards the contested disinfectants; plasters; materials for dressings. Indeed a disinfectant is 'an agent that destroys or inhibits the activity of microorganisms that cause disease' (http://www.collinsdictionary.com). The plasters and materials for dressings are used in medical interventions and wound healing and often originate from the same laboratories and pharmaceutical companies. Therefore, these goods may share the same producers and distribution channels as the opponent’s pharmaceutical products for cardiovascular illnesses. They also have a similar overall purpose to protect health and avoid infections and are directed at the same public. Therefore, even considering the specific purpose of the opponent’s goods, they are considered similar to a low degree.

However, the remaining contested goods, baby food; preparations for destroying vermin; fungicides; herbicides; material for stopping teeth, dental wax, have no relevant characteristics in common with the earlier goods (antiatheromaticum and inhibitor drugs, excluding pharmaceutical preparations containing vitamins and pharmaceutical products for cardiovascular illnesses), bearing in mind that the opponent’s goods are specific pharmaceuticals used for treatment of a particular condition (cardiovascular conditions). The treatment of cardiovascular diseases is unrelated to destroying vermin, herbicides, fungicides, food for babies or materials used in dentistry. The goods have different specific purposes and, normally, different producers and consumers. They may coincide in the channels of distribution, but this is insufficient to render them similar as the consumers are aware that many different unrelated products can be bought in pharmacies. They are not likely to be used in combination, since the treatment of heart illnesses does not usually entail the use of any such preparation (in contrast with, for example, dermatological pharmaceutical preparations, which might have a relevant connection with fungicides). In the present case, however, the goods are neither in competition nor are they complementary. Therefore, they are dissimilar.

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 or similar (to different degrees) target both the public at large and the professional public from the medical/pharmaceutical sector. Some goods in Class 5 may be sold on prescription and some over the counter without a prescription. According to case-law, the general public cannot be excluded from the relevant public, including for pharmaceuticals that require a doctor’s prescription prior to their sale to end users in pharmacies. Therefore, the relevant public for the goods in Class 5, even in relation to the specific products of the opponent (medicines for cardiovascular illnesses), comprises both the general public and health professionals, such as doctors and pharmacists. Consequently, even though the choice of those products is influenced or determined by intermediaries, a likelihood of confusion can also exist for the general public, since they are likely to be faced with those products, even if that takes place during separate purchasing transactions for each of those individual products at various times (09/02/2011, T-222/09, Alpharen, EU:T:2011:36, § 42-45; 26/04/2007, C-412/05 P, Travatan, EU:C:2007:252, § 56-63).

Insofar as the pharmaceutical preparations in Class 5, whether or not issued on prescription, are concerned, it is apparent from case-law that 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.

Nonetheless, as regards some of the contested goods, such as plasters or disinfectants, depending on the purchasing context, the public’s degree of attention may be average.

Given that the general public is more prone to confusion, the examination will proceed on this basis. Considering all the above, the degree of attention of the public will vary between average and high.

c) The signs

ATORVASTEROL	ADVASTEROL
Earlier trade marks	Contested sign

The relevant territories are the European Union (in relation to the earlier EUTM) and Poland (in relation to the earlier Polish mark).

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The signs are word marks composed of the single verbal elements, ‘ATORVASTEROL’ and ‘ADVASTEROL’, respectively.

Both signs are meaningless for the relevant general public in question. Therefore, as they convey no information or allusion as regards the relevant goods or their characteristics, their inherent distinctiveness is average.

Visually and aurally, the signs coincide in their first letter ‘A’ and in the string of letters ‘-VASTEROL’ placed identically in both marks (and in the sound of those letters). Both marks consist of a single verbal element of a highly similar length – twelve versus ten letters respectively – and they differ solely in the letters from second to fourth position in the earlier marks, ‘-TOR-’ and the second letter ‘-D-’ of the contested sign.

Despite this difference, the coincidence in all their remaining letters, ‘-VASTEROL’, as well as the fact that they begin with the same letter (‘A’) will certainly have a considerable impact for the public, also bearing in mind their highly similar lengths. Indeed, the size of the marks must be taken into consideration: while the public will more easily establish differences between shorter signs, in the case of relatively long verbal elements (as the marks at issue: twelve versus ten letters), such differences are more difficult to notice and more likely to be overlooked, even by the more attentive consumers.

Therefore, bearing in mind all the above, the signs are considered visually and aurally similar to a higher than average degree.

Conceptually, neither of the signs has a meaning for the general public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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

d) 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 marks are particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. In the present case, the earlier trade marks as a whole have no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) 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. 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).

In the present case the contested goods are partly identical and similar (to different degrees) and partly dissimilar to the opponent’s goods. The earlier marks have an average degree of inherent distinctiveness.

The signs are visually and aurally similar to a higher than average degree, as they have a highly similar length and structure, and coincide in nine letters in total, displayed identically as their initial letter (‘A-’) and their final sequence (‘-VASTEROL’).

As regards the difference established by the letters ‘-TOR-’ vs ‘-D-’ in their initial parts, it must be noted that while it is true that the initial part of verbal elements may be liable to attract the consumer’s attention more than the following parts, the difference in some of the first letters of each sign is not enough to counteract the similarity between the signs in respect of all the other letters, when they are identically displayed and make up the majority of the signs in issue (22/05/2012, T‑585/10, Penteo, EU:T:2012:251, § 67). The Opposition Division considers that this principle is fully applicable to the present case, as the difference established by the aforementioned letters of the marks is not enough to counteract the strong visual and aural similarities between them, also bearing in mind their length and the fact that their initial letter also coincides (‘A-’), which makes it more likely for such differences to go unnoticed.

Furthermore, as previously covered, both signs are meaningless for the relevant public and, consequently, do not convey any semantic content that could assist consumers in better distinguishing them.

It must be highlighted that the average consumer only rarely has the chance to make a direct comparison between the different marks, but must place his trust in the imperfect picture of them that he has kept in his mind (22/06/1999, C 342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). It should be recalled that even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

Furthermore, the global assessment of a likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Accordingly, a greater degree of similarity between the goods and services 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, § 19; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 24; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

Consequently, the Opposition Division finds that, as the general public in the relevant territories may believe that the identical and similar (including to a low degree) goods at issue come from the same undertaking or from economically-linked undertakings, there is a likelihood of confusion between the marks. This conclusion is valid even for the highly attentive consumers, in view of the interdependence principle referred above and bearing in mind that the heightened similarities between the signs. Given that a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application, there is no need to analyse the perception of the remaining part of the public.

Therefore, the opposition is partially well founded on the basis of the opponent’s European Union trade mark registration No 6 775 647 and on Polish trade mark registration No 154 727. It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to those of the earlier trade mark.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

	Ewelina SLIWINSKA		Gueorgui IVANOV		Jakub MROZOWSKI

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.