OPPOSITION No B 2 851 585

Γεωργιοσ Ζαχαριουδακησ Και Σια Ο.Ε., Άγιος Ιωάννης, Καινούριο Χωριό, Επισκοπή, Ηράκλειο Κρήτης, 70008, Ηρακλειο, Greece (opponent), represented by KG Law Firm, Kyriakides Georgopoulos, 28, Dimitriou Soutsou Str., 115 21, Athens, Greece (professional representative)

a g a i n s t

George Theodorou General Trading Ltd, Παιανίας 5, Καμάρες, Λάρνακα, Cyprus (applicant), represented by Marios Nathanael, Makariou Avenue 88, Destalo Court Block A 3rd floor office 34, 6017, Larnaca, Cyprus (professional representative).

On 19/05/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 851 585 is upheld for all the contested goods, namely

Class 3: Sunscreen cream; Polishing creams; Creams for cellulite reduction; Aromatherapy creams; Face creams for cosmetic use; Cleansing creams; Perfumed creams; Hair creams; Moisturizers; Barrier creams; Cosmetic creams; Day creams; Washing creams (for cosmetic personal use); Anti-wrinkle cream; Suntan creams; Creams for leather; Self tanning creams [cosmetic]; Toning creams [cosmetic]; Exfoliating creams; Conditioning creams (not for the hair); Hand creams; Body cream; Non-medicated creams (not for the hair); Night creams [cosmetics]; Sun protecting creams [cosmetics]; Cosmetic nourishing creams; Cosmetic hand creams; Creams for tanning the skin; Skin cream; Anti-aging creams; Creams (Non-medicated -) for the body; Non-medicated cleansing creams; Sun-tanning creams and lotions; Cosmetic creams and lotions; Nutritional creams (Non-medicated -) (not for the hair); Skin cleansing cream; Anti-freckle creams; Fluid creams [cosmetics]; Cosmetic body scrubs; Hair protection creams; Babies' creams [non-medicated]; Make up foundations; Creams for firming the skin; Moisturising creams, lotions and gels (not for the hair); Sun creams; Scented body lotions and creams; Massage creams, not medicated; Scented body creams; Non-medicated foot cream; Bath creams (Non-medicated -); Skin lightening creams; Make-up removing creams; Hair care creams; Creams (Non-medicated -) for the eyes; Face cream (Non-medicated -); Moisturising skin creams [cosmetic]; Non-medicated skin creams; Skin care creams [cosmetic]; Skin conditioning creams for cosmetic purposes; Age spot reducing creams; Beauty balm creams; Skin care creams, other than for medical use; After-sun creams; Cosmetic creams for firming skin around eyes; Skin cleansing cream [non-medicated]; Fair complexion creams; Cleansing masks (not for the hair); Cleansing lotions (not for the hair); Tooth cleaning preparations; Facial washes [cosmetic]; Facial cleansing milk; Skin cleansing lotion; Shampoos; Body cleansing foams; Facial cleansers [cosmetic]; Skin cleansers; Teeth cleaning lotions; Skin cleansers [non-medicated]; Impregnated cleaning pads impregnated with cosmetics; Skin cleansing foams; Cleaning masks for the face; Cleaning preparations for personal use; Skin cleansers [cosmetic]; Dentifrice; Body cleaning and beauty care preparations; Exfoliants for the cleansing of the skin; Cleansing milks for skin care; Non-medicated skin clarifying lotions; Wipes impregnated with a skin cleanser; Impregnated tissues for cleaning [non-medicated, for use on the person]; Skin cleaning and freshening sprays; Disposable wipes impregnated with cleansing compounds for use on the face; Scented soaps; Cosmetic soaps; Hand soaps; Deodorant soap; Non-medicated soaps; Loofah soaps; Soaps and gels; Soaps in liquid form; Sponges impregnated with soaps; Granulated soaps; Facial soaps; Liquid bath soaps; Liquid soap used in foot bath; Skin soap; Soaps for personal use; Soaps for body care; Soaps in gel form; Perfumery and fragrances; Tooth gel; Dentifrices in the form of chewing gum; Essential oils; Essential oils of citron; Essential oils of lemon; Essential vegetable oils; Aromatics; Natural essential oils; Emulsified essential oils; Essential oils of cedarwood; Essential oils of sandalwood; Essential oils for aromatherapy use; Flavorings [flavourings] for beverages [essential oils]; Essential oils for personal use; Oils for cosmetic purposes; Essential oils and aromatic extracts; Essential oils for soothing the nerves; Ethereal essences and oils; Tissues impregnated with essential oils, for cosmetic use; Essential oils for the care of the skin; Bath lotion; Suncare lotions; Beauty lotions; Body lotions; Aromatherapy lotions (not for the hair); Cosmetic facial lotions; Baby lotions (not for the hair); Hand lotions; Tonics [cosmetic]; Self tanning lotions [cosmetic]; Lotions for cosmetic purposes; Scented body lotions; Age retardant lotion; Bath lotions (Non-medicated -); Hair lotion; Lotions for strengthening the nails; Body mask lotion; Make-up removing lotions; Eye lotions; Skin lotion; Cosmetics in the form of lotions; Moisturising body lotion [cosmetic]; Pre-moistened cosmetic wipes; Eye wrinkle lotions; Perfumed lotions [toilet preparations]; Skin toners; Cosmetic hair lotions; Toners for cosmetic use; Moist wipes impregnated with a cosmetic lotion; Non-medicated stimulating lotions for the skin; Skin care lotions [cosmetic]; Perfumed body lotions [toilet preparations]; Lotions for cellulite reduction; Non-medicated foot lotions; Sunscreen lotions; Massage oils and lotions (not for the hair); Lotions for face and body care; Moisturising skin lotions [cosmetic]; Hand lotion (Non-medicated -); Cosmetic suntan lotions; Sun tan lotion; Toning lotion, for the face, body and hands; Moist paper hand towels impregnated with a cosmetic lotion; Nail care preparations; Cakes of soap for body washing; Medicated hand wash; Soap free washing emulsions for the body.

2. European Union trade mark application No 15 950 215 is rejected for all the contested goods. It may proceed for the remaining services.

3. The applicant bears the costs, fixed at EUR 620.

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 15 950 215 for the figurative mark , namely against all the goods in Class 3. The opposition is based on European Union trade mark registration No 11 890 498 of the figurative mark and the non-registered trade mark used in the course of trade in Greece, Germany, Austria, Cyprus, United Kingdom, Belgium, Netherlands, Luxembourg, Czech Republic, Sweden, Hungary, Denmark, Latvia, Poland, Bulgaria and France. The opponent invoked Article 8(1)(a) and (b) EUTMR in relation to the registered right and Article 8(4) EUTMR in relation to the non-registered rights.

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.

1. The goods

The goods on which the opposition is based 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 lotions; Dentifrices; Cosmetics in the form of lotions; Nail polish remover (cosmetics); Cosmetic preparations for slimming purposes; Sunscreen preparations for tanning (cosmetics); Cosmetics for eyelashes; Cosmetics for tanning the skin; Cosmetics for protecting the skin from sunburn; Cosmetic lip coatings; Perfumery, essential oils, cosmetics, hair lotions; Compositions for bleaching the skin (cosmetics); Nail strengthening preparations (cosmetics); Skin whitening preparations (cosmetics); Skin whitening preparations [cosmetic]; Mineral oils (cosmetics); Cleansing milk for toilet purposes; Cleansing milk for toilet purposes; Non-medicated cosmetics; Facial washes [cosmetic]; Oils for the body [cosmetics]; Sunscreen creams (cosmetics); Sun barriers [cosmetics]; Sun blocks (cosmetics); Cosmetic rouges; Toning creams [cosmetic]; Cosmetic oils; Antiperspirants (toiletries); Cosmetics for animals; Eyeliner (cosmetics); Moisturising skin lotions [cosmetic]; Facial creams [cosmetic]; Beauty tonics for application to the body; Facial packs [cosmetic]; Skin balms (cosmetic); After-sun oils (cosmetics); Slimming aids (cosmetics), not for medical purposes; Oil for use when sunbathing (cosmetics); Sun-tanning oil (cosmetics); Cosmetic preparations for slimming purposes; Cosmetics in the form of creams; Essential oils, cosmetics; Eye liner; Cosmetic preparations for baths; Cosmetic eye pencils; Cosmetics in the form of oils; Cosmetics all for sale in kit form; Cleansing preparations for toilet purposes; Skin care creams [cosmetic]; Facial wipes impregnated with cosmetics; Cosmetic preparations for eyelashes; Cosmetic preparations for sun-tanning; Moisturising gels [cosmetic]; Suntan oils [cosmetics]; Cosmetics in the form of gel; Facial scrubs [cosmetic]; Cosmetic colours for eyes; Preparations for refilling powder compacts (cosmetics); Cosmetics in the form of powders; Moisturisers [cosmetics]; Eyebrow cosmetics; Cosmetics in the form of nail polish; Nail base coat (cosmetics); Cosmetics preparations; Cosmetics; Cosmetic moisturisers; Facial moisturizers [cosmetic]; Skin creams [cosmetic]; Nail polish removers [cosmetics]; Cosmetic lip protectors; Hair cosmetics; Cosmetics in general; Topical skin sprays for cosmetic purposes; Facial toners (cosmetics); Cosmetic hair dressing preparations; Moisturising lotions for the body [cosmetic]; Moisturising concentrates [cosmetic]; Cosmetics for personal use; Skincare cosmetics; Cosmetics in the form of eye shadow; Cosmetic preparations for slimming purposes; Cosmetic toners; Cosmetic preparations for skin care; Non-medicated beauty preparations; Sun blocking lipsticks (cosmetics); Cosmetics in the form of rouge; Oils for toilet purposes; Sun-tanning preparations [cosmetics]; Self-tanning preparations (cosmetics); Body creams [cosmetics]; Cosmetics for the treatment of dry skin; Cosmetic kits; Skin care oils (cosmetic); Toiletries; Cosmetic wipes impregnated with resin; Night creams [cosmetics]; Hair cosmetics; Antiperspirants [toiletries]; Cosmetic preparations for use as aids to slimming; Sunscreen preparations (cosmetics); Cosmetics for use on the skin; Cosmetic pads; Beauty tonics for application to the face; Cosmetic eye gels; After-sun gels (toiletries); Tissues impregnated with cosmetics; Cosmetic kits; Sun-tanning gels (cosmetics); Cosmetic preparations for cleansing the skin; Skin cleansing preparations [cosmetic]; Moisturising skin creams [cosmetic]; Skin cleansers [cosmetic]; Cosmetics for use in the treatment of wrinkled skin; Cosmetics in the form of milks; Eyebrow cosmetics; Self-tanning creams (cosmetics); Lipsticks; Sun blocking lipsticks (cosmetics); Face masks; Face and body masks; Masks for the skin (cosmetics); Facial beauty masks; Body masks; Beauty masks; Cleansing masks; Beauty masks; Moisturising masks for the skin; Beauty masks; Mud based face masks; Cleansing masks for the face; Facial exfoliators; Exfoliants; Exfoliating creams; Exfoliants for the cleansing of the skin; Body exfoliating preparations; Facial scrubs [cosmetic]; Facial exfoliating preparations; Facial peelings; Exfoliants for the care of the skin; Face scrubs (non-medicated- ); Soap for foot perspiration; Soaps for personal hygiene; Household soaps; Soaps in gel form; Soap for foot perspiration; Soaps for body care; Sponges impregnated with soaps; Soap for brightening textile; Soap for laundry use; Medicated soap; Disinfectant soap; Medicinal soaps; Non-medicated soap; Disinfectant soap; Soaps in liquid form; Personal soaps; Deodorant soap; Deodorant soap; Perfumed soaps; Soaps; Skin soap; Shaving soap; Soaps in gel form; Soaps for laundry use; Non-medicated toilet soaps; Soaps for household purposes; Soaps for the hand; Bar soap; Carbolic soap; Shampoo for vehicles; Medicated shampoos; Shampoo-conditioners; Shampoos for pets; Car shampoos; Carpet shampoo; Shampoos; Shampoos for the hair; Body shampoos; Dry shampoos; Non-medicated shampoos; Shampoos for personal use; Baby shampoo mousse; Non-medicated hair shampoos; Animal shampoos; Hair rinses (shampoo-conditioners); Baby shampoo; Non-medicated bath foams; Foam baths; Baby bath mousse; Shower gels; Shower bath gel; Hair oils; Massage oils; Flavourings made with essential oils; Essential oils for personal use; Mineral oils (cosmetics); Oils for the body [cosmetics]; Ethereal oils; Oils for cleaning purposes; Oils for cleaning purposes; Massage oils, not medicated; After-sun oils (cosmetics); Essential oils; Sun-tanning oil (cosmetics); Essential oils, cosmetics; Scented oils for burning to produce fragrance; Oils for cosmetic purposes; Distilled oils for beauty care; Oils for cosmetic purposes; Oils for cosmetic purposes; Essential oils of lemon; Essential oils for cosmetic purposes; Bath oils being hair care preparations; Oils for hair conditioning; Essential oils of lemon; Emulsified essential oils; Flavorings for beverages [essential oils]; japanese hair fixing oil (bintsuke-abura); Aromatic oils for bath; Skin care oils (cosmetic); Skin care oils (non-medicated); Essential oils for use in foodstuffs; Essential oils of citron; Aromatics [essential oil]; suntan oils for cosmetic purposes; Aromatic essential oils; Flavorings for beverages [essential oils]; Essential oils of cedarwood; Perfumery, essential oils, cosmetics, hair lotions; Non-medicated oils; Essential oils for the care of the skin; Flavour enhancers for food (essential oils); Cosmetic oils; Aromatics [essential oils]; Cake flavourings [essential oils]; Body oil; Ethereal oils; Suntan oils [cosmetics]; Essential oils for use in air fresheners; Natural oils for cleaning purposes; Sunscreen oils for protection against tanning; Baby oil; Bath oil; Hand oils (Non-medicated- ); Textile finishing oils; Natural oils for cosmetic purposes; Oils for toilet purposes; Cake flavourings [essential oils]; Oils, creams and lotions for the skin; Creams for the hair; Tanning creams; Hair cream; pre-shave creams; Cosmetic creams; Polishing creams; Non-medicated creams for the eyes; Anti-wrinkle creams; Depilatory creams; Sunscreen creams (cosmetics); Toning creams [cosmetic]; Shaving creams; Anti-freckle creams; Non-medicated foot cream; Baby creams (non-medicated); Facial creams [cosmetic]; Creams for tanning the skin; Beauty masks; Aromatherapy creams; Non-medicated creams for the body; Day creams; Skin creams; Washing creams; Creams (non-medicated) for the skin; skin creams [non-medicated]; Cream for polishing boots; Face creams for cosmetic use; Skin care creams, other than for medical use; Hand barrier creams; Cosmetic creams for skin care; Skin care creams [cosmetic]; Non-medicated creams; preservative creams for leather; Exfoliating creams; Non-medicated cream bath; Non-medicated face creams; Anti-cellulite creams; Skin creams [cosmetic]; Depilatory creams; Creams for firming the skin; Fragrant creams; Massage creams, not medicated; Under-eye enhancers; Conditioning creams; Dermatological creams (other than medicated); Creams for wrinkles; Non-medicated nourishing creams; Skin cleansing cream; Hand cream; Creams for reducing age spots; Aftershave creams; Barrier creams for the skin; Non-medicated cleansing creams; Body creams [cosmetics]; Facial cream; Face creams; Self-tanning creams; Protective creams; Self-tanning creams (cosmetics); Make-up foundation creams; Anti-aging creams; Sunscreen creams; Moisturising creams; Moisturising skin creams [cosmetic]; Cleansing creams; Non-medicated cleansing creams for the skin; Shoe cream; Non-medicated scalp treatment cream; Oils, creams and lotions for the skin; Hair protection creams; Night creams [cosmetics]; Perfumes; Aromatherapy creams; Aromatherapy lotions; Aromatherapy preparations; Sachets for perfuming linen; Fragrances for personal use; Perfumed talcum powder; Fragrance preparations; Perfume body spray; Aromatic oils for bath; Perfumery, essential oils, cosmetics, hair lotions; Perfumed tissues; Scented room sprays; Fragrance sachets; Fragrant creams; Perfumed lotions (toilet preparations); Scented water; Perfumed soaps; Perfume oils.

After a limitation the contested goods are the following:

Class 3: Sunscreen cream; Polishing creams; Creams for cellulite reduction; Aromatherapy creams; Face creams for cosmetic use; Cleansing creams; Perfumed creams; Hair creams; Moisturizers; Barrier creams; Cosmetic creams; Day creams; Washing creams (for cosmetic personal use); Anti-wrinkle cream; Suntan creams; Creams for leather; Self tanning creams [cosmetic]; Toning creams [cosmetic]; Exfoliating creams; Conditioning creams (not for the hair); Hand creams; Body cream; Non-medicated creams (not for the hair); Night creams [cosmetics]; Sun protecting creams [cosmetics]; Cosmetic nourishing creams; Cosmetic hand creams; Creams for tanning the skin; Skin cream; Anti-aging creams; Creams (Non-medicated -) for the body; Non-medicated cleansing creams; Sun-tanning creams and lotions; Cosmetic creams and lotions; Nutritional creams (Non-medicated -) (not for the hair); Skin cleansing cream; Anti-freckle creams; Fluid creams [cosmetics]; Cosmetic body scrubs; Hair protection creams; Babies' creams [non-medicated]; Make up foundations; Creams for firming the skin; Moisturising creams, lotions and gels (not for the hair); Sun creams; Scented body lotions and creams; Massage creams, not medicated; Scented body creams; Non-medicated foot cream; Bath creams (Non-medicated -); Skin lightening creams; Make-up removing creams; Hair care creams; Creams (Non-medicated -) for the eyes; Face cream (Non-medicated -); Moisturising skin creams [cosmetic]; Non-medicated skin creams; Skin care creams [cosmetic]; Skin conditioning creams for cosmetic purposes; Age spot reducing creams; Beauty balm creams; Skin care creams, other than for medical use; After-sun creams; Cosmetic creams for firming skin around eyes; Skin cleansing cream [non-medicated]; Fair complexion creams; Cleansing masks (not for the hair); Cleansing lotions (not for the hair); Tooth cleaning preparations; Facial washes [cosmetic]; Facial cleansing milk; Skin cleansing lotion; Shampoos; Body cleansing foams; Facial cleansers [cosmetic]; Skin cleansers; Teeth cleaning lotions; Skin cleansers [non-medicated]; Impregnated cleaning pads impregnated with cosmetics; Skin cleansing foams; Cleaning masks for the face; Cleaning preparations for personal use; Skin cleansers [cosmetic]; Dentifrice; Body cleaning and beauty care preparations; Exfoliants for the cleansing of the skin; Cleansing milks for skin care; Non-medicated skin clarifying lotions; Wipes impregnated with a skin cleanser; Impregnated tissues for cleaning [non-medicated, for use on the person]; Skin cleaning and freshening sprays; Disposable wipes impregnated with cleansing compounds for use on the face; Scented soaps; Cosmetic soaps; Hand soaps; Deodorant soap; Non-medicated soaps; Loofah soaps; Soaps and gels; Soaps in liquid form; Sponges impregnated with soaps; Granulated soaps; Facial soaps; Liquid bath soaps; Liquid soap used in foot bath; Skin soap; Soaps for personal use; Soaps for body care; Soaps in gel form; Perfumery and fragrances; Tooth gel; Dentifrices in the form of chewing gum; Essential oils; Essential oils of citron; Essential oils of lemon; Essential vegetable oils; Aromatics; Natural essential oils; Emulsified essential oils; Essential oils of cedarwood; Essential oils of sandalwood; Essential oils for aromatherapy use; Flavorings [flavourings] for beverages [essential oils]; Essential oils for personal use; Oils for cosmetic purposes; Essential oils and aromatic extracts; Essential oils for soothing the nerves; Ethereal essences and oils; Tissues impregnated with essential oils, for cosmetic use; Essential oils for the care of the skin; Bath lotion; Suncare lotions; Beauty lotions; Body lotions; Aromatherapy lotions (not for the hair); Cosmetic facial lotions; Baby lotions (not for the hair); Hand lotions; Tonics [cosmetic]; Self tanning lotions [cosmetic]; Lotions for cosmetic purposes; Scented body lotions; Age retardant lotion; Bath lotions (Non-medicated -); Hair lotion; Lotions for strengthening the nails; Body mask lotion; Make-up removing lotions; Eye lotions; Skin lotion; Cosmetics in the form of lotions; Moisturising body lotion [cosmetic]; Pre-moistened cosmetic wipes; Eye wrinkle lotions; Perfumed lotions [toilet preparations]; Skin toners; Cosmetic hair lotions; Toners for cosmetic use; Moist wipes impregnated with a cosmetic lotion; Non-medicated stimulating lotions for the skin; Skin care lotions [cosmetic]; Perfumed body lotions [toilet preparations]; Lotions for cellulite reduction; Non-medicated foot lotions; Sunscreen lotions; Massage oils and lotions (not for the hair); Lotions for face and body care; Moisturising skin lotions [cosmetic]; Hand lotion (Non-medicated -); Cosmetic suntan lotions; Sun tan lotion; Toning lotion, for the face, body and hands; Moist paper hand towels impregnated with a cosmetic lotion; Nail care preparations; Cakes of soap for body washing; Medicated hand wash; Soap free washing emulsions for the body.

The contested sunscreen cream; creams for cellulite reduction; aromatherapy creams; face creams for cosmetic use; cleansing creams; perfumed creams; hair creams; moisturizers; barrier creams; cosmetic creams; day creams; washing creams (for cosmetic personal use); anti-wrinkle cream; suntan creams; self tanning creams [cosmetic]; toning creams [cosmetic]; exfoliating creams; conditioning creams (not for the hair); hand creams; body cream; non-medicated creams (not for the hair); night creams [cosmetics]; sun protecting creams [cosmetics]; cosmetic nourishing creams; cosmetic hand creams; creams for tanning the skin; skin cream; anti-aging creams; creams (non-medicated -) for the body; non-medicated cleansing creams; sun-tanning creams and lotions; cosmetic creams and lotions; nutritional creams (non-medicated -) (not for the hair); skin cleansing cream; anti-freckle creams; fluid creams [cosmetics]; cosmetic body scrubs; hair protection creams; babies' creams [non-medicated]; make up foundations; creams for firming the skin; moisturising creams, lotions and gels (not for the hair); sun creams; scented body lotions and creams; massage creams, not medicated; scented body creams; non-medicated foot cream; bath creams (non-medicated -); skin lightening creams; make-up removing creams; hair care creams; creams (non-medicated -) for the eyes; face cream (non-medicated -); moisturising skin creams [cosmetic]; non-medicated skin creams; skin care creams [cosmetic]; skin conditioning creams for cosmetic purposes; age spot reducing creams; beauty balm creams; skin care creams, other than for medical use; after-sun creams; cosmetic creams for firming skin around eyes; skin cleansing cream [non-medicated]; fair complexion creams; cleansing masks (not for the hair); cleansing lotions (not for the hair); facial washes [cosmetic]; facial cleansing milk; skin cleansing lotion; shampoos; body cleansing foams; facial cleansers [cosmetic]; skin cleansers; skin cleansers [non-medicated]; impregnated cleaning pads impregnated with cosmetics; skin cleansing foams; cleaning masks for the face; cleaning preparations for personal use; skin cleansers [cosmetic]; body cleaning and beauty care preparations; exfoliants for the cleansing of the skin; cleansing milks for skin care; non-medicated skin clarifying lotions; wipes impregnated with a skin cleanser; impregnated tissues for cleaning [non-medicated, for use on the person]; skin cleaning and freshening sprays; disposable wipes impregnated with cleansing compounds for use on the face; bath lotion; suncare lotions; beauty lotions; body lotions; aromatherapy lotions (not for the hair); cosmetic facial lotions; baby lotions (not for the hair); hand lotions; tonics [cosmetic]; self tanning lotions [cosmetic]; lotions for cosmetic purposes; scented body lotions; age retardant lotion; bath lotions (non-medicated -); hair lotion; lotions for strengthening the nails; body mask lotion; make-up removing lotions; eye lotions; skin lotion; cosmetics in the form of lotions; moisturising body lotion [cosmetic]; pre-moistened cosmetic wipes; eye wrinkle lotions; perfumed lotions [toilet preparations]; skin toners; cosmetic hair lotions; toners for cosmetic use; moist wipes impregnated with a cosmetic lotion; non-medicated stimulating lotions for the skin; skin care lotions [cosmetic]; perfumed body lotions [toilet preparations]; lotions for cellulite reduction; non-medicated foot lotions; sunscreen lotions; massage oils and lotions (not for the hair); lotions for face and body care; moisturising skin lotions [cosmetic]; hand lotion (non-medicated -); cosmetic suntan lotions; sun tan lotion; toning lotion, for the face, body and hands; moist paper hand towels impregnated with a cosmetic lotion; nail care preparations; soap free washing emulsions for the body are included in the broad category of, or overlap with, the opponent’s cosmetics. Therefore, they are identical.

The contested polishing creams; creams for leather are included in the broad category of the opponent’s cleaning, polishing, scouring and abrasive preparations. Therefore, they are identical.

The contested tooth cleaning preparations; teeth cleaning lotions; dentifrice; tooth gel; dentifrices in the form of chewing gum are identical to the opponent’s dentifrices, either because they are identically listed in Class 3 of the earlier mark, or because they are included in or overlap with the goods of the earlier mark or vice versa.

The contested scented soaps; cosmetic soaps; hand soaps; deodorant soap; non-medicated soaps; loofah soaps; soaps and gels; soaps in liquid form; sponges impregnated with soaps; granulated soaps; facial soaps; liquid bath soaps; liquid soap used in foot bath; skin soap; soaps for personal use; soaps for body care; soaps in gel form; cakes of soap for body washing; medicated hand wash are included in the broad category of the opponent’s soaps. Therefore, they are identical.

The contested perfumery and fragrances are included in the broad category of the opponent’s perfumery. Therefore, they are identical.

The contested essential oils; essential oils of citron; essential oils of lemon; essential vegetable oils; aromatics; natural essential oils; emulsified essential oils; essential oils of cedarwood; essential oils of sandalwood; essential oils for aromatherapy use; flavorings [flavourings] for beverages [essential oils]; essential oils for personal use; oils for cosmetic purposes; essential oils and aromatic extracts; essential oils for soothing the nerves; ethereal essences and oils; tissues impregnated with essential oils, for cosmetic use; essential oils for the care of the skin are included in, or overlap with the broad category of the opponent’s essential oils. Therefore, they are identical.

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 are directed at the public at large. The degree of attention is average.

3. The signs

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 marks to be compared are the following:

Earlier trade mark	Contested sign

The relevant territory is the European Union.

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union 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.

Since both marks consist of English terms, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

The earlier mark is figurative consisting of the word ‘APHRODITE’ with underneath in much smaller text the phrase ‘The Secret of Natural Beauty’. The mark is decorated by the portrait of a woman which is placed within the relatively big letter ‘O’ together with a green olive tree twig and by the use of the colours orange and brown for the verbal elements.

The contested mark is also figurative, consisting of the centrally placed word ‘APHRODITE’ with above the words ‘baths of’ and underneath the words ‘PURE COSMETICS’ both in much smaller text than the word ‘APHRODITE’. The mark is decorated by the image of a framed portrait of a woman placed on the left side of the verbal elements.

In both marks the word ‘APHRODITE’ and the portrait of a woman are the more eye-catching elements of the marks due to their prominent position and size in relation to the other verbal elements and stand out as their dominant elements.

These elements are also the more distinctive elements of the signs. Although the ancient Greek goddess Aphrodite is a symbol of beauty and love, her name or portrayal is not commonly used to describe, praise or allude to cosmetics, toiletries and cleaning preparations and therefore they are distinctive.

On the other hand, the marks’ other verbal and figurative elements are laudatory or descriptive of most of the goods in questions and, to that extent, are of a limited distinctive character. The twig of the olive tree in the earlier mark refers to the ingredient of the goods in question. The phrase ‘The Secret of Natural Beauty’ is a banal laudatory slogan which will be perceived by the English-speaking part of the public as some sort of promise that the goods will enhance your natural beauty. Likewise the words ‘baths of’ and ‘PURE COSMETICS’ of the contested sign clearly refer to the cleansing and beautifying nature of most of the goods. However, in relation to the contested polishing creams; creams for leather these elements of the contested sign do not refer or allude to characteristics of the goods and, therefore, are distinctive.

Visually, the signs coincide in the word ‘APHRODITE’ and the portrayal of a woman. The marks differ in their structure, the representation of this woman being depicted within the letter ‘O’ of the word ‘APHRODITE’ in the earlier mark and next to this word in the contested mark, as well as in the exact representation of this woman. Moreover, they differ in their additional verbal elements, namely the phrase ‘The Secret of Natural Beauty’ in the earlier mark and the words ‘baths of’ and ‘PURE COSMETICS’ in the contested sign. However, considering that both device elements represent a portrayal of a classic Greek beauty and that the differentiating verbal elements are depicted in a relatively small and ordinary font in a secondary position vis-à-vis the more eye-catching verbal and figurative elements, the relevant public will rather notice the similarities in their dominant elements which for the majority of the goods are also the more distinctive elements. Therefore, overall the marks are visually similar to an average degree.

Aurally, the marks coincide in the sound of their dominant verbal element ‘APHRODITE’. They differ in their additional verbal elements, namely the phrase ‘The Secret of Natural Beauty’ in the earlier mark and the words ‘baths of’ and ‘PURE COSMETICS’ in the contested sign. However, the banal slogan in the earlier mark and the description ‘PURE COSMETICS’ in the contested sign are not likely to be pronounced due to their secondary position within the marks (03/07/2013, T‑206/12, LIBERTE american blend, EU:T:2013:342 and 03/06/2015, joined cases T‑544/12, PENSA PHARMA, EU:T:2015:355 and T‑546/12, pensa, EU:T:2015:355). Moreover, in relation to the majority of the products they will be perceived as a banal slogan or indication of their cleansing and beatifying nature. On the other hand, the additional words baths of in the contested sign, in spite of their smaller size, are likely to be pronounced since together with the word ‘APHRODITE’ they form a logical conceptual unit. Therefore, also considering their limited distinctiveness in relation to the majority of the goods, overall the marks are at least similar to an average degree.

Conceptually, the applicant argues that the marks convey a different meaning since the contested mark refers to a place, namely baths, and the earlier mark to the beauty secrets of Aphrodite. However, the additional verbal elements do not render the marks conceptually dissimilar. In fact, the slogan of the earlier mark is purely laudatory and stands on its own, rather referring to the goods covered by the earlier mark than to the word ‘APHRODITE’ above. Although it is true that the words ‘baths of’ in the contested sign form a conceptual unit with the word ‘Aphrodite’, they do not change the meaning of the word Aphrodite as indicating a Greek goddess, but add an element of possession, that is, her baths. As regards the other verbal and figurative elements, given their size and position within the marks, they will not catch or hold the consumers attention and are, therefore, of very little impact conceptually. Moreover, they both transmit the same concept of beauty and to the extent that they are of a limited distinctive character in relation to most goods, this further diminishes the conceptual impact. Therefore, considering that the marks’ dominant elements both refer to the same ancient Greek goddess, the marks are conceptually similar to an average degree.

As the signs have been found 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 in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of some weak elements in the mark, as stated above in section c) of this decision.

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 (eleventh recital of the EUTMR). 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).

Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular, similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods or services may be offset by a lower degree of similarity between the marks, and vice versa (see to that effect, 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).

As has been concluded above, the marks in dispute have been found to be visually, aurally and conceptual similar to an average degree for the English speaking part of the public due to the coincidences in their dominant elements – the word ‘APHRODITE’ and her portrayal -, being visually highly similar and conceptually identical. The contested goods in Class 3 were found identical to those of the earlier mark and are directed at the public at large whose level of attention is average. Furthermore, the earlier mark enjoys a normal degree of distinctiveness.

Also 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).

Therefore, in an overall assessment, the Opposition Division concludes that the relevant consumers are likely to confuse the marks or believe that the goods in question come from the same undertaking or, as the case may be, economically linked undertakings.

Considering all the above, there is a likelihood of confusion on the part of the English-speaking part of the public. As stated above in section c) 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 European Union trade mark registration No 11 890 498. It follows that the contested trade mark must be rejected for all the contested goods.

Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other grounds of the opposition, namely Article 8(1)(a) and Article 8(4) EUTMR.

COSTS

According to Article 109(1) EUTMR, 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 Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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

Pedro JURADO MONTEJANO

Adriana VAN ROODEN

Katarzyna ZANIECKA

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.