OPPOSITION No B 2 895 467

Red Bull GmbH, Am Brunnen 1, 5330 Fuschl am See, Austria (opponent), represented by Hogan Lovells, Avenida Maisonnave 22, 03003 Alicante, Spain (professional representative)

a g a i n s t

Fitness Logistic Company LLC, 155 Office Plaza DR. Suit A, 32301 Tallahassee, Florida, United States of America (applicant), represented by Newpatent, Puerto 34, 21001 Huelva, Spain (professional representative).

On 30/07/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 895 467 is upheld for all the contested goods.

2. European Union trade mark application No 16 323 313 is rejected in its entirety.

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As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain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from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626.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 all the goods of European Union trade mark application No 16 323 313 for the figurative mark . The opposition is based on, inter alia, European Union trade mark registration No 12 442 364 for the word mark ‘NO BULL’ in relation to which the opponent invoked Article 8(1)(b) EUTMR.

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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 12 442 364 for the word mark ‘NO BULL’.

1. The goods

The goods on which the opposition is based are, inter alia, the following:

Class 5: Pharmaceutical and veterinary preparations; caffeine preparations for stimulative use; dietary and nutritional supplements for endurance sports; dietary and nutritional supplements for humans; food supplements; energizing preparation; vitamin supplements; vitamin and mineral drinks and preparations; sanitary preparations for medical purposes, including fortifying and strengthening preparations, namely vitamin preparations and tonics and preparations and products containing minerals and/or vitamins and/or trace elements for health purposes; traditional Chinese medicines; medicinal infusions including herb teas; dietetic food and substances adapted for medical or veterinary use; appetite suppressants for medical purposes; chewing gum, fruit gums and sweets for medical use; food for babies; dietary supplements for humans and animals; plasters; materials for dressings; napkins for the sick; hygienic articles for women, namely sanitary towels, panty liners, tampons, sanitary pants; chemical contraceptives; material for stopping teeth; dental wax; adhesives for dentures; dental mastics; disinfectants; deodorants, other than for human beings or for animals; deodorizing room sprays; preparations for destroying vermin; fungicides; herbicides; tobacco-free cigarettes for medical purposes.

The contested goods are the following:

Class 5: Nutritional supplements; protein dietary supplements; dietary supplemental drinks; nutraceuticals for use as a dietary supplement; food supplements; vitamin supplements; vitamin and mineral supplements; nutritional supplement meal replacement bars for boosting energy; mineral nutritional supplements; dietary supplements for humans not for medical purposes; dietary supplements consisting primarily of magnesium.

The contested food supplements; vitamin supplements (mentioned twice) are identically contained in both lists of goods.

The contested nutritional supplements include as a broader category the opponent’s nutritional supplements for humans. 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 protein dietary supplements; dietary supplemental drinks; nutraceuticals for use as a dietary supplement are included in the broad category of the opponent’s dietary supplements for humans. Therefore, they are identical.

The contested mineral supplements are included in the broad category of the opponent’s mineral preparations or they overlap. Therefore, they are identical.

The contested nutritional supplement meal replacement bars for boosting energy; mineral nutritional supplements are included in the broad category of the opponent’s nutritional supplements for humans. Therefore, they are identical.

The contested dietary supplements for humans not for medical purposes; dietary supplements consisting primarily of magnesium are included in the broad category of the opponent’s dietary supplements for humans. 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 as well as at a more specialised public with specific knowledge and expertise, such as medical professionals and pharmacists.

Some of the contested goods, such as vitamins, are not only nutritional or dietary supplements, they also belong to the category of pharmaceutical preparations. It is apparent from the case-law that, insofar as pharmaceutical preparations are concerned, the relevant public’s degree of attention is relatively high, whether or not issued on prescription (judgments of 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 quoted case-law).

In particular, medical professionals have a high degree of attentiveness when prescribing medicines. With regard to non-professionals, they also show a higher degree of attention, regardless of whether the pharmaceuticals or food supplements are sold without prescription, as these goods affect their state of health.

By means of example, the Opposition Division duly notes that the Court has confirmed that the degree of attention is also higher than average for all the goods in Class 5, including nutritional supplements (10/02/2015, T-368/15, EU:T:2015:81, § 46).

3. The signs

NO BULL
Earlier trade mark	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression 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 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.

The verbal elements of the marks are meaningful English words. In this context the Opposition Division notes that if a significant part of the relevant public for the goods at issue may be confused as to the origin of the goods, this will be sufficient to establish a likelihood of confusion. It is not necessary to establish that all actual or potential consumers of the relevant goods are likely to be confused. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the relevant public who will associate the common element ‘BULL’ of both marks with ‘a male animal of the cow family’ (see Collins English Dictionary online). In light of the goods at stake, this element is normally distinctive because it has no meaning related to these goods.

As regards the figurative element placed on the top of the first letter ‘B’ of the contested sign, at least a part of the relevant public will perceive it as horns. If this is the case, this device simply reinforces the concept of the bovine animal and so is directly linked with the term ‘BULL’. For the remaining part of the public who will not see horns, this element is simply decorative and so has a reduced impact on the perception of the mark. Indeed, when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37; decisions of 19/12/2011, R 233/2011‑4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011‑5, Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).

The verbal element ‘NO’ of the earlier mark evokes the concept of prohibition and, as such, it will be understood by the relevant public. Since it is conceptually linked with the following term ‘BULL’, the distinctiveness of this element in relation to the goods at stake should be also seen as normal.

The verbal elements ‘SPORT NUTRITION’ of the contested sign will be understood by the relevant public with their natural meaning. These consumers will attach less significance to the meaning of these words, which are of a weak distinctiveness (as admitted by the applicant itself in its writ dated 22/02/2018, inter alia, page 13, ‘’(..) where two of them describe the goods filed in Class 5 ‘SPORT NUTRITION’.’’), because they refer to the characteristics of the goods at stake, namely their nutritive purpose after, before or meanwhile practicing sport. Furthermore, these elements are also secondary owing to their position and size in the contested sign. Consequently, the term ‘BULL’ is considered not only the most distinctive, but also the most dominant element of the contested sign.

Visually, the signs coincide in the term ‘BULL’, whereas they differ in the additional preceding word ‘NO’ of the earlier mark and both the graphic representation and the terms ‘SPORT NUTRITION’ of the contested sign, at least the latter being of a limited impact for the reasons set forth above.

Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the word /BULL/, whereas they differ in the sound of the first word /NO/ of the earlier mark. It is reasonable to assume that the remaining verbal elements of the contested sign, namely ‘SPORT NUTRITION’ will not be pronounced owing to their low distinctiveness and secondary position, as referred to above.

Therefore, the signs are similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As both signs will be associated with the concept of‘BULL’ (or its prohibition, no bull), they are considered similar to at least an average degree, owing to the remaining differentiating elements of the marks.

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.

According to the opponent, the earlier mark is well-known owing to the reputed element ‘BULL’. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

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.

5. Global assessment, other arguments and conclusion

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

Account must be also 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). Even consumers with 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).

As concluded above, the contested goods are identical to the earlier mark’s goods. They are directed at the public at large and at professionals whose level of attention is higher than average, meaning that consumers will be more informed and observant.

Contrary to the applicant’s opinion, the signs are visually similar to an average degree, aurally highly similar, whereas from the semantic perspective the marks are similar to at least an average degree. The earlier mark has a normal degree of distinctiveness.

The applicant argues that ‘the use of only one word in common ‘BULL’ between the trademarks in conflict cannot suppose that the trademarks are under a real risk of confusion’. However, 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 12 442 364. It follows that the contested trade mark must be rejected for all the contested goods.

Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its well-known character claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

As the earlier right European Union trade mark registration No 12 442 364 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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 ground of the opposition, namely Article 8(5) EUTMR claimed in relation to the other earlier rights invoked.

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

Carlos MATEO PÉREZ

Klaudia MISZTAL

Chantal VAN RIEL

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.