OPPOSITION No B 2 949 520

Gambro Lundia AB, Magistratsvägen 16, 226 43 Lund, Sweden (opponent), represented by Annie Prat, Gambro Industries, Société par Actions Simplifiée, 7, avenue Lionel Terray, 69330 Meyzieu, France (employee representative)

a g a i n s t

Uždaroji akcinė bendrovė ‘TELEMED’, Dariaus ir Girėno g. 42, 02189 Vilnius, Lithuania (applicant), represented by Justas Vilys, Lvovo g. 25, 09320 Vilnius, Lithuania (professional representative).

On 04/07/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 949 520 is upheld for all the contested goods, namely:

Class 10: Medical and veterinary apparatus and instruments.

2. European Union trade mark application No 16 760 605 is rejected for all the contested goods. It may proceed for the remaining goods.

3. The applicant bears the costs, fixed at EUR 320.

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As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain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from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626.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 of European Union trade mark application No 16 760 605 ‘ArtiUs’ (word mark), namely against part of the goods in Class 10. The opposition is based on the following earlier rights:

• European Union trade mark registration No 15 869 761 ;

• European Union trade mark registration No 15 867 781 ‘ARTIS PHYSIO’ (word mark).

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 15 867 781 ‘ARTIS PHYSIO’ (word mark). The reason for this is that, the other earlier mark is figurative, and contains elements that will increase the dissimilarities between said mark and the contested one (see comparison of signs below).

1. The goods

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

Class 10: Medical apparatus and instruments for the treatment of renal failure.

The contested goods are the following:

Class 10: Medical and veterinary apparatus and instruments.

The contested medical apparatus and instruments include, as a broad category, the opponent’s goods. 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 apparatus and instruments overlap with the opponent’s goods and are, therefore, considered 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 are mainly directed at professionals. The attention paid by them during the purchase of the goods involved is deemed to be higher than average, due to the consequences that some of these goods can have on the health.

3. The signs

ARTIS PHYSIO	ArtiUs
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.

It cannot be totally disregarded that part of the public attributes to the words ‘ARTIS’ and/or ‘ArtiUs’ certain concepts (e.g. the Latin meaning of ‘ARTIS’, or due to the similar spelling between these words and other terms existing in some of the relevant languages), and those concepts will not be the same for these terms. However, this possibility refers to a very small part of the public and, in addition, it would be the scenario in which the signs bear more dissimilarities. Therefore, the Opposition Division considers appropriate to focus the analysis and comparison of the marks on the part of the public for which ‘ARTIS’ and ‘ArtiUs’ are meaningless, since it constitutes the best-case scenario for likelihood of confusion to arise, and covers the vast majority of consumers in the relevant public.

According to the above, for the part of the public referred to, the elements ‘ARTIS’ and ‘Artius’ are meaningless and, since they have no concept in relation to the goods involved, they are of average distinctive character.

The word ‘PHYSIO’ in the earlier mark derives from Greek ‘physi’ (nature) and means ‘natural quality’. This meaning is regularly understood by the targeted consumer, since there are several words in the languages spoken in the relevant territory that contain it as a prefix, or use it as such as an abbreviation (e.g. ‘physiological’ in English, ‘physiologisch’ in German, physiologique’ in French, ‘fysiologico’ in Italian, ‘fisiológico’ in Portuguese, ‘fizjologiczny’ in Polish, ‘fisio’, ‘fisioterapia’ and ‘fisioterapeuta’ in Spanish or ‘fysiologisk’ in Swedish, inter alia). In relation to the goods covered by the earlier mark, the element ‘PHYSIO’ is allusive of the fact that the goods are consistent with the normal functioning of an organism or that they are natural for the organism. Therefore, this element is of lower than average distinctive character for these goods, for being allusive of their characteristics, and therefore of reduced impact, since consumers focus on the most distinctive parts of the marks in order to identify the commercial origin of the goods or services they cover.

As argued by the opponent, consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. It is therefore relevant to note that, in this case, the coincidences are found at the beginnings of the marks, where consumer’s attention is focussed on the first place, and the differences at the parts of the signs that are last read and pronounced, what somehow reduces their impact.

Before comparing the marks in detail, it must be noted that the marks are word marks, and therefore the word as such is protected and not its written form. As argued by the opponent, it is irrelevant whether word marks are represented in small or capital letters, and, consequently, the difference in the signs under comparison in this regard is immaterial.

Visually and aurally, the signs coincide in the sequence of letters ‘A-R-T-I’ and the ending ‘S’ (and their sound), found in the only element forming the contested mark ‘ARTIUS’, and in the first word read and pronounced in the earlier mark ‘ARTIS PHYSIO’.

The signs differ in the additional fifth letter of the contested mark, ‘U’, and in the second word ‘PHYSIO’ of the earlier mark (and their respective sounds). These differences are found in the part of the contested sign that is read and pronounced in the last place (see reasoning above), and in the element of the earlier mark that is of lower than average distinctive character. Therefore, these differing parts are of less impact than the coincidences referred to above.

The signs are visually and aurally similar to an average degree.

Conceptually, although the public in the relevant territory will perceive the meaning of ‘PHYSIO’ in the earlier mark as explained above, the contested mark has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

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 an element of lower than average distinctive character in the mark, as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The goods compared are identical. The goods are mainly directed at professionals.. The attention paid by them during the purchase of the goods is deemed to be higher than average.

The marks are visually and aurally highly similar to an average degree and not conceptually similar.

The coincidences between the marks constitute almost the entirety of the only verbal element in the contested mark, and the most distinctive element in the earlier mark, in which it is also the first element read and pronounced. Therefore, the differing parts are of less impact than the coincidences referred to above.

The distinctiveness of the earlier mark is normal.

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). 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).

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and 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).

In this case, for all of the above, it is considered that the coincidences between the signs, together with the identity of the goods involved, are enough to outweigh their dissimilarities, and may induce at least part of the public to believe that the conflicting goods come from the same or economically-liked undertakings. Even if the public pays special attention during the purchase of the goods involved, this will not be enough as to avoid such confusion and/or association under the present circumstances.

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

The analysis and comparison above has been carried out in relation to those consumers for whom ‘ARTIS’ and ‘ArtiUs’ were perceived as meaningless terms and that, as explained, constitute the vast majority of consumers in the relevant territory. 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 15 867 781 ‘ARTIS PHYSIO’ (word mark). It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier European Union trade mark registration No 15 867 781 ‘ARTIS PHYSIO’ 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).

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. In the present case, the opponent did not appoint a professional representative within the meaning of Article 120 EUTMR and therefore did not incur representation costs.

The Opposition Division

Eva Inés PÉREZ SANTONJA

María del Carmen SUCH SANCHEZ

Marta GARCÍA COLLADO

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.