OPPOSITION No B 3 018 531

Lek Farmacevtska Druzba D.D., Verovskova 57, 1526 Ljubljana, Slovenia (opponent), represented by Boehmert & Boehmert Anwaltspartnerschaft MBB - Patentanwälte Rechtsanwälte, Kurfürstendamm 185, 10707 Berlin, Germany (professional representative)

a g a i n s t

Shenzhen Sibiono GeneTech Co., Ltd., 19 Science & Tech Middle 1st Road, Nanshan District, 310052 Shenzhen (Guangdong), China (applicant), represented by Arpe Patentes y Marcas, S.L., C/Proción, 7, Edificio América II, Portal 2, 1ºC, 28023 Madrid-Aravaca, Spain (professional representative).

On 19/02/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 018 531 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 149 221 for the figurative mark , namely against all the goods in Class 5. The opposition is based on international trade mark registration No 573 933 designating Hungary for the figurative 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.

a) The goods

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

Class 5: Pharmaceutical, veterinary and sanitary products; dietetic goods for children and the sick; plasters, materials for dressings, material for stopping teeth and dental wax; disinfectants.

The contested goods are the following:

Class 5: Medicines for human purposes; vaccines; biological preparations for medical purposes; bacterial poisons; drugs for medical purposes; capsules for medicines; pharmaceutical preparations; diagnostic preparations for medical purposes; tonics [medicines]; preparations of microorganisms for medical or veterinary use.

Some of the contested goods are identical or similar to the goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 assumed to be identical are directed at the public at large and at business customers with specific professional knowledge or expertise in the pharmaceutical field.

It is apparent from the case-law that, insofar as pharmaceutical preparations, whether or not issued on prescription, are concerned, 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).

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.

c) The signs

Earlier trade mark	Contested sign

The relevant territory is Hungary.

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).

Both signs are figurative marks consisting of a single verbal element written in fairly standard typefaces. These verbal elements do not have any particular meaning per se; however, due to the fact that the relevant public displays a higher degree of attention and that it is well known that many medicines, in particular antibiotics, end in ‘cin/in/ine’ (both generic, such as ‘amoxicillin’, ‘doxycycline’, ‘cephalexin’, ‘ciprofloxacin’, ‘clindamycin’, ‘azithromycin’ and ‘levofloxacin’, and brand names, e.g. ‘Augmentin’, ‘Levaquin’, ‘Cleocin’), the suffixes of the signs, ‘-cin/cine’, will be perceived as weak in relation to the goods at issue.

Moreover, 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.

Visually, the signs coincide in the letters ‘END’ and in the element ‘CIN’, which has been considered weak in respect of the goods at issue. However, the signs differ in their first letters, ‘L/G’, their vowels in the middle, ‘A/I’, and their endings, ‘N/E’, as well as in the use of upper case bold characters in the earlier mark and lower case (except the first letter) non-bold ones in the contested mark.

Therefore, the signs are visually similar to a low degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘END’ and in the sound of the element ‘CIN’, which is weak. The pronunciation differs in the first letters, ‘L/G’ and in the vowels in the middle, ‘A/I’. Moreover, the relevant public will pronounce the last letter of the contested sign ‘E’, leading to a different rhythm and intonation. As a consequence, the signs have a different length, due to the difference in the syllables, ‘LEN-DA-CIN/GEN-DI-CI-NE’, and therefore a different stress.

Therefore, the signs are aurally similar to a low degree.

Conceptually, although the signs as a whole do not have any meaning for the public in the relevant territory, the element ‘CIN/cine’, included similarly as a suffix in both signs, will be associated with the meaning explained above. To that extent, the signs are conceptually similar to a low degree, but this similarity will not have a significant impact, given that this element is weak.

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 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 a weak element in the mark, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

The contested goods are assumed to be identical to the opponent’s goods. The level of attention will be higher than average when choosing the relevant goods. The earlier mark is considered to have an average degree of distinctiveness.

The signs under comparison are visually, aurally and conceptually similar to a low degree. While it is true that, as the opponent argues (citing 25/03/2009, T 402/07, ARCOL / CAPOL, EU:T:2009:85, § 82, 83), ‘what matters in the assessment of the visual similarity of two word marks is, rather, the presence, in each of them, of several letters in the same order’, it is also true that, as also remarked in the very same decision (at § 85), ‘the consumer generally pays greater attention to the beginning of a mark than to the end’. As a consequence, in the cited case, even though the ending ‘ol’ constituted a common element of the marks, it was preceded, in each mark, by completely different groups of letters (‘arc’ and ‘cap’) which produced an overall visual dissimilarity. In the present case, two figurative marks are at issue, but the figurative elements (standard typefaces, use of bold and lower/upper case) do not have any particular significance. Although similarity between the two verbal elements has been found due to the presence, in each of the signs, of some letters in the same order, the similar suffix ‘CIN/cine’ has been considered weak for the goods at issue, and therefore not particularly distinctive for the relevant public. Moreover, the first parts of the signs, ‘LENDA/Gendi’, although they both contain the letters ‘END’, will be perceived overall as being different by the relevant public, due to the important differences in the initial letters.

Therefore, the above-mentioned differences are sufficient to outweigh the similarities between the signs. As a consequence, the Opposition Division does not find it plausible to conclude that the relevant consumer, who, for the purposes of the assessment, is considered reasonably well informed and reasonably observant and circumspect, might believe that the goods come from the same undertaking or economically linked undertakings, especially taking into account the higher level of attentiveness of the relevant public.

Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

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 opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

José Antonio GARRIDO OTAOLA

Valeria ANCHINI

Michele M. BENEDETTI-ALOISI

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.