OPPOSITION No B 3 048 128

Synergia, Le Poyet, 43 500 Beaune Sur Arzon, France (opponent), represented by Gerard Haas, 32 Rue La Boétie, 75008 Paris, France (professional representative)

a g a i n s t

Alliance for intellectual property in the field of pharmacy, chemistry and biology, 11 Slaveykov sq., fl. 1 office 5, 1000 Sofia, Bulgaria (applicant),

On 17/06/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 048 128 is upheld for all the contested goods.

2. European Union trade mark application No 17 478 413 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 478 413, SYNERGYX (word mark), namely against all the goods in Class 5. The opposition is based on inter alia, European Union trade mark registration No 12 872 396, SYNERGIA (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 12 872 396.

a) The goods

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

Class 5: Foodstuffs and dietetic substances for medical or veterinary purposes; dietary supplements for humans and animals; dietetic substances adapted for medical use; foodstuffs and nutraceutical preparations, namely capsules, powders, ampoules or syrups containing edible oils and fats and/or plant fibres and/or micronutrients including vitamins and/or minerals and/or amino acids and/or fatty acids; nutritional (or food) preparations and supplements containing proteins and/or carbohydrates and/or lipids and/or fibres and/or edible oils and fats and/or micronutrients including vitamins and/or minerals and/or amino acids and/or fatty acids, not for medical purposes.

The contested goods are the following:

Class 5: Pharmaceutical preparations for human; nutritional supplements for human; pharmaceutical preparations and substances for human; dietary supplements for humans; dietary and nutritional supplements for human.

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.

Nutritional supplements for human; dietary supplements for humans; dietary and nutritional supplements for human are identically contained in both lists of goods.

The contested pharmaceutical preparations for human; pharmaceutical preparations and substances for human are similar to the opponent’s dietetic substances adapted for medical use. They coincide in their purpose of promoting and maintaining health and wellbeing, they are sold through the same distribution channels and target the same public.

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 are directed at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention is considered to be high due to the health-related character of the relevant goods.

c) The signs

SYNERGIA	SYNERGYX
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).

Both signs are word marks which coincide in six out of eight letters, in the same sequence. The English public will associate the earlier mark with ‘the interaction or cooperation of two or more organisations, substances, or other agents to produce a combined effect greater than the sum of their separate effects’ (information extracted from Oxford Dictionaries on Line on 07/06/2019 at https://en.oxforddictionaries.com/ definition/synergy). It will also be understood with that meaning by the majority of the relevant public, as the word in other languages in the relevant territory is very similar (e.g. ‘sinergia’ in Spanish, ‘synergie’ in French and German).

The contested mark is meaningless as a whole, but it will be associated with the meaning mentioned above, as it will be perceived by the English-speaking public as the word ‘SYNERGY’ with a letter ‘X’ added to its end. It will also be understood with that meaning by the majority of the relevant public, as the word in other languages in the relevant territory is very similar, as already explained.

The signs are not descriptive, allusive or otherwise weak/non-distinctive in relation to the relevant goods and therefore have an average degree of distinctiveness.

Visually, the signs coincide in the letters ‘SYNERG’, in the same sequence. However, they differ in their final two letters ‘IA’ of the earlier mark and ‘YX’ of the contested sign.

Therefore, the signs are visually highly similar.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‛SYNERG’, present identically in both signs, and for the majority of the relevant public, (e.g. the French- and Italian-speaking public) they also coincide in the sound of the letters ‘Y/I’, which have identical pronunciation in this case. For this part of the public, the pronunciation differs only in the last letters ‘A’ and ‘X’. For the rest of the public who might pronounce ‘Y/I’ differently, the pronunciation differs in the sound of the last letters ‘IA’ of the earlier sign and ‛YX’ of the contested mark.

Therefore, the signs are aurally highly similar.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs will be associated with a similar meaning, the signs are conceptually highly similar.

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.

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, and the degree of similarity between the marks and between the goods or services identified (recital 11 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).

The goods are partly identical and partly similar.

The signs are visually, aurally and conceptually similar to a high degree. Both signs are eight-letter word marks, and their first six letters are identical. The differing two letters in each sign are not sufficient to counteract the high degree of similarity between them. In word signs or in signs containing a verbal element, the first part is generally the one that primarily catches the consumer’s attention and, therefore, will be remembered more clearly than the rest of the sign. This means that in general the beginning of a sign has a significant influence on the general impression made by the mark (15/12/2009, T‑412/08, Trubion, EU:T:2009:507, § 40; 25/03/2009 T‑109/07, Spa Therapy, EU:T:2009:81, § 30).

Account must be 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).

Indeed, 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).

Bearing in mind the average degree of distinctiveness of the earlier mark, it is considered that the visual and aural difference between the signs is not sufficient in this case to counterbalance the visual, aural and conceptual coincidences between them, even taking into account that the level of attention of the relevant public will be higher than average.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 12 872 396. It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier right, European Union trade mark registration No 12 872 396, 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.

The Opposition Division

Irena LYUDMILOVA LECHEVA

Aurelia PEREZ BARBER

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.