OPPOSITION No B 3 049 648

Novartis AG, 4002 Basel, Switzerland (opponent), represented by Milojevic, Sekulic & Associates, S.L., C/ Clara Campoamor NUM. 5 BW-107, 03540 Alicante, Spain (professional representative)

a g a i n s t

Fitpower s.r.o., Marešova 643/6, Praha 9 - Černý Most, Czechia (applicant), represented by Miroslav Kupka, Levého 1532, 269 01 Rakovník, Czechia (professional representative).

On 20/06/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 049 648 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 (Class 5) of European Union trade mark application No 17 645 904 for the figurative mark . The opposition is based on European Union trade mark registration No 13 290 358 for the word mark ‘SJEVRIS’. 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.

1. The goods

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

Class 5: Pharmaceutical preparations.

The contested goods are the following:

Class 5: Vitamins; minerals; trace elements; vitamin and multi-vitamin preparations; dietetic and nutritional preparations for medical purposes; combined preparations of vitamins, minerals, trace elements and herbal extracts; food supplements enriched with vitamins, minerals or trace elements; minerals and multimineral preparations; stimulant preparations and tonics, including food supplements; nutritive supplements for medical purposes; energy-nutritious preparations; foodstuffs enriched with vitamins and minerals in the form of concentrates for medical purposes; protein concentrates used as nutritional food supplements, for medical and non-medical purposes; food supplements with therapeutic effects; performance-enhancing nutritional and dietary supplements to meet the nutritional requirements of athletes and sportspeople; dietary supplements, not for medical purposes (included in this class); medicated vegetal mixtures and extracts for dietetic use and mixtures of the aforesaid substances and preparations; dietetic food additives with therapeutic effects; sanitary preparations for medical purposes; food for infants and children; dietetic foods adapted for medical use; cosmetic skincare preparations and products for medical purposes, in the form of tablets, dragées, capsules, ointments, creams, gels, oils, foams, liquid suspensions, emulsions or colloidal solutions, lotions, powders and powdered mixtures, solutions, medicinal tea blends; diabetic beverages.

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.

All the contested goods — which are pharmaceutical, sanitary and dietetic substances — belong to the same market sector as the opponent’s pharmaceutical preparations. It should be pointed out that a pharmaceutical preparation refers to any kind of medicine, that is to say, a substance or combination of substances for treating or preventing diseases in human beings or animals.

It cannot be excluded that some of the contested goods would coincide with the opponent’s goods in numerous relevant criteria, such as their nature, purpose, method of use, and whether they are complementary or in competition. These goods clearly belong to one homogeneous sector of products on the market and the majority of them are — at least — sold through the same channels of distribution, target the same public, and have the same general purpose of treating or preventing diseases, or protecting and promoting health. Based on this conclusion, none of the contested goods can be considered dissimilar to those of the opponent.

It follows that all the contested goods in Class 5 are at least similar to the opponent’s pharmaceutical preparations.

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 at least similar, are specialised goods directed at both the public at large and specialists in the field of healthcare and nutrition.

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). This is also the case for other goods in Class 5, such as dietetic substances (10/02/2015, T‑368/13, ANGIPAX, EU:T:2015:81, § 42- 46).

In particular, medical professionals have a high degree of attentiveness when prescribing medicines. Non-professionals also have a high degree of attention, regardless of whether the pharmaceuticals are sold without prescription, as these goods affect their state of health. The same is applicable to all relevant goods (including dietetic substances for medical use) as the use of the goods may have important effects on human health.

3. The signs

SJEVRIS
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 earlier mark is a word mark consisting of the element ‘SJEVRIS’, while the contested sign is a figurative mark including the verbal element ‘EVRIS’ in a bold black font, positioned to the right of a distinctive figurative element. The contested sign has no element that could be considered more dominant (visually eye-catching) than other elements.

Both verbal elements of the signs are meaningless for the relevant public and are, therefore, distinctive.

Visually and aurally, despite the fact that the signs coincide in the letters ‘EVRIS’, which is the entire verbal element of the contested sign and the last five letters of the earlier mark, they differ in their first letters, as the earlier mark begins with ‘SJ’. Furthermore, the earlier mark will be perceived as a whole, as it would be completely artificial to dissect the earlier mark into ‘SJ’ and ‘EVRIS’. Therefore, the coinciding element ‘EVRIS’ does not form an independent part in the earlier mark. The signs differ in the sequence of the first two letters (and their sounds) ‘SJ’ of the earlier mark, which have no counterparts in the contested one. The signs, furthermore, differ visually in the distinctive depiction of the contested sign’s figurative element, which has no counterpart in the earlier mark. The signs have verbal elements of different lengths, namely 5 letters in the contested sign versus 7 letters in the earlier mark. Moreover, aurally the signs are composed of different numbers of syllables. This leads to the signs under comparison having different rhythms and intonations.

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.

Therefore, the differences in the beginnings of the signs are of material importance when assessing the likelihood of confusion between the signs.

Taking into account all the above, plus what has been said regarding the distinctiveness of the elements of the signs, the signs are visually and aurally similar to only a low degree.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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 their 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 territories. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The contested goods were found to be at least similar and the signs under comparison are visually and aurally similar to a low degree, due to the shared sequence ‘EVRIS’. However, the differing sequence ‘SJ’, placed at the beginning of the earlier mark, the different lengths of the signs, the different number of syllables which give the signs different rhythms and intonations will be clearly noticeable to the relevant public. More importantly, the coinciding letters ‘EVRIS’ will not be identified as an independent element in the earlier mark. There are no conceptual similarities.

The abovementioned differences are enough to outweigh the similarities between the signs originating from the sequence of letters that they have in common. Therefore, the Opposition Division does not find it plausible to conclude that the relevant consumer, who, for the purposes of the assessment, is considered to be reasonably well informed and reasonably observant and circumspect, might believe that the goods found to be similar come from the same undertaking or economically linked undertakings. This conclusion is even more valid for the part of the goods for which the level of attention of the relevant public will be higher.

Considering all the above, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

The opponent refers to previous decisions of the Office to support its arguments, such as decision B 2 593 808; B 1 218 298 D; B 2 828 450; 05/04/2018, R 2009/2017‑2, Macavit / CAVIT et al.; T‑182/17: KANTOS vs AKANTO. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities. This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

While the Office does have a duty to exercise its powers in accordance with the general principles of European Union law, such as the principle of equal treatment and the principle of sound administration, the way in which these principles are applied must be consistent with respect to legality. It must also be emphasised that each case must be examined on its own individual merits. The outcome of any particular case will depend on specific criteria applicable to the facts of that particular case, including, for example, the parties’ assertions, arguments and submissions. Finally, a party in proceedings before the Office may not rely on, or use to its own advantage, a possible unlawful act committed for the benefit of some third party in order to secure an identical decision.

In view of the above, it follows that, even if the previous decisions submitted to the Opposition Division are to some extent factually similar to the present case, the outcome may not be the same, as they have different coinciding elements.

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, 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

Tu Nhi VAN

Gonzalo BILBAO TEJADA

Martin EBERL

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.