OPPOSITION No B 3 080 802

Fiterman Pharma Limited, Str. Moara de Foc; No. 35, 700520 Iasi, Romania (opponent)

a g a i n s t

Mario Berg, Sewanstr. 263, 10319 Berlin, Germany (applicant).

On 20/05/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 080 802 is upheld for all the contested goods, namely

Class 5: Nutritional supplements; Dietary supplemental drinks; Mineral food supplements; Food supplements in liquid form; Food supplements; Medicated food supplements; Herbal supplements; Propolis dietary supplements; Pollen dietary supplements; Enzyme dietary supplements; Lecithin dietary supplements; Alginate dietary supplements; Casein dietary supplements; Protein dietary supplements; Glucose dietary supplements; Mineral dietary supplements for humans; Dietary supplements with a cosmetic effect; Royal jelly dietary supplements; Bee pollen for use as a dietary food supplement; Protein powder dietary supplements; Calcium tablets as a food supplement; Food supplements for non-medical purposes; Dietary supplements for humans; Food supplements consisting of trace elements; Food supplements consisting of amino acids; Zinc dietary supplements; Dietary supplements for infants; Anti-oxidant food supplements; Nutraceuticals for use as a dietary supplement; Nutritional supplements consisting primarily of zinc; Nutritional supplements consisting primarily of iron; Nutritional supplements consisting primarily of magnesium; Vitamin preparations in the nature of food supplements; Dietary supplements consisting primarily of calcium; Mineral nutritional supplements; Nutritional supplements consisting primarily of calcium; Dietary supplements consisting primarily of magnesium; Nutritional supplements consisting of fungal extracts; Dietary supplements consisting primarily of iron; Dietary supplements for controlling cholesterol; Powdered nutritional supplement drink mix; Health food supplements made principally of minerals; Health food supplements made principally of vitamins; Dietary supplements for human beings; Powdered fruit-flavored dietary supplement drink mix; Dietary supplements and dietetic preparations; Delivery agents in the form of coatings for tablets that facilitate the delivery of nutritional supplements; Delivery agents in the form of dissolvable films that facilitate the delivery of nutritional supplements; Health food supplements for persons with special dietary requirements; Glucose for use as an additive to foods for medical purposes; Dietary supplements for humans not for medical purposes; Dietetic preparations adapted for medical use; Infant formula; Milk powders [foodstuff for babies]; Dietary supplements consisting of vitamins; Mineral food preparations for medical purposes; Preparations of trace elements for human; Trace element preparations for human use; Preparations for supplementing the body with essential vitamins and microelements; Dietetic foods adapted for medical purposes; Protein supplement shakes; Alginates for pharmaceutical purposes; Food for babies; Slimming pills; Antioxidants; Anti-oxidants for dietary use; Anti-oxidants for medicinal use; Anti-oxidants derived from honey; Anti-oxidants obtained from herbal sources; Dietary fibre; Dietary fiber to aid digestion; Bee pollen for nutraceutical use; Diabetic fruit nectars adapted for medical purposes; Diabetic fruit juice beverages adapted for medical purposes; Dietetic foods for use in clinical nutrition; Dietetic foods adapted for invalids; Dietetic substances adapted for medical use; Dietetic beverages adapted for medical purposes; Dietary and nutritional preparations; Dietetic food preparations adapted for medical use; Herbal dietary supplements for persons special dietary requirements; Dietetic beverages for babies adapted for medical purposes; Dietetic products for invalids; Dietetic preparations for children; Dietetic substances for babies; Dietary supplement drink mixes; Dietetic infusions for medical use; Medicinal drinks; Preparations for use as additives to food for human consumption [medicated]; Medicinal tea; Anti-oxidant supplements; Liquid herbal supplements; Liquid vitamin supplements; Freeze-dried food adapted for medical purposes; Royal jelly for medical purposes; Homogenized food adapted for medical purposes; Nutritional additives to foodstuffs for animals, for medical purposes; Multi-vitamin preparations; Food for medically restricted diets; By-products of the processing of cereals for dietetic or medical purposes; Vitamin A preparations; Vitamin B preparations; Neutraceutical preparations for humans; Nutraceutical preparations for therapeutic or medical purposes; Vitamin supplement patches; Probiotic supplements; Prebiotic supplements; Diet capsules; Slimming tea for medical purposes; Food for diabetics; Artificial tea [for medicinal use]; Strengthening supplements containing parapharmaceutical preparations for prophylactic purposes and for convalescents; Vitamin and mineral preparations; Vitamin and mineral supplements; Effervescent vitamin tablets; Vitamin C preparations; Vitamin D preparations; Gummy vitamins; Vitamins and vitamin preparations; Vitamin drinks; Mixed vitamin preparations; Vitamin preparations; Vitamin tablets; Vitamin drops; Vitamin supplements; Zinc supplement lozenges.

2. European Union trade mark application No 18 009 213 is rejected for all the contested goods. It may proceed for the remaining goods.

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

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 18 009 213 for the word mark ‘HappyGreens’, namely against some of the goods in Class 5. The opposition is based on Romanian trade mark registration No 116 036 for the word mark ‘HAPPY’. 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 for human use; dietetic substances adapted for medical use, for human use only; food for babies.

The contested goods are the following:

Class 5: Nutritional supplements; Dietary supplemental drinks; Mineral food supplements; Food supplements in liquid form; Food supplements; Medicated food supplements; Herbal supplements; Propolis dietary supplements; Pollen dietary supplements; Enzyme dietary supplements; Lecithin dietary supplements; Alginate dietary supplements; Casein dietary supplements; Protein dietary supplements; Glucose dietary supplements; Mineral dietary supplements for humans; Dietary supplements with a cosmetic effect; Royal jelly dietary supplements; Bee pollen for use as a dietary food supplement; Protein powder dietary supplements; Calcium tablets as a food supplement; Food supplements for non-medical purposes; Dietary supplements for humans; Food supplements consisting of trace elements; Food supplements consisting of amino acids; Zinc dietary supplements; Dietary supplements for infants; Anti-oxidant food supplements; Nutraceuticals for use as a dietary supplement; Nutritional supplements consisting primarily of zinc; Nutritional supplements consisting primarily of iron; Nutritional supplements consisting primarily of magnesium; Vitamin preparations in the nature of food supplements; Dietary supplements consisting primarily of calcium; Mineral nutritional supplements; Nutritional supplements consisting primarily of calcium; Dietary supplements consisting primarily of magnesium; Nutritional supplements consisting of fungal extracts; Dietary supplements consisting primarily of iron; Dietary supplements for controlling cholesterol; Powdered nutritional supplement drink mix; Health food supplements made principally of minerals; Health food supplements made principally of vitamins; Dietary supplements for human beings; Powdered fruit-flavored dietary supplement drink mix; Dietary supplements and dietetic preparations; Delivery agents in the form of coatings for tablets that facilitate the delivery of nutritional supplements; Delivery agents in the form of dissolvable films that facilitate the delivery of nutritional supplements; Health food supplements for persons with special dietary requirements; Glucose for use as an additive to foods for medical purposes; Dietary supplements for humans not for medical purposes; Dietetic preparations adapted for medical use; Infant formula; Milk powders [foodstuff for babies]; Dietary supplements consisting of vitamins; Mineral food preparations for medical purposes; Preparations of trace elements for human; Trace element preparations for human use; Preparations for supplementing the body with essential vitamins and microelements; Dietetic foods adapted for medical purposes; Protein supplement shakes; Alginates for pharmaceutical purposes; Food for babies; Slimming pills; Antioxidants; Anti-oxidants for dietary use; Anti-oxidants for medicinal use; Anti-oxidants derived from honey; Anti-oxidants obtained from herbal sources; Dietary fibre; Dietary fiber to aid digestion; Bee pollen for nutraceutical use; Diabetic fruit nectars adapted for medical purposes; Diabetic fruit juice beverages adapted for medical purposes; Dietetic foods for use in clinical nutrition; Dietetic foods adapted for invalids; Dietetic substances adapted for medical use; Dietetic beverages adapted for medical purposes; Dietary and nutritional preparations; Dietetic food preparations adapted for medical use; Herbal dietary supplements for persons special dietary requirements; Dietetic beverages for babies adapted for medical purposes; Dietetic products for invalids; Dietetic preparations for children; Dietetic substances for babies; Dietary supplement drink mixes; Dietetic infusions for medical use; Medicinal drinks; Preparations for use as additives to food for human consumption [medicated]; Medicinal tea; Anti-oxidant supplements; Liquid herbal supplements; Liquid vitamin supplements; Freeze-dried food adapted for medical purposes; Royal jelly for medical purposes; Homogenized food adapted for medical purposes; Nutritional additives to foodstuffs for animals, for medical purposes; Multi-vitamin preparations; Food for medically restricted diets; By-products of the processing of cereals for dietetic or medical purposes; Vitamin A preparations; Vitamin B preparations; Neutraceutical preparations for humans; Nutraceutical preparations for therapeutic or medical purposes; Vitamin supplement patches; Probiotic supplements; Prebiotic supplements; Diet capsules; Slimming tea for medical purposes; Food for diabetics; Artificial tea [for medicinal use]; Strengthening supplements containing parapharmaceutical preparations for prophylactic purposes and for convalescents; Vitamin and mineral preparations; Vitamin and mineral supplements; Effervescent vitamin tablets; Vitamin C preparations; Vitamin D preparations; Gummy vitamins; Vitamins and vitamin preparations; Vitamin drinks; Mixed vitamin preparations; Vitamin preparations; Vitamin tablets; Vitamin drops; Vitamin supplements; Zinc supplement lozenges.

All the contested goods are either pharmaceutical preparations or dietetic substances (for medical use or for feeding babies). Therefore, they are, at least highly similar or identical to the opponent’s pharmaceutical preparations for human use; dietetic substances adapted for medical use, for human use only; food for babies, either because they are identically contained in both lists (food for babies) or because the opponent’s goods include, are included in, or overlap with, the contested goods.

1. 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, and also at medical professionals with specific professional knowledge or expertise.

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 and cited case-law). This is also the case for other goods in Class 5, such as nutritional supplements and food for babies (10/02/2015, T-368/13, ANGIPAX, EU:T:2015:81,§ 42-46 and cited case-law).

In particular, medical professionals have a high degree of attentiveness when prescribing medicines or other preparations adapted for medical use. Non-professionals also have a higher degree of attention, regardless of whether the preparations are sold with or without prescription, as these goods affect their state of health.

Taking into account the above, the degree of attentiveness would be high.

2. The signs

HAPPY	HappyGreens
Earlier trade mark	Contested sign

The relevant territory is Romania.

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 marks are word marks and, therefore, it is the word as such that is protected and not its written form. Consequently, it is irrelevant whether the signs are represented in upper- or lower-case characters unless the word mark combines upper- and lower-case letters in a manner that departs from the usual way of writing (‘irregular capitalisation’). In this case, such capitalisation must be taken into account. Pursuant to Article 3(2) EUTMIR, the representation of the trade mark defines the subject matter of the registration. The perception of the relevant public, who will not fail to notice the use of irregular capitalisation, also cannot be disregarded.

Irregular capitalisation may have an impact on how the public perceives the sign, and consequently, on the assessment of similarity. The impact of irregular capitalisation on the comparison of signs is assessed on a case-by-case basis. For example, it may change the meaning of the word element in the relevant language and therefore influence how the sign is perceived. In this case, the capital G in the middle of the contested sign will lead the public to clearly perceive two distinct words: ‘Happy’ and ‘Greens’.

The word ‘HAPPY’, which constitutes the earlier mark, is a basic English word that is known to the relevant public (see in respect to the relevant public in the European Union 15/07/2015, T-352/14, HAPPY TIME / HAPPY HOURS, EU:T:2015:491, § 39; and 30/04/2015, T-707/13 & T-709/13, BE HAPPY, EU:T:2015:252, § 30) as meaning ‘feeling, showing, or expressing joy; pleased’, ‘causing joy or gladness’. This element considered on its own, as in the earlier mark, is an adjective referring to an emotional state (of joy, satisfaction), which may be desirable, in a general way, for any member of the relevant public, since all humans pursue happiness. However, the word per se has no direct link to any of the relevant goods, as it does not describe or evoke their essential characteristics. Therefore, despite its positive connotation, the Opposition Division sees no reason to consider the inherent distinctiveness of this element to be less than average.

The verbal element ‘HappyGreens’, which constitutes the contested sign, has no meaning for the relevant public taken as a whole. However, the Court has held that, although average consumers normally perceive a mark as a whole and do not proceed to analyse its various details when perceiving a word sign, they will break it down into elements that, for them, suggest a specific meaning or that resemble words known to them (13/02/2007, T 256/04, Respicur, EU:T:2007:46, § 57). Given what has been said above regarding the impact of irregular capitalisation, it is reasonable to assume that the Romanian public will perceive the element ‘HappyGreens’ as the sum of its parts, splitting it into the elements ‘Happy’ and ‘Greens’.

In particular, the element ‘Happy’, included at the beginning of the contested sign, will be perceived with the meaning explained above.

The element ‘Greens’ in the contested sign is meaningless and therefore normally distinctive, in accordance with recent decisions of the Boards of Appeal:

In (12/07/2018, R 288/2018-5, GREENIC (fig.) / GREENICE, § 25 and 31 to 34; 18/6/2018, R 97/2018-5, Greenic / DEVICE OF A RECTANGULAR LABEL WITH THE WORD 'GREENICE' AND A PICTURE OF A GREEN BUTTERFLY AND GRASS (fig.), § 26 and 32 to 35), the Boards of Appeal have reached the conclusion that part of the Spanish-speakers would not perceive the meaning of ‘GREEN’ in the terms ‘GREENICE’ and ‘GREENIC’ of the signs, in relation to drinks in Class 32. In the decision of 03/05/2017, R 2246/2016-2, GREEN MUSHROOM FARM INTERNATIONAL BUSINESS (fig.) / GREEN FARMS (fig.), the Boards of Appeal have also indicated that the word ‘GREEN’ is meaningless for the relevant non-English speaking public such as the Spanish, Italian or Portuguese public (in relation to mushrooms).

These conclusions can be extended by analogy to the public in other territories of the European Union (such as the Romanian-speaking public) in relation to the goods at issue.

Visually and aurally, the signs coincide in the word ‘HAPPY’ (or its sound), which makes up the whole of the earlier mark and the initial part of the contested sign. The marks differ in the additional element contained at the end of the contested sign, ‘Greens’.

The word that the signs have in common, ‘HAPPY’, is placed at the beginning of the contested sign. Consumers generally tend to focus on the first element of a sign when being confronted with a trade mark. This is justified by the fact that the public reads from left to right, which makes the part placed at the beginning of the sign (the initial part) the one that first catches the attention of the reader.

Therefore, considering that the signs coincide in the first verbal element, ‘HAPPY’, which is distinctive, and differ in the final verbal element ‘Greens’, also distinctive, the marks are similar to an average degree.

Conceptually, as seen above, the word ‘HAPPY’, which constitutes the earlier mark and is the first word in the contested sign, will be perceived by the relevant public as, ‘feeling, showing, or expressing joy; pleased’, ‘causing joy or gladness’.

The element ‘Greens’ in the contested sign is meaningless. Consequently, the marks are conceptually similar to a high degree on account of the coincidence in the fully distinctive element ‘HAPPY’.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

3. 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.

4. Global assessment, other arguments and conclusion

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).

The goods are identical. The signs have been found visually and aurally similar to an average degree and conceptually highly similar. The earlier mark is distinctive to a normal degree.

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.

Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark ‘HAPPY’, configured in a different way according to the type of goods or services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

Considering all the above, there is a likelihood of confusion on the part of the public, even displaying a relatively high degree of attention.

Therefore, the opposition is well founded on the basis of the opponent’s Romanian trade mark registration No 116 036. It follows that the contested trade mark must be rejected for all the contested goods.

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, 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

Inés GARCÍA LLEDÓ

Helen Louise MOSBACK

María del Carmen SUCH SÁNCHEZ

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.