OPPOSITION No B 3 080 684

FrieslandCampina Nederland B.V., Stationsplein 4, 3818 LE Amersfoort, Netherlands (opponent), represented by HGF BV, Gedempt Hamerkanaal 147, 1021 KP Amsterdam, Netherlands (professional representative)

a g a i n s t

Tamer Cankurtaranoglu; Ebdries 16, 3202 Rillaar, Belgium (applicant).

On 14/02/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 080 684 is upheld for all the contested goods.

2. European Union trade mark application No 18 013 414 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 18 013 414 for the word mark VIVIT. The opposition is based on the International Registration designating the European Union No 1 398 414 for the word mark VIFIT and Benelux trade mark registration No 1 007 725 for the word mark VIFIT. 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 International Registration designating the European Union No 1 398 414.

a) The goods

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

Class 5: Dietary and nutritional supplements; protein supplements.

The contested goods are the following:

Class 5: Vitamin drinks.

The contested vitamin drinks are included in the broad category of the opponent’s dietary and nutritional supplements. Vitamin drinks are dietetic beverages which are consumed to supplement regular nutrition. As such they fall under the more general term dietary and nutritional supplements. Therefore, the goods are identical.

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 are directed at the public at large and medical professionals with specific professional knowledge or expertise.

The degree of attention will be high, since the goods are related to human health.

c) The signs

VIFIT	VIVIT
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 contested sign may be understood as a reference to 'living' by some of the consumers in the relevant territory, namely the part of the relevant consumers who are familiar with the Latin language or speak a Romance language, in particular French, Italian and Spanish where the words for ‘live’ are ‘vivre’, ‘vivere’ and ‘vivir’. The expression ‘vivit’ means ‘he/she lives’ in Latin. The rest of the relevant consumers will not understand the contested sign. Whether or not understood, since ‘VIVIT’ is neither evocative nor descriptive of the goods, it is distinctive to an average degree. The same applies to the earlier mark, which is meaningless for the relevant public.

Visually and aurally, the signs coincide in four letters/sounds 'VI*IT' out of five. The visual impression and pronunciation differ slightly in the (sound of the) third letter of the marks, which in the earlier mark is an 'F' and in the contested mark is a 'V'. However, the marks have the same intonation and rhythm in all languages of the relevant territory. The sole difference is in the middle of the signs, which makes it less noticeable. Furthermore, in both cases it is a consonant and the difference is not striking, in particular because the consonants ‘F’ and ‘V’ are close to each other in their pronunciation in all languages of the relevant territory.

Therefore, the signs are visually and aurally highly similar.

Conceptually, the contested sign may be understood or not be understood. In cases where the contested sign is understood as a reference to 'living', the signs are conceptually not similar. Otherwise, the outcome of the comparison is neutral.

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 goods under analysis are identical. The signs are visually and aurally highly similar.

The earlier mark has an average degree of distinctiveness. The relevant public is the public at large and medical professionals, whose degree of attention will be high. 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 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).

For a small part of the relevant public the signs are conceptually not similar but for the larger part of consumers in the EU neither of the signs has a conceptual meaning. Conceptual differences can, in certain circumstances, counteract, to a large extent, visual and aural similarities between signs. For this to happen, at least one of the marks at issue must have, from the point of view of the relevant public, a clear and specific meaning so that the public is capable of grasping it immediately, and the other trade mark must either not have such a meaning or mean something completely different (see judgment of 22/06/2004, Case T-185/02, 'Picaro', paragraph 56, and further references cited therein). In the present case there is no concept that allows the larger part of consumers in the EU to differentiate the signs.

Therefore, considering that the goods are identical, and the signs coincide in all the letters except one in the centre (third letter), which, in addition, sounds similar in both signs respectively when pronounced in all parts of the relevant territory, and that conceptual differences are absent, there is a likelihood of confusion on the part of the relevant public.

Therefore, the opposition is well founded on the basis of the opponent’s International Registration designating the European Union No 1 398 414. It follows that the contested trade mark must be rejected for all the contested goods.

As the earlier International Registration designating the European Union No 1 398 414 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 right 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

Begoña URIARTE VALIENTE

Christian STEUDTNER

Anna BAKALARZ

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.