OPPOSITION Nо B 3 088 148

 

Davi II - Farmacêutica, S.A., Estrada Consiglieri Pedroso 69-B, Queluz de Baixo, 2730-055 Barcarena, 2730-055 Oeiras, Portugal (opponent), represented by J. Pereira da Cruz, S.A., Rua Victor Cordon, 14, 1249-103 Lisboa, Portugal (professional representative) 

 

a g a i n s t

 

Sinopharm Zhijun (Shenzhen) Pharmaceutical Co., Ltd, No.16 Lanqingyilu, High-tech Zone, Guanlan, Longhua New District, Shenzhen, Guangdong, People´s Republic of China (applicant), represented by Würth & Kollegen, Auf dem Berge 36, 28844 Weyhe, Germany (professional representative).

On 26/04/2021, the Opposition Division takes the following

 

 

DECISION:

1.	Opposition No B 3 088 148 is rejected in its entirety.

 

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

 

REASONS

 

On 04/07/2019, the opponent filed an opposition against all the goods of European Union trade mark application No 18 056 017 (figurative mark). The opposition is based on Portuguese trade mark registration No 127 400 ‘DAVI’ (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.

 

 

a) The goods

 

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

Class 5: Pharmaceutical products, pharmaceutical preparations for humans and animals.

 The contested goods, following a partial rejection of the contested application in parallel proceedings, are the following:

 

Class 10: Massage apparatus; heating cushions, electric, for medical purposes; soporific pillows for insomnia; baby feeding dummies; sex toys; orthopedic articles.

The above goods are dissimilar tor the reasons explained below.

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.

 

Part of the contested goods are physical therapy equipment’s articles such heating cushions, electric, for medical purposes, massage apparatus, or orthopaedic articles. The contested soporific pillows for insomnia are medical equipment. These articles mainly serve to help regain and restore the pain free-conditions and/or comfortability that a person experienced prior to an injury, illness or disability. The use of these goods is not indispensable for the use of the opponent’s goods and vice versa. To this extent they are neither in competition, nor they are complementary. In principle, the contested goods are purchased by business customers such as physiotherapists, hospitals or in orthopaedic shops. Even if some of the contested goods that could be of interest for non-professionals, coincide with the opponent’s goods in distribution channels (pharmacies), they are usually displayed in different sections or shelves.

The contested baby feeding dummies serve to nourish the baby. These goods have a different purpose and nature from the opponent’s goods and are neither in competition, nor they are complementary. They do not coincide in the relevant public, either and usually are produced by different companies. Tough coincidence in certain commercial channels (pharmacies, drug shops) is not excluded, this alone is not a reason for finding similarity since the goods occupy different sections of display

As to the contested sex toys, these goods target a particular public and are distributed in specialised shops. They have a different purpose and nature from the opponent’s goods and are manufactured by different undertakings. They are neither complementary, not they are in competition.

 

b) Conclusion 

 

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and 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, 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

 

 

Manuela RUSEVA

Meglena BENOVA

Sofia SACRISTÁN MARTÍNEZ

 

 

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.