OPPOSITION Nо B 3 120 054

LindaCare NV, Grauwmeer 1 bus 41, 3001 Heverlee, Belgium (opponent), represented by IP Hills NV Hubert Frère-Orbanlaan 329, 9000 Gent, Belgium (professional representative)

a g a i n s t

Biofarma, 50 rue Carnot, 92284 Suresnes cedex, France (applicant), represented by Cabinet Germain & Maureau, 31-33 Rue de la Baume, 75008 Paris, France (professional representative).

On 16/07/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 120 054 is rejected in its entirety.

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

REASONS

On 13/05/2020, the opponent filed an opposition against some of the goods and services of European Union trade mark application No 18 179 215 ‘LINKARE’ (word mark), namely against all the goods and services in Classes 9 and 44. The opposition is based on European Union trade mark registration No 14 997 852 (figurative mark) and Benelux trade mark registration No 984 950 ‘Lindacare’ (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 14 997 852.

a) The goods and services

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

Class 9: Software for medical systems and patient monitoring; application software for patient monitoring; computer software for use in remote patient monitoring; computer software for controlling and managing access server applications; data processing software; data recorded electronically; database management software; data protection backup units; computer software platforms; downloadable computer software for remote monitoring and analysis in relation to patients; all the aforementioned excluding apparatus for providing oxygen, sleep and ventilation therapies.

Class 38: Providing telecommunications connections to a global computer network; all the aforementioned in connection with patient monitoring.

Class 42: Software development, programming and implementation designed for use in telemedicine and tele-monitoring of patients; cloud computing; providing online nondownloadable cloud computing software; scientific research for medical purposes related to telemedicine and tele-monitoring of patients; provision of information and data relating to medical research and development related to telemedicine and telemonitoring of patients; development of computer programs recorded on data media (software) designed for use in patient monitoring.

Class 44: Telemedicine services.

The contested goods and services are the following:

Class 9: Scientific, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; recording substrates [magnetic]; digital recording media; phonograph records; apparatus and equipment for processing data and information; computer software; computers; computer programs [downloadable software]; data-processing equipment; computer software recorded on magnetic media or downloaded from a remote computer network; computer software applications, downloadable; downloadable applications for use with mobile devices and portable devices; digital applications; telecommunications hardware for use with mobile networks; transmitters of electronic signals; computer software for monitoring physiological signals; computer software for analysing, storing and monitoring physiological data, including predictive medicine, diagnosis, monitoring and warning software; software for algorithms; AI software; computer platforms in the form of computer software for sharing information; analysis systems based on artificial intelligence (computer software); computer software for updating and exchanging data on a virtual platform for exchanging information between patients and healthcare professionals; computer software for teleconsultation and video consultation; computer software for online data management in the field of cloud computing networks and applications; computer software for medical purposes, for collecting and processing patient data and managing diagnostic and therapeutic methods using medico-technical apparatus; medical imaging software; personal digital assistant; smart bracelets, smart scales, connected bracelets (measuring instruments); smart self-measurement tools; spectacles, contact lenses; camcorders; wearable activity trackers; augmented reality software; virtual reality computer programs; medical image analysis systems based on artificial intelligence; electronic chips connected to information systems; virtual reality headsets; pressure measurement apparatus; pressure indicators; in-ear headphones; information display terminals; position fixing apparatus; electronic tags; travel distance monitors; personal electronic apparatus for displaying, measuring, recording, organising, handling, analysing and receiving data, text, images and audio files relating to health and wellbeing; receivers used for detecting, storing and processing electronic data transmitted by a sensor that records data relating to health.

Class 44: Medical services; veterinary services; hygienic and beauty care for human beings or animals; advisory services relating to health; pharmacy advice; medical services; telemedicine services; therapy services; medical diagnostic services; medical diagnostic services via electronic and telematic means; home health care services; individualised medical prescriptions; online medical prescriptions; consultancy in relation to medical treatment in the home; self-medication consultancy; medical information for patients; remote medical examinations; advice relating to the personal welfare and wellbeing [health]; medical monitoring of patients, including provided remotely; providing medical support in the monitoring of patients receiving medical treatments; medical information retrieval services; health assessment surveys.

Some of the contested goods and services are identical or similar to goods and services on which the opposition is based. For example, the contested computer software and medical services include, as broader categories, the opponent’s computer software for use in remote patient monitoring and telemedicine services respectively. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods and services listed above. The examination of the opposition will proceed as if all the contested goods and services were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

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 and services assumed to be identical are directed at the public at large and at customers with specific professional knowledge or expertise, for example doctors and IT specialists.

The public’s degree of attentiveness may vary from average to high, depending on the price, specialised nature, or terms and conditions of the goods and services purchased.

In particular, the public’s degree of attentiveness will be higher in relation to medical services, as these services affect their state of health.

c) The signs

	LINKARE
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 means ‘to establish a link between two pieces of information’ in Italian. It has a weak distinctive character for all software, computer programs and telecommunications hardware in Class 9 and a normal degree of distinctiveness for the remaining goods and services.

For the rest of the public in the relevant territory, neither sign conveys any clear meaning when perceived as a whole. However, at least a part of the relevant public, when encountering the signs, will naturally look for a meaning. Although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, they will break a word sign down into elements that suggest a specific meaning or that resemble words they know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57). Therefore, in the context of the relevant goods and services, consumers are likely to break down the signs into the verbal components ‘LINDA’ and ‘CARE’ for the earlier mark and ‘LINK’ and ‘ARE’ for the contested sign.

The component ‘LINDA’ is a common female given name, which is widely used in parts of the European Union, for example in Belgium, Germany and the Netherlands. It is well known in the rest of the relevant territory because of popular personalities like Linda McCartney or Linda Evangelista or fictional characters. Furthermore, in some languages, this word has a specific meaning, for example ‘beautiful’ in Spanish, however, none of these meanings relate to the relevant goods and services. Therefore, this component has a normal degree of distinctiveness.

The component ‘CARE’ of the earlier mark will be perceived by the English-speaking public, as well as certain professionals in the medical area, as meaning ‘the provision of what is necessary for the health, welfare, maintenance, and protection of someone or something’ (information extracted from Oxford English Dictionary on 08/07/2021 at https://www.lexico.com/definition/care). Bearing in mind that part of the relevant goods and services is related to medicine, namely medicine-related software in Class 9 and all medical and beauty-care services in Class 44, this component is non-distinctive for these goods and services. It has a normal degree of distinctiveness for the remaining goods in Class 9.

For the remaining part of the relevant public, this component ‘CARE’ may be either meaningless or have various meanings, none of which, however, relates to the goods and services in question: for example, ‘charms’ in Slovenian or ‘king/tsar’ in Croatian (vocative case). Therefore, it has a normal degree of distinctiveness for this part of the public.

The component ‘LINK’ of the contested sign will be associated by the relevant public throughout the whole European Union with the meaning: ‘a code or instruction which connects one part of a program or an element in a list to another; a relationship between two things or situations, especially where one affects the other’ (information extracted from Oxford English Dictionary on 08/07/2021 at https://www.lexico.com/definition/link). It has a weak distinctive character for all software, computer programs and telecommunications hardware in Class 9 and a normal degree of distinctiveness for the remaining goods and services.

The remaining component of the contested sign, ‘ARE’, has no meaning in relation to the relevant goods and services and is, therefore, distinctive.

It is unlikely that consumers will dissect the contested sign into ‘LIN’ and ‘KARE’ and associate ‘KARE’ with the meaning of ‘care’, as argued by the opponent. On the contrary, in some languages this word ‘KARE’ has a completely different meaning, for example ‘square’ in Bulgarian or ‘ripple’ in Finnish. Furthermore, in relation to goods in Class 9 such as software, computers and IT and communication equipment, it is unlikely that the consumers will see ‘KARE’ instead of ‘LINK’. However, the Opposition Division will proceed assuming that part of the public will dissect the contested sign into ‘LINK’ and ‘KARE’, as misspelled ‘CARE’, as this is the most advantageous scenario for the opponent. As mentioned above, the component ‘KARE’ (or ‘CARE’) is non-distinctive for part of the relevant goods and services and has a normal degree of distinctiveness for the remaining goods.

The red smiling heart of the earlier mark will be associated with healthcare services and software for medical purposes and has, therefore, a weak distinctive character. The stylisation of the mark is rather standard. The relevant public is used to this kind of graphic depiction in the marketplace when encountering trade marks and does not pay much attention to them as it is perceived as essentially ornamental. Furthermore, when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37).

The earlier mark has no element that could be considered clearly more dominant than other elements.

Visually, the signs coincide in the sequence of letters ‘LIN(***)ARE’. However, they differ in the letters ‘DAC’ of the earlier mark and ‘K’ of the contested sign. They also differ in the figurative element and stylisation of the earlier mark.

Therefore, the signs are visually similar to a below-average degree.

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 ‘LIN(***)ARE’, present identically in both signs and, in part of the territory, also in the sound of the letters ‘C’ and ‘K’. The pronunciation differs in the syllable ‘DA’ of the earlier mark, which has no counterpart in the contested sign, and, in part of the territory, in the letter ‘C’. Consequently, the signs have different lengths, intonations and rhythm.

Therefore, the signs are aurally similar to a below-average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the elements of the signs will be associated with dissimilar meanings by part of the public, the signs are conceptually not similar.

For the part of the public who will perceive ‘CARE’ and ‘KARE’ with the same meaning the signs are conceptually similar to an at most average degree. The signs will be conceptually similar to a low degree for the goods and services for which ‘CARE’ is non-distinctive.

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 claimed that the earlier trade mark enjoys ‘a significant degree of distinctiveness’ but did not file any evidence in order to prove such a claim.

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 and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of some non-distinctive and weak elements in the mark, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

In determining the existence of likelihood of confusion, trade marks have to be compared by making an overall assessment of the visual, aural and conceptual similarities between the marks. The comparison ‘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). Likelihood of confusion must be assessed globally, taking into account all the circumstances of the case.

The goods and services are assumed to be identical. They target the public at large and customers with specific professional knowledge or expertise, whose degree of attentiveness may vary from average to high.

The earlier mark as a whole is inherently distinctive to a normal degree.

The signs are visually and aurally similar to a below-average degree. For part of the public, the signs are conceptually not similar and, for another part of the public, either similar to a low degree or similar to at most an average degree.

The visual differences between the signs lie in the middle of the signs and in the figurative element and stylisation of the earlier mark. Although consumers generally tend to focus on the beginning of a sign when they encounter a trade mark, this consideration cannot prevail in all cases and cannot, in any event, undermine the principle that an examination of the similarity of the signs must take account of the overall impression produced by those signs, since the average consumer normally perceives a sign as a whole and does not examine its individual details (27/06/2012, T‑344/09, Cosmobelleza, EU:T:2012:324, § 52).

According to case-law, where one of the signs has a clear and specific meaning that can be grasped immediately and the other has none, or where both signs have a clear and specific meaning and these meanings are different, any conceptual differences between the signs may counteract their visual and aural similarity (12/01/2006, C‑361/04 P, Picaro, EU:C:2006:25, § 20). At least one component of the earlier mark has a clear meaning. In particular, the popular personal name is perceived as such throughout the whole European Union. Furthermore, the word ‘LINK’ as the initial component of the contested sign will also be perceived with a meaning in the whole relevant territory. These differing meanings are enough to counteract the visual and aural similarities between the signs. Moreover, the conceptual difference will be even greater for the Italian part of the public, who will see a meaning in the contested sign without dissecting it.

The opponent refers to previous decisions of the Office to support its arguments. 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).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

The previous cases referred to by the opponent are not relevant to the present proceedings as they compared different signs and goods:

 18/06/2019, B 3 036 863, NUTRILINE (figurative mark)/NutLine (figurative mark): the relevant goods are various foodstuffs. Furthermore, the signs and their components are meaningless in some European Union languages.

 26/08/2019, B 3 066 846, ‘COMBAIR’/‘Combovair’: the relevant goods are pharmaceuticals, and the dissection of the signs was excluded.

Considering all the above, even assuming that the goods and services are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

The opponent has also based its opposition on the following earlier trade mark: Benelux trade mark registration No 984 950, ‘Lindacare’.

Since the verbal element of this mark is identical to the one that has been compared and it covers the same or a narrower scope of goods and services, the outcome cannot be different. Therefore, no likelihood of confusion exists with respect to those goods and services.

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

Rasa BARAKAUSKIENÉ

Tzvetelina IANTCHEVA

Kieran HENEGHAN

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.