OPPOSITION No B 3 129 525

Anovona Medsupps GmbH, Bergstrasse 8, 92361, Berngau, Germany (opponent), represented by Schönherr Rechtsanwälte GmbH, Schottenring 19, 1010, Vienna, Austria (professional representative)

a g a i n s t

Nualtra Limited, Go 26 Nexus Innovation Centre, Tierney Building, University of Limerick Campus, Plassey Park Road, Castletroy, Limerick, Ireland (applicant).

On 21/07/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 129 525 is upheld for all the contested goods.

2. European Union trade mark application No 18 232 017 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

On 25/08/2020, the opponent filed an opposition against all the goods of European Union trade mark application No 18 232 017 ‘Amineo’ (word mark). The opposition is based on German trade mark registration No 302 015 221 506 ‘amineo’ (word mark). The opponent invoked Article 8(1)(a) and (b) EUTMR.

DOUBLE IDENTITY — ARTICLE 8(1)(a) EUTMR

Pursuant to Article 8(1)(a) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for will not be registered if it is identical to the earlier trade mark and the goods or services for which registration is applied for are identical to the goods or services for which the earlier trade mark is protected.

a) The goods

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

Class 5: Medical preparations for slimming purposes; amino acids for medical or veterinary purposes; amino acids for medical purposes; amino acids for veterinary purposes; antioxidants; anti-oxidant food supplements; infant formula; food supplements; dietetic substances for babies; dietetic preparations adapted for medical use; dietetic substances adapted for veterinary use; dietary supplements for pets; dietary supplements for pets in the nature of a powdered drink mix; food supplements; dietetic foods adapted for medical purposes; dietetic food adapted for veterinary use; dietetic food preparations adapted for medical use; dietary supplements and dietetic preparations; food supplements; nutritional supplements; dietetic beverages adapted for medical purposes; dietetic substances adapted for medical use; dietetic foods for use in clinical nutrition; dietetic foods adapted for infants; dietetic foods adapted for invalids; dietetic foods adapted for medical purposes; albuminous preparations for medical purposes; electrolytes for medical use; fish oil for medical purposes; medicated supplements for foodstuffs for animals; medicinal drinks; medicinal drinks; medicated animal feed; milk powders [foodstuff for babies]; powdered milk for babies; powdered milk for babies; powdered milk foods for infants; food supplements consisting of amino acids; food supplements; health food supplements for persons with special dietary requirements; food for medically restricted diets.

The contested goods are the following:

Class 5: Dietetic substances and foodstuffs for clinical and medical use; formulated milk for babies, food and food substances for babies; food and food substances for medical use for children and the sick; foods and food substances for nursing mothers for medical use; nutritional and dietetic supplements for medical use; vitamin preparations, preparations made with minerals; dietetic confectionery products for medical use.

Dietetic substances and foodstuffs for clinical and medical use; formulated milk for babies, food and food substances for babies; dietetic confectionery products for medical use are identically contained in both lists of goods (including synonyms)

The contested food and food substances for medical use for children and the sick; foods and food substances for nursing mothers for medical use are included in the broad category of, or overlap with, the opponent’s dietetic food preparations adapted for medical use. Therefore, they are identical.

The contested nutritional and dietetic supplements for medical use are included in the broad category of, or overlap with, the opponent’s food supplements. Therefore, they are identical.

The contested vitamin preparations, preparations made with minerals are included in the broad category of the opponent’s dietary supplements and dietetic preparations. Therefore, they are identical.

b) The signs

amineo	Amineo
Earlier trade mark	Contested sign

The signs at issue are both word marks. This means that they do not claim any particular figurative element or appearance. Differences in the use of lower- or upper-case letters that do not depart from the usual way of writing, are immaterial. Therefore, the signs are identical.

c) Global assessment, other arguments and conclusion

The signs are identical and, as established above in section a) of this decision, the contested goods are also identical.

Therefore, the opposition is well founded on the basis of the opponent’s German trade mark registration No 302 015 221 506 pursuant to Article 8(1)(a) EUTMR. It follows that the contested trade mark must be rejected for all the contested goods.

Since the opposition is fully successful on the basis of the ground of Article 8(1)(a) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(1)(b) EUTMR.

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.

The Opposition Division

Angela DI BLASIO

Martina GALLE

Félix ORTUÑO LÓPEZ

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.