OPPOSITION No B 2 679 069

Lehning Entreprise S.A.S., 1-3, rue du Petit Marais, 57640 Sainte Barbe, France (opponent), represented by Areopage, 1 bis rue de Pongerville, 92000 Nanterre, France (professional representative)

a g a i n s t

Feedback Trayer S.L., Avda. Monteclaro nº 10 Urbanización Monteclaro, 28223 Pozuelo De Alarcon (Madrid), Spain (applicant), represented by Herrero & Asociados, Cedaceros 1, 28014 Madrid, Spain (professional representative).

On 30/05/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 679 069 is upheld for all the contested goods, namely

Class 5: Pharmaceutical and veterinary preparations; Sanitary preparations for medical purposes; Dietetic food and substances adapted for medical or veterinary use, food for babies; Dietary supplements for humans and animals; Plasters, materials for dressings; Material for stopping teeth; dental wax; Disinfectants; Preparations for destroying vermin; Fungicides.

2. European Union trade mark application No 14 915 524 is rejected for all the contested goods. It may proceed for the remaining goods.

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

REASONS:

The opponent filed an opposition against some of the goods of European Union trade mark application No 14 915 524, namely against some of the goods in Class 5. The opposition is based on European Union trade mark application No 13 925 425 and French trade mark registration No 154 172 230. 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 French trade mark registration No 154 172 230.

1. The goods

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

Class 5: Pharmaceutical preparations; Veterinary preparations; Foods and dietetic substances adapted for medical use; Dietetic foods and substances adapted for veterinary use; Food supplements for human beings; Nutritional supplements; Nutritional supplements; Food supplements of plant origin; Vitamin supplements; Albumin dietary supplements; Flaxseed dietary supplements; Flaxseed oil dietary supplements; Wheat germ dietary supplements; Yeast dietary supplements; Royal jelly dietary supplements; Propolis dietary supplements; Pollen dietary supplements; Enzyme dietary supplements; Glucose dietary supplements; Lecithin dietary supplements; Alginate dietary supplements; Casein dietary supplements; Protein dietary supplements; Dietary supplemental drinks; Dietetic beverages adapted for medical purposes; Vitamin preparations; Fibre (Dietary -); Enzymes for medical purposes; Enzymes for veterinary purposes; Medicinal infusions; Dietary supplements for animals; Food supplements for veterinary purposes; Protein supplements for animals

The contested goods are the following:

Class 5: Pharmaceutical and veterinary preparations; Sanitary preparations for medical purposes; Dietetic food and substances adapted for medical or veterinary use, food for babies; Dietary supplements for humans and animals; Plasters, materials for dressings; Material for stopping teeth, dental wax; Disinfectants; Preparations for destroying vermin; Fungicides.

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.

Contested goods in Class 5

Pharmaceutical, veterinary preparations, Dietetic substances adapted for medical use; Dietetic food and substances adapted for medical or veterinary use, Dietary supplements for animals are identically contained in both lists of goods (including synonyms).

The contested Dietetic food adapted for medical use is included in the broad category of the opponent’s Foods adapted for medical use. Therefore, they are identical.

The contested Foods adapted for medical use are included in the broad category of the opponent’s Dietetic food. Therefore, they are identical.

The contested Dietary supplements for humans overlap with the opponent’s dietetic substances adapted for medical use.Therefore, they are identical.

The contested sanitary preparations for medical purposes have the same purpose as the opponent’s pharmaceutical preparations insofar as these goods are intended for treating or preventing a disease. They commonly move through the same distribution channels and originate from the same manufacturers that operate in the field of health-care supplies. Moreover, they are directed at the same consumers. Therefore, these goods are similar to a high degree.

The contested food for babies and the opponent’s dietetic substances adapted for medical use have the same purpose of providing nutrition and they may coincide in their producers and distribution channels. Therefore, they are similar.

The contested plasters, materials for dressings and the opponent’s pharmaceutical products have the same general purpose, namely to cure diseases, disabilities or injuries, and they coincide in their consumers and distribution channels. Therefore, they are similar.

The contested disinfectants are similar to the opponent’s pharmaceutical preparations because they can have the same purpose, producer, relevant public and distribution channels.

The contested preparations for destroying vermin may be used to prevent the risks to human or animal health posed by the species whose elimination is sought. As such, these goods and the opponent’s pharmaceutical products for human use have the same general medical purpose of improving human health or well-being. In addition, the use of the contested preparations may be complementary to that of the opponent’s pharmaceutical preparations, which may be used to treat ailments caused by the presence of, or contact with, vermin. Furthermore, the goods under comparison may be sold through the same distribution channels (e.g. pharmacies). Therefore, they are similar.

The contested material for stopping teeth, dental wax and the opponent’s pharmaceutical preparations are commonly sold through the same distribution channels and target the same public. Therefore, these goods under comparison are considered as similar to a low degree.

The contested fungicides include antimycotics with applications in the medical field. Therefore, these goods may have the same general medical-related purpose as the opponent’s pharmaceutical products and may be complementary. Furthermore, they may have the same distribution channels. These goods are similar to a low degree.

2. 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, similar to different degrees are directed at the public at large and at medical and pharmaceutical professionals as well as at business customers with specific professional knowledge or expertise, for example companies or businesses specialising in the agricultural sector and the cultivation of crops.

It is apparent from the case-law that, insofar as pharmaceutical preparations are concerned, the relevant public’s degree of attention is relatively high, whether or not issued on prescription (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).

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

In regards to some of the relevant goods, such as fungicides, the degree of attention may vary from average to high depending on the volume, price and frequency of the purchase of the goods.

3. The signs

GOUMY
Earlier trade mark	Contested sign

The relevant territory is France.

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 earlier mark is a word mark ‘GOUMY’, which does not bear any meaning for the relevant public. Therefore, it is distinctive.

The contested figurative mark is composed of a simple oval orange graphic element with two crossed yellow rulers. The verbal element ‘GUMMY’, which does not bear any meaning for the relevant public, is placed above the rulers. The verbal element ‘Line’ is placed below the rulers. It is a basic English word and similar to its French equivalent Ligne. Therefore, its meaning will be perceived, at least, by part of the relevant public. As it will be perceived as indicating a product line, this element is considered less distinctive than the other elements. Therefore, the verbal element ‘Line’ as well as the geometrical orange form, due to its ordinary character, are considered less distinctive than the other elements. The sign has no elements that are more dominant (visually eye-catching) than the other elements.

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).

Consumers generally tend to focus on the beginning or the top of a sign when they encounter a trade mark. This is because the public reads from left to right and from to top to bottom which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Visually, the signs coincide in the letters ‘G*UM*Y’. However, the signs differ in the additional letter ‘O’ of the earlier mark and the additional letter ‘M’, the additional verbal element ‘Line’ and figurative elements of the contested sign which have no counterparts in the other mark. It is to be noted that the verbal element ‘Line’ and the orange geometrical form, are considered weaker than average and that the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. Furthermore, as consumers generally tend to focus on the beginning and the top of a sign when they encounter a trade mark, the signs are considered visually similar to an average degree.

Aurally, the beginnings of the signs ‘GU’ (contested sign) and ‘GOU’ (earlier sign) are phonetically similar and coinciding phonetically the ending ‘MY’. Furthermore, both signs consist of two syllables. The oral differences caused by the additional letters ‘O’ and ‘M’ of the contested sign are limited. The signs differ also in the verbal element ‘Line’ which is considered weaker than average.

Taking into account all the above, the signs are aurally similar to an average degree.

Conceptually, although the public in the relevant territory will perceive the meanings of the contested mark, as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

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

4. 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.

5. 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).

Furthermore, 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).

As has been concluded above, the contested goods are found to be partly identical, partly similar to different degrees to the opponent’s goods and must be assessed from the point of view of public whose degree of attention is may vary from average to higher. Furthermore, the earlier mark enjoys a normal degree of distinctiveness and the signs are visually and aurally similar to an average degree, which similarity is based on the shared sequence ‘G*U*MY’. It is taken into account that, 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 covered are from the same or economically linked undertakings. Since the relevant consumers still have to rely in their imperfect recollection of marks, it is indeed highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods 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 on the relevant public. There is even a likelihood of confusion in regards to the contested goods that were found to be similar to a low degree to the opponent’s goods, as it is likely that the consumer will perceive the contested mark as a differently configured version of the earlier sign for these goods.

Therefore, the opposition is well founded on the basis of the opponent’s French trade mark registration No 154 172 230. It follows that the contested trade mark must be rejected for all contested goods.

As the earlier French trade mark registration No 154 172 230 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 85(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 Rule 94(3) and (6) and Rule 94(7)(d)(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

Irina SOTIROVA

André Gerd Günther BOSSE

Plamen IVANOV

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.