CANCELLATION No 14 013 C (INVALIDITY)

Identa Dental Material GmbH, Anton-Flettner-Str. 3, 27472 Cuxhaven, Germany (applicant), represented by Law Firm Tark Grunte Sutkiene, Konstitucijos pr. 21 A, 08130 Vilnius, Lithuania (professional representative)

a g a i n s t

UAB "Medicinos linija", Karaliaučiaus g. 29, 78374 Šiauliai, Lithuania (EUTM proprietor), represented by Law firm IP Forma, Užupio g. 30, 01203 Vilnius, Lithuania (professional representative).

On 10/09/2018, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is rejected in its entirety.

2. The applicant bears the costs, fixed at EUR 450.

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

REASONS

The applicant filed an application for a declaration of invalidity against all the goods of European Union trade mark No 15 132 822 for the figurative sign shown below:

The application is based on inter alia, international trade mark registration No 1 030 764 designating the European Union ‘IDENTA’ (word mark). The applicant invoked Article 60(1)(a) EUTMR in connection with Article 8(1)(b) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that the goods under comparison are identical and similar and the relevant public is both the average consumer and the specialist health professional. The applicant puts forward that the dominant part of the EUTM is the term ‘i-dental’ because the other elements are descriptive, the figurative element is not highly stylised, the colour element is not distinctive and because the verbal element has a stronger impact on the consumer. The applicant quotes case law and the EUIPO Guidelines to back up its arguments. The applicant argues that the signs contain six identical letters in the same order, and all of the letters of the earlier mark are fully replicated in the dominant element of the contested EUTM with just the addition of a hyphen and the letter ‘l’ which are insignificant differences. The applicant argues that the signs are visually and phonetically highly similar and they cannot be compared conceptually as the dominant elements of both marks are invented words with no meaning. The applicant states that the earlier mark has a normal degree of distinctiveness and therefore, there is a likelihood of confusion for all of the contested goods.

The EUTM proprietor is the owner of two other Lithuanian marks, one for an identical sign to the contested EUTM and one for the figurative mark below:

The EUTM proprietor has submitted printouts containing the details of these marks. The EUTM proprietor states that the applicant in the present case also submitted oppositions based on a likelihood of confusion against these marks in Lithuania. However, the Appeals Division of the State Patent Bureau of the Republic of Lithuania on 24/10/2016 ruled on the oppositions and held that the two Lithuanian signs were not misleadingly similar to the applicant’s earlier mark which is the basis of this application, and this decision has not been appealed as of the time of submitting the observations. It submits a copy of this decision along with an English translation. The EUTM proprietor submits that the dominant part of the EUTM is the term i-dental, due to its ‘size, brighter colour and hollow-green inverse effect’. The EUTM proprietor contests the applicant’s arguments and insists that the signs are not visually similar, since the contested mark has a hyphen separating the ‘i’ and the word ‘dental’, as well as figurative elements, while the earlier mark is made up of a single word. Moreover, it also denies any phonetic similarity. In relation to the conceptual comparison, the EUTM proprietor points out that the earlier mark has no meaning while the contested EUTM has a clear meaning and therefore, the signs are not conceptually similar either. It quotes case law to back up its arguments. Consequently, it argues that the application should be rejected as the signs are dissimilar. Furthermore, it states that the relevant public for the goods in Classes 5 and 3 are different, as in Class 5 they are the professional public, whereas in Class 3 it is the general public. The EUTM proprietor argues that the goods in Class 5 have a different nature, purpose, method of use and origin to the goods in Classes 3 and 10 and are, as such, dissimilar, although it admits similarity of the goods in Class 5 of both marks. It claims that the relevant public for the similar goods in Class 5 is the specialist professional public with a higher degree of attention. The EUTM proprietor argues that the earlier mark contains the letters DENTA which will be recognised as referring to teeth and therefore, the earlier sign has a low degree of distinctiveness. The EUTM proprietor concludes that there is no likelihood of confusion due to the dissimilarity of the signs and that this is supported by the decision of the Lithuanian courts that it previously mentioned. It also submits a list of the different words for ‘dentist’ in all of the European languages and a printout of EUTMs and other marks that contain the word ‘DENTAL’.

The applicant repeats and expands its previous arguments and contests the EUTM proprietor’s arguments. The applicant points out that the EUTM proprietor admits that i-dental is the dominant part of the EUTM. The applicant contends that, in line with EUIPO practice, the protection offered by the registration of a word mark applies to the word stated in the application for the registration and the owner of the word mark can use it in any form, colour or style. Therefore, it argues that any variation in the stylization has to be great in order to find dissimilarity. It repeats its earlier arguments that the signs are similar and quotes case law to back up its arguments. The applicant contests the EUTM proprietor’s arguments on the phonetic similarity of the signs and insists that they are highly similar. The applicant argues that the EUTM proprietor has not shown that the average consumer will understand the word Dental and argues that in more than half of the EU the word ‘dentist’ has a completely different root than ‘dent’ so these consumers will not understand this word. It states that the EUTM proprietor admits similarity in relation to the goods in Class 5 and insists that the goods in Classes 3 and 10 are also similar and provides pairs from the EUIPO database to back up this argument. The applicant repeats its previous assertions regarding the relevant public and the distinctiveness of the earlier marks. It points out that the Office is not bound by the decisions of the national courts and therefore, the decision on the Lithuanian court is not relevant, and moreover, that it has appealed that decision. Therefore, it insists that there is a likelihood of confusion.

The EUTM proprietor confirms its previous arguments and contests the applicant’s arguments. It states that the term ‘Innovative Dental Products’ is certainly not negligible and cannot be ignored. It claims that all of the additional words, the hyphen, the stylization and the colours serve to distinguish the EUTM from the earlier mark. It insists that the signs are different visually, phonetically and conceptually and that there is no likelihood of confusion. The EUTM proprietor agrees that the goods in Class 5 are similar but contests that the remaining goods in Classes 3 and 10 are similar to Class 5. It contests the matches that the applicant provided from the similarity tool as they were for the general Class, whereas the goods were restricted by the use of the word ‘namely’ and as such, the earlier international mark is limited to these goods. The EUTM proprietor states that, for the goods in Class 5, only medical professionals and dentists in the course of their medical services would use these goods and they would be bought in specialist stores. Therefore, the EUTM proprietor argues that these goods are completely different to the earlier goods in Classes 3 and 10. The EUTM proprietor puts forward that for both Classes 5 and 10 the relevant public will only be the professional public who have a higher degree of attention, but for Class 3 it may also be the general public whose attention will be average. It insists that the distinctiveness of the earlier mark is low due to the common element ‘denta’ for dental products. Therefore, the EUTM proprietor denies any likelihood of confusion. The EUTM proprietor also submitted evidence to back up its assertions, like a dictionary definition of the word ‘dental’, a pronunciation document, an article entitled ‘Iphone: what the ‘I’ in apple’s handset name stands for’, and printouts from a number of countries around the EU which include ‘Dental’ in their name or description of their goods and services.

The applicant and EUTM proprietor submitted a further round of observations in which both contest the observations of the other party, and repeat, confirm and expound on their previous arguments while making their case to refute the other side’s arguments.

LIKELIHOOD OF CONFUSION — ARTICLE 60(1)(a) EUTMR IN CONNECTION WITH 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.

1. The goods

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.

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

DE 30 151 727

Class 5: Pharmaceutical products and substances used in dentistry, particularly, material for stopping teeth and dental cements.

IR 1 030 764

Class 5: Pharmaceutical products and materials for dental medicine, namely, direct and indirect restoration compounds, dental anesthetics for desensitizing teeth and gums, fissure sealing dental resins, plastic material for fabricating complete and partial denture liners/relines; dental repairing composites, dental impression materials, and dental varnishes.

The contested goods are the following:

Class 3: Bleaching preparations [decolorants] for cosmetic purposes; mouthwashes, not for medical purposes; dental bleaching gels; teeth whitening strips; dentifrices; denture polishes; preparations for cleaning dentures; cosmetics; pumice stone; polishing preparations; abrasives; cleaning preparations.

Class 5: Dental composite materials; lining materials for dental use; dental adhesives; fissure sealant for dental and dental technical purposes; dental cement; cements for dental prostheses; materials for tooth fillings; tooth prophylactics; materials for oral prophylaxis; medicated oral care gels; lubricants for medical use; abrasive pads for dental purposes; cotton for medical use; medical dressings, coverings and applicators; materials for tooth restoration; dental resins; dental resin for temporary bridges, crowns and veneers; dental materials for making models of teeth; materials for artificial teeth; corrosive agents for the surface treatment of teeth; dental varnishes for sealing teeth; plasters; cleaning solvents for removing adhesive plasters; dental alloys; dental polish; chemicals for pharmaceutical use; chemical preparations for medical purposes; medicines for dental purposes; dental impression materials; dental ceramic material.

Class 10: Needles for medical purposes; teeth protectors for dental purposes; surgical apparatus and instruments; dental burs; sets of artificial teeth; dentures; teething rings; artificial teeth; pins for artificial teeth; syringes for injections; injectors for medical purposes; cannulae; masks for use by medical personnel; lamps for medical purposes; medical apparatus and instruments; dental apparatus, electric; dental apparatus and instruments; mirrors for dentists; orthodontic appliances; gloves for medical purposes; thread, surgical; syringes for medical purposes; ultraviolet ray lamps for medical purposes; filters for ultraviolet rays, for medical purposes; spoons for administering medicine; suture needles; suture materials.

Some of the contested goods are identical to goods on which the application is based. For reasons of procedural economy, the Cancellation Division will not undertake a full comparison of the goods listed above. The examination of the application will proceed as if all the contested goods were identical to those of the earlier mark as this is the best scenario possible for the applicant’s case.

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 in Class 3 which were presumed to be identical, are directed at the public at large and also the professional in the dental sector, and for these goods the attention of the relevant public will range from average (for example in relation to mouthwash) to higher than average (for example in relation to Bleaching preparations [decolorants] for cosmetic purposes, teeth whitening strips). However, the goods in Classes 5 and 10 are directed only at the professional clients in the medical or dental fields with specific professional knowledge or expertise. The degree of attention for these goods will be high.

3. The signs

IDENTA
Earlier trade mark	Contested trade mark

The relevant territory is Germany and 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, bearing in mind their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The earlier mark is a word mark made up of the single term ‘IDENTA’. As this sign is a word mark it does not contain any element which is more dominant (visually eye-catching) than other elements. The term does not have any exact meaning in any of the relevant territories and therefore, as a whole it is distinctive. The suffix ‘DENTA’ may be understood as alluding to the word ‘dental’ or ‘dentist’ as ‘DENT/DENTA’ are commonly used in trade marks to indicate that they are dental goods or related service and as such, could allude to this concept. However, the fact that the sign is written as one word ‘IDENTA’ with no additional elements, and which has no meaning, it results in the sign as a whole being distinctive.

The contested mark is a figurative mark comprised of a lower case standard typeface letter ‘i’ which is outlined in green and white in the centre, a hyphen followed by the word ‘dental’ in a darker lower case standard typeface and with a separating vertical line between this part of the mark and on the right hand side the term ‘Innovative Dental Products’ written over two lines in smaller typeface depicted in a lighter green colour (see above). The letter ‘i’ is commonly used in trade marks to describe the Internet or something that is interactive. However, due to presence of the explanatory term ‘Innovative Dental Products’ within the sign, the consumer will probably assume that the letter ‘i’ refers to ‘Innovative’. The word ‘dental’ is descriptive of the type of goods or the target market for the goods of the contested mark and therefore is weak in the overall impression of the sign. The word ‘Innovative’ in English refers to something which is (of a product, idea, etc.) featuring new methods; advanced and original (extracted from the Oxford Online English dictionary on 03/09/2018) and is descriptive in relation to the goods. This word is similar to the equivalent word in many of the romance languages, like ‘innovado’ in Spanish, ‘innovativo’ in Italian, ‘innovant’ in French and ‘innovativa’ in Portuguese, but it is also similar to the German and Danish word ‘innovativ’, the Dutch word ‘innovatief’, the Romanian word ‘inovatoare’ etc. so the consumers in these countries will be able to understand the meaning of this word. However, some consumers may not understand this word, like for example, the non-English speaking average consumer in Hungary and Lithuania whose equivalent word is ‘újító’ and ‘novatoriškas‘, respectively, so for these consumers this word may be distinctive, although the professional consumer will still be able to recognize this word in Hungary and Lithuania due to its common usage in the sector. Moreover, it is noted that, from a recent survey on English proficiency, carried out by ‘Education First’, Hungarians were held to have a high proficiency level in English, being ranked 20^th worldwide with a percentage of 58.61% of the population understanding English, with Lithuanians being ranked 24^th with a percentage of 57.08%. So the consumers in the EU who will not understand these basic English words will be minimal. The term ‘Dental Products’ in English describes the goods, namely, they are different types of dental products or goods that will be used in relation to the teeth. The professional clients will understand the descriptive meaning of this term, and most of the average consumers will also understand it, due to the similarity of the words in many languages. The contested mark as a whole is comprised of a number of weak elements, that will be understood as being descriptive for a substantial part of the relevant consumers, namely, for the professional consumers and a large part of the average consumers. Therefore, it is the figurative layout and arrangement of the sign as a whole that adds the sufficient degree of distinctive character to the sign to be registered. The element ‘i-dental’, as it is larger and in a more striking typeface, is the most dominant (visually eye-catching) part of the sign.

Visually, the signs coincide in the letter sequence ‘I(..)‘DENTA’. However, in the earlier mark this string of letters is contained entirely within the single element of which the earlier mark is comprised, while in the contested EUTM these elements are split up by a hyphen. Moreover, the additional letter ‘l’ appears at the end of the word ‘dental’ in the contested sign. Furthermore, the contested EUTM contains the additional term ‘Innovative Dental Products’ and a figurative element which is comprised of the layout, font and colours of the sign, which have no counterpart in the earlier mark. The contested sign is much longer and more complex than the short single word of the earlier sign. The overall impression of the signs is very different due to the length, figurative aspects and additional terms of the contested EUTM which contrast to the short single verbal element of the earlier sign. Therefore, the signs are similar to only a low 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 ‛I-DENTA’, present identically in both signs. However, in the contested EUTM there is an additional letter ‘L’ at the end of ‘DENTAL’ which somewhat alters the pronunciation of the word. Moreover, there are additional elements in the contested sign which have no counterpart in the earlier mark, although it is doubtful that the relevant consumer will actually pronounce these elements due to their smaller depiction at the end of the sign and their descriptive character for most customers. Therefore, the signs are phonetically highly similar.

Conceptually, reference is made to the previous findings on the meanings of the different elements of the signs mentioned above. The letters ‘DENTA’ of the earlier mark, in relation to dental goods, may be understood by a significant part of the public as referring to ‘dental’ or ‘dentist’. However, when placed in the single word element as ‘IDENTA’ the sign has no exact meaning. The contested mark contains ‘i-dental’ which is a clear reference to ‘dental’ and also the ‘i’ is explained by the term ‘Innovative Dental Products’ as referring to ‘innovative’. The concept of the EUTM is clearly understandable to all consumers who understand English in the EU, but it will also be understood by many other consumers, as the words in English are also very similar to many of the corresponding words in other languages as described above. Both signs may allude to something to do with ‘dental’ or ‘dentist’. The earlier mark has no clear meaning while the EUTM does have a clear concept for a substantial part of the consumers, and moreover, that meaning is descriptive of the goods. Little if any weight can be given to a coinciding element that is descriptive, especially, when the signs overall have other elements and distinctive parts. Therefore, for these consumers the signs are conceptually not similar.

For the consumers who will not understand the word ‘DENTAL’ or the term ‘INNOVATIVE DENTAL PRODUCTS’, they will view the earlier sign as one fanciful word with no meaning, while the contested EUTM will be viewed as a term comprised of two distinctive and dominant verbal elements ‘i-dental’ which are fanciful and an additional three distinctive elements ‘Innovative Dental Products’ which are distinctive but less dominant overall in the impression of the sign. However, for these consumers, as the signs have no meaning, a conceptual comparison is not possible and the conceptual aspect does not influence the assessment of the similarity of the signs.

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 applicant did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, 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 from the perspective of the public in the relevant territory, although, in relation to the goods for which the sign is registered, the sign will definitely allude to ‘dental’ or ‘dentist’ and as such, is not particularly strong. Therefore, the distinctiveness of the earlier mark must be seen as lower than average due to the presence of a non‑distinctive element in the mark as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The signs have been found to be visually only similar to a low degree, phonetically the signs are highly similar and conceptually the signs are either not similar or no conceptual comparison can be made between the signs. The goods in conflict have been assumed to be identical for the present purposes. The earlier mark has a lower than average degree of distinctiveness. The relevant public will be the average consumer and the professional public in relation to the goods in Class 3 and their level of attention will be average in relation to the goods at issue. However, for the goods in Classes 5 and 10 the relevant consumer is the specialist professional public in the field of medicine or dentistry and in relation to these goods their attention will be high. The Cancellation Division takes note of the phonetic similarities between the signs but considers that the clear visual and conceptual differences between the signs, in particular, that the earlier mark is a short single word mark that has no clear meaning, while the contested sign is a long and complex figurative mark with many different elements and colours and which will have a clear meaning. Therefore, the relevant public will be able to clearly distinguish the signs. This is compounded by the fact that any similarity between the signs results from an element which is non-distinctive for the goods at issue and the attention of the public will range from average to high so they will be able to spot the differences and distinguish the signs. Therefore, the differences outweigh the similarities in the present case and the Cancellation Division considers that there is no likelihood of confusion between the signs.

The applicant contends that, in line with EUIPO practice the protection offered by the registration of a word mark applies to the word stated in the application for the registration and the owner of the word mark can use it in any form, colour or style. Therefore, it argues that any variation in the stylization has to be high in order to find dissimilarity. In this respect the Cancellation Division points out that this premise is not entirely true. Indeed a word mark can be used in different colours on the packaging of goods, however, if the stylisation or form of the mark becomes very figurative then it could be determined that the distinctive character of the mark had been altered and it would not be afforded protection for such use. Trade marks should be used as registered and if a trade mark is a verbal mark and is used in a highly stylized and colourful manner then it may not be protected for such use. This argument however, is moot in the present case as the signs are not identical and it is not merely the figurative element that differentiates the signs as has been pointed out above. Therefore, this argument is rejected.

In comparing the marks it is necessary to take into account the way the marks look, the way they will be pronounced and any meaning that they may have. It is well established that an overall assessment must be made, bearing in mind the interdependence of the various criteria. In the present case that assessment is complicated by the fact that the contested mark and the applicant’s earlier mark are of a fundamentally different nature. The applicant’s mark is a pure word mark, while the contested mark is a composite mark consisting of verbal and figurative elements. The difficulty resides in the fact that one is not able to compare like with like. One thing, however, is clear: the presence of significant figurative elements in the contested mark means that there is an appreciable difference between the marks visually. Those elements are:

(1)     the stylised writing,

(2)     the use of the colour green throughout,

(3)     the use of a stylised letter ‘i’ at the beginning,

(4)     the use of a hyphen after the letter ‘I’,

(5) the use of a letter ‘l’ after ‘i-denta’,

(6) the use of a vertical line after ‘i-dental’,

(7) the use of the words ‘Innovative Dental Products’.

The applicant seeks to minimize those visual differences by arguing that its mark, being protected as a word mark, can be used in any form, colour or style whatsoever. That argument is misconceived. It rests on a fundamental error concerning the scope of protection of word marks. The basic rule is that a word mark is capable of being used in any standard script or type face. The scope of protection of a word mark is determined in the light of that rule. In assessing whether an earlier word mark is likely to be confused with a later figurative mark consisting of or containing a stylized word element it is legitimate to proceed on the assumption that the earlier word mark might be used in any standard script or type face. It would not, however, be fair, vis-à-vis the EUTM proprietor, to base the comparison of the marks on the assumption that the applicant is free to imitate all figurative elements in the contested mark, including arbitrarily chosen, highly distinctive elements. Such an approach would distort the comparison and unfairly load the scales in favour of the applicant.

In the contested mark the seven figurative elements referred to above are, taken together, at least as distinctive and important as the word element ‘denta’. They are sufficient to justify the finding that there is a significant visual difference between the marks.

The applicant quoted numerous decisions of the Boards of Appeal and the European Courts in order to prove that the signs were similar (04/03/2009, T‑168/07, PTR Professional Tennis Registry, EU:T:2009:51; 27/10/2010, T‑365/09, Free, EU:T:2010:455; 23/11/2011, T‑483/10, Pukka, EU:T:2011:692; decision of 10/02/2011, R1243/20140-1 ALENSYS/ALENTIS; decision of 01/06/2011, R1543/2010-1 ‘AZULIB/AZURIL’; 25/10/2012, T‑552/10, Vital & Fit, EU:T:2012:576; 17/09/2015, T‑323/14, Bankia / BANKY, EU:T:2015:642; 15/10/2015, T‑642/13, she (fig.) / SHE et al., EU:T:2015:781; 25/11/2015, T‑248/14, MASAFI JUICE (fig.) / masafi, EU:T:2015:880. However, these decisions can be distinguished from the present case, as in the previous decisions they all both contained an identical weak word (or at least one identical weak word) in both signs or the common root of both signs was not descriptive or weak. In the present case the earlier mark contains the suffix ‘DENTA’ whereas the contested sign contains the word ‘DENTAL’, so they are not identical and indeed, the contested mark also contains additional words, symbols, colours and a figurative layout. Moreover, in the present case, due to the goods at issue, this element is also descriptive of the goods and therefore, of less importance in the overall impression of the signs. Therefore, the Cancellation Division distinguishes the present application from the cited case law and cannot apply the same reasoning.

The EUTM proprietor also refers to a previous national decision of the Lithuanian Courts to support its arguments in relation to a case between the two parties at issue in the present application, but relating to the same or similar signs protected as national rights held by the EUTM proprietor and which do not involve the contested EUTM. In this decision the Lithuanian Court held that the signs were not ‘misleading similar’.

However, decisions of national courts and national offices regarding conflicts between identical or similar trade marks at national level have no binding effect on the Office since the European Union trade mark regime is an autonomous system which applies independently of any national system (13/09/2010, T‑292/08, Often, EU:T:2010:399).

Even though previous national decisions are not binding, their reasoning and outcome should be duly considered, particularly when the decision has been taken in the Member State that is relevant to the proceedings.

In the present case, the previous case referred to by the EUTM proprietor is relevant in that it deals with the same signs as those that are issue in the present case. However, the Cancellation Division notes that this decision has been appealed by the applicant and as such, it is not final. Moreover, the term ‘misleadingly similar’ is not the same as ‘confusingly similar’, however small the difference may be, it must still be noted. Therefore, the Cancellation Division takes note of the opinion of the Lithuanian Courts but does not rely on the outcome in that decision as the final authority on which to base the decision in the present application, but has carried out its own independent examination on the merits of the present application.

Therefore, considering all of the above, the Cancellation Division finds that there is no likelihood of confusion on the part of the public. This would be the case even if the goods were identical. Therefore, the cancellation application must be rejected.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.

Since the applicant is the losing party, it must bear the costs incurred by the EUTM proprietor in the course of these proceedings.

According to Article 109(7) EUTMR and Article 18(1)(c)(ii) EUTMIR, the costs to be paid to the EUTM proprietor are the representation costs, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

María Belén IBARRA DE DIEGO

Nicole CLARKE

Rhys MORGAN

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 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.