OPPOSITION No B 2 895 053

Naturpharma Bulgaria Eood, 21 ‘Yanko Sofliski volvoda’ Str., en.A, 1164, Sofia, Bulgaria (opponent), represented by Ivan Nikolov Ivanov, IP Consulting Ltd., 6-8, Mitropolit Kiril Vidinski Str., vh. 8, floor 2, office 2, 1164, Sofia, Bulgaria (professional representative)

a g a i n s t

ZP Ivan Panchev ET, 5 Tsar Samuil Str., 2920 Mosomishte, Bulgaria (applicant), represented by Antoaneta Georgieva, 97, Pernik Street ap.8, 1309 Sofia, Bulgaria (professional representative).

On 17/09/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 895 053 is partially upheld, namely for the following contested services:

Class 35: Business management organisation; business administration; business management related to the management of chain stores; the bringing together, for the benefit of others, of meat and meat products, milk and milk products, fish, poultry and game, meat extracts, edible oils and fats, birds eggs and egg products, enabling consumers to conveniently view and purchase those goods; presentation of goods on communication media, for retail and wholesale purposes; electronic commerce services, namely, providing information about products via telecommunication networks for advertising and sales purposes; retail and wholesale services, implemented through shops for retail and wholesale, through local representatives and distributors, through communication means, through website and/or through online shop for retail and wholesale, in relation to the following goods: meat and meat products, milk and milk products, fish, poultry and game, meat extracts, edible oils and fats, birds eggs and egg products.

2. European Union trade mark application No 16 485 807 is rejected for all the above services. It may proceed for the remaining goods and services.

3. Each party bears its own costs.

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As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain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from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626.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 opponent filed an opposition against all the goods and services of European Union trade mark application No 16 485 807 for the figurative mark . The opposition is based on Bulgarian trade mark registration No 97 681 for the figurative 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.

1. The goods and services

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

Class 5: Adhesive patch; denture adhesive adhesives; flyfish adhesives; flyfish adhesives; adhesive tapes for medical purposes; acaricides; acitonin; albumin nutritional supplements; alginates for pharmaceutical purposes; alginate food supplements; algicides; aldehydes for pharmaceutical purposes; alkaline iodides for pharmaceutical purposes; alkaloids for medical purposes; alcohol for pharmaceutical purposes; aluminum acetate for pharmaceutical purposes; amino acids for veterinary purposes; amino acids for medical purposes; analgesics; anesthetics; antibiotics; antiscratch preparations; antioxidant tablets; antiparasitic straps for animals; antiparasitic preparations; antiperspirant preparations; antipyretics; antirheumatic bracelets; antirheumatic rings; antiseptics; antiseptic cotton; anthelmintics; anthelmintic agents; first aid kits [portable] [full]; first aid medicine kits [full]; aseptic cotton; asthmatic tea; acetates for pharmaceutical purposes; almond milk for pharmaceutical purposes; bacterial poisons; bacterial preparations for medical and veterinary use; bacteriological preparations for medical and veterinary purposes; bactericides; conditioners for medical purposes; medical conditioner conditioners; baby nappies; non-medical cigarettes for medical purposes; protein preparations for medical purposes; protein nutrients for medical purposes; protein milk; herbal teas for medicinal purposes; banding bandages; organic preparations for veterinary purposes; biological preparations for medical purposes; organic tissue cultures for veterinary purposes; organic tissue cultures for medical purposes; biocides; bismuth

basic nitrate for pharmaceutical purposes; bismuth preparations for pharmaceutical purposes; medical candy; tobacco removals for pharmaceutical purposes; flour for pharmaceutical purposes; bromine for pharmaceutical purposes; bronchosparing preparations; vaginal lavages; vaseline for medical purposes; vaccines; lime preparations for pharmaceutical purposes; for medical purposes; vesicants [skin-blistering drugs]; veterinary preparations; wine stone [tartrate] for pharmaceutical purposes; vitamin preparations; mouthwash for medical purposes; hydrogen peroxide for medical purposes; charcoal, wood, for pharmaceutical purposes; gases for medical purposes; gallic acid for pharmaceutical purposes; absorbent pants for people suffering from incontinence; pants, ladies, tight-fitting, for menstruation; giaacol for pharmaceutical purposes; glycerine for medical purposes; glycerophosphates; glucose for medical purposes; glucose food supplements; bracelets for medical purposes; tire for dental purposes; gummy [tropical plant milk juice] for pharmaceutical purposes; gurun [tropical tree] medical conditioner; wound healing sponges; ladies dressings; deodorants for clothing and textiles; disinfectants; disinfectants for hygiene purposes; disinfectants for chemical toilets; disinfecting pastilles; disinfection sticks; deodorants for air freshening; deodorants, other than for human or animal consumption; detergents for medical purposes; diagnostic preparations for veterinary purposes; diagnostic preparations for medical purposes; diastasis for medical purposes; deactivation reagents for biomarkers for medical purposes; digestive preparations for pharmaceuticals (digestive preparations); digitiline [digitalis preparation]; dietetic substances for medical purposes; dietary drinks for medical purposes; dietetic foods for medical purposes; feed additives for medical purposes; yeast for pharmaceutical purposes; chewing gum for medical purposes; eucalyptus for pharmaceutical purposes; eucalyptol for pharmaceutical purposes; extract of hops for pharmaceutical purposes; elixirs [pharmaceutical preparations]; enzymes for veterinary purposes; enzymes for medical purposes; enzyme preparations for veterinary purposes; enzymatic preparations for medical purposes; enzyme food supplements; enzyme food supplements; esters for pharmaceutical purposes; ethers for pharmaceutical purposes; gelatin for medical purposes; mercury ointments; animal washes; jojoba [healing]; sugar for medical purposes; dental abrasives; dental amalgams; dental amalgams of gold; dental lacquer; fingerprints for fingerprinting; dental cement; dental cements; isotopes for medical purposes; insecticides; irish lichens for medical purposes; iodine for pharmaceutical purposes; iodides for pharmaceutical purposes; iodine tincture; iodoform; drug capsules; casein food supplements; mud baths; potassium salts for medical purposes; calomel [mercury chloride]; camphor for medical purposes; camphor owl for rubbing; camphor oil for medical purposes; cantaridis [powder of dried Spanish fly]; capsules for pharmaceutical purposes; yeast [plant] for medical purposes; quebraho [wood] for medical purposes; cedar wood as an insecticide repellent; acid potassium tartrate [wine stone], for pharmaceutical purposes; acids for pharmaceutical purposes; oxygen for medical purposes; oxygen baths; cotton sticks for medical purposes; cocaine; collar (eye solution); colloid for pharmaceutical purposes; compresses; dill for medical purposes; medicated butter for medical purposes; bark of galipea febrifuga for medical purposes; bark of conddurango for medical purposes; tins for pharmaceutical purposes; bone cement for surgical and orthopaedic purposes; creosote for pharmaceutical purposes; crown bark; blood for medical purposes; blood plasma; haemostasis; cultures of microorganisms for medical and veterinary purposes; cook; laxatives [laxatives]; lactose; paws; aerosol preparations; leopolds; medicines for veterinary purposes; mascara medications; medicines to relieve constipation; medicaments for dental purposes; medicaments for human use; flax flour for pharmaceutical purposes; linseed oil as a food additive; linseed for pharmaceutical purposes; glue for fishing of flies; lecithin for medical purposes; lecithin dietary supplements; healing tea; healing mud; healing herbs; medicated feedingstuffs; lint, short-flax cotton, for medical purposes; pharmaceutical lozenges; lotions for veterinary purposes; dog lotions; lotions for pharmaceutical purposes; lubricants for intimate purposes; lupulin [for hops] for pharmaceutical purposes; magnesium oxide for pharmaceutical purposes; fats [essential] for veterinary purposes; fats [medical]; malt for pharmaceutical purposes; mango corn for pharmaceutical purposes; dressing gauze; massage ointments or oils; tooth fillings [for seals]; medical infusions; medical roots; medical oils; medical oils; medical drinks; medical preparations for slimming; hair color stimulating preparations; medical alcohol; mild water for pharmaceutical purposes; pharmaceuticals; menthol; ointment used for frosting parts of the body for pharmaceutical purposes; ointments for sunburn; ointments for pharmaceutical purposes; mineral water for medical purposes; mineral water salts; mineral food supplements; myrobalan cortex for pharmaceutical purposes; milk sugar [lactose]); milk fat; dairy ferments for pharmaceutical purposes; milk powder [for babies]; modeling wax for dentists; pencil for warts; headache pencils; purple horn for medical purposes; seawater for healing baths; medical blankets for medical purposes; a drink of malt milk for medical purposes; drugs; drugs for medical purposes; sodium bicarbonate for pharmaceutical purposes; sodium salts for medical purposes; non-sticker for medical purposes; neuroleptics; starch for dietetic or pharmaceutical purposes; lead [bullet] water; opiates; opium; organo-therapeutic preparations; herbal infusions for pharmaceutical purposes; cereal waste [for medical purposes]; poison for rats; poisons; slimming tea for medical purposes; cooling sprays for medical purposes; purifying; cleaning agents; eyewashes; cotton for medical purposes; parasiticides; pharmaceutical pastilles; pectin for pharmaceutical purposes; nappies for pets; diapers for escaping people; pepsin for pharmaceutical purposes; peptones for pharmaceutical purposes; pearl powder for medical purposes; pesticides; pyrethrum powder; leeches for medical use; patches for medical purposes; pads, soft, during breastfeeding; pads, soft, swelling of the toe; lining pants [hygiene]; medical supplies; porcelain for dental prostheses; contact lens cleaners; dressings [curative]; eye dressings for medical purposes; bath preparations, curative; preparations for the treatment of burns; preparations for the treatment of acne; dressing preparations; preparations for reducing sexual activity; dentifrice preparations; moth protection preparations; air purifiers; medical preparations for flushing; preparations for soil sterilization; preparations for the treatment of frosty places; preparations for destruction of harmful animals; preparations for destruction of harmful plants; preparations for the destruction of a sponge causing dry rot; preparations for the destruction of maggots; preparations for destroying mice; preparations for destroying flies; preparations for the eradication of parasites; preparations of aloe vera for pharmaceutical purposes; sunburn preparations for pharmaceuticals; preparations containing microelements for human and veterinary use; belts for hygiene nappies [ladies’ dressings]; cattle flushing; dogfoods; propolis for pharmaceutical purposes; protein supplements for animals; protein food additives; rings [protective] for leg cuffs; candy sticks for pharmaceutical purposes; purgatives; royal jelly [for medical purposes]; radium for medical purposes; radioactive substances for medical purposes; solutions for contact lenses; solvents for removing adhesive patches; corrosive substances for pharmaceutical purposes; cored pencils; shoulder bandages for surgical purposes; reactive paper for medical or veterinary purposes; raven roots for pharmaceutical purposes; x-ray contrast media for medical purposes; repellents for dogs; insect repellents; codliver oil; fish food for medical purposes; castor oil for medical purposes; sarsaparilla [a type of vine] [for medical purposes]; semen for artificial insemination; sulfur powder for pharmaceutical purposes; sulfur sticks [disinfectants]; sero-therapeutic drugs; serums; siccatives [drying agents] for medical purposes; synapse for pharmaceutical purposes; mustard paws; mustard patches; mustard oil for medical purposes; syrups for pharmaceutical purposes; laxative from the root of a Mexican plant; cake [sweet root] for pharmaceutical purposes; resin for medical purposes; bath salts for medical purposes; salts for inhalation; salts for medical purposes; salts for mineral water baths; alloys of precious metals for dental purposes; auxiliary additives for medical purposes; headache remedies; antiperspirants; anti-perspiration remedies; appetite suppressants for medical purposes; stem cells for veterinary purposes; stem cells for medical purposes; soil sterilizing preparations; sterilizing preparations; steroids; strychnine; sulfonamides [medicines]; suppositories; sleeping agents; weight loss tablets; appetite suppressant tablets; tanning tablets; menstrual swabs; incense, as an insecticide repellent; therapeutic bath preparations; thermal water; turpentine for pharmaceutical purposes; turpentine oil for pharmaceutical purposes; thymol for pharmaceutical purposes; medical tinctures; pharmacies for pharmaceuticals; tonic [drugs]; tranquilizers [tranquillizers]; grasses for smoking for medical purposes; fabrics impregnated with pharmaceutical lotions; tobacco extracts [insecticides]; sedatives [sedatives]; pharmaceutical preparations; pharmaceutical preparations for skin care; pharmaceutical preparations for the treatment of dandruff; phenol for pharmaceutical purposes; ferments for pharmaceutical purposes; fluorine for pharmaceutical purposes; formaldehyde for pharmaceutical purposes; phosphates for pharmaceutical purposes; fumigants for medical purposes; fungicides; paper for flying insects; paper for mustard paws; paper for mustard patches; paper resistant to moths; hematogen; hemoglobin; hemorrhoidal preparations; hemostatic pencils; herbicides; hygienic ladies’ pants; hygienic towels; hygienic soft pads; hygienic men’s pants; hygiene napkins and napkins; hygiene dressings; hygroscopic cotton; hygroscopic wool; hydrazine; hydrastinin; chemicals for the treatment of vine diseases; chemico-pharmaceutical preparations; chemical contraceptives; chemical preparations for veterinary purposes; chemical preparations for diagnosis of pregnancy; chemical preparations for the treatment of phylloxera; medical preparations for medical purposes; chemical preparations for mold treatment; chemical preparations for pharmaceutical purposes; chemical preparations against wheat germ; chemical conductors for electrocardiographic electrodes; chemical reagents for medical or veterinary purposes; chemical reagents for medical or veterinary purposes; quinine for medical purposes; quinine crust for medical purposes; quinoline for medical purposes; surgical implants consisting of living tissues; surgical adhesives; surgical dressings; chloral hydrate for pharmaceutical purposes; chlorated anthracene oil [parasiticide]; chloroform; bread for diabetics; hormones for medical purposes; baby food; nutrients for micro-organisms; food additives; animal feed additives; yeast food supplements; linseed food supplements; food additives from wheat germ; food additives from royal jelly; culture media for bacteriological cultures; chronical pollen additives; chronical additives from propolis; cellulose esters for pharmaceutical purposes; cellulose ethers for pharmaceutical purposes; cement for animal hooves; edible vegetable fiber [non-food].

Class 35: Providing on-line business and commercial information; subscriptions to newspapers [for others]; subscriptions for telecommunication services [for others]; import and export agencies; commercial information agencies; administrative processing of customer orders; administrative management of subcontracting companies; administrative management of hotels; updating and maintaining data in computer databases; updating of advertising materials; cost analysis; business management of athletes; business audits; business efficiency assessment of business efficiency; business management for freelance providers; business management of third party reimbursement programs; public relations; reproduction of documents; design of advertising materials; drafting of paychecks; compilation of statistics; invoices issuing; market research; commercial research; economic forecasting; human resources consultancy services; commercial management consultancy services; consultancy in the field of trade organization; commercial management and organization consultancy; commercial management consultancy; marketing; typewriting services; recruitment; sponsoring recruitment; promotion of sales [for others]; on-line advertising on a computer network; optimization of search systems; website optimization - traffic; organization of exhibitions for commercial or advertising purposes; organization of fashion shows with a promotional purpose; organizing auctions; organization of trade fairs for commercial or advertising purposes; providing an on-line market for the purchase and sale of goods and services; rental of vending machines; rental of office machines and apparatus; rental of advertising billboards; rental of advertising equipment; rental of advertising time in all means of communication; rental of advertising space and time; rental of shopping stands; rental of photocopying machines; subcontracting (commercial support); assisting commercial management; stacking of showcases; assistance in the management of commercial or industrial enterprises; completing tax returns; press-review; пей per клик реклама; providing business information via a website; provision of commercial information and advice to consumers [trade consultancy in shops]; presentation of goods; presentation of retail goods for the purpose of sale by means of communication; providing commercial and corporate contact information; receiving phone messages [for absent subscribers]; production of advertising films; opinion poll; market research; commercial research; professional consultancy in the field of trade; psychological testing for personnel selection; publishing of advertising texts; radio advertising; distribution of samples; distribution of promotional material; distribution of promotional material by mail [leaflets, prospectuses, brochures, samples]; advertising; outdoor advertising; posters advertising; advertising via postal orders; advertising via television; advertising agencies; secretarial services; systematization of information in computer databases; procurement for third parties [purchase of goods or services for other enterprises]; shorthand services; accounting services; gathering information in computer databases; creating ad texts; compilation of CVs for others; compilation of account statements; word processing; telemarketing services; message transcription [administrative activity]; labor markets; retail and wholesale of pharmaceutical, veterinary, sanitary and medical preparations; business information; commercial ratings; commercial reports; commercial intermediary services; commercial management of licensing of goods and services to third parties; search in computer databases [for others]; business project management; computer file management; management of transactions in the arts; tax return services; artistic layout services for advertising purposes; services relating to negotiation and conclusion of commercial transactions for the account of third parties; mock-up services relating to advertising and presentation of goods; price comparison services; relocation services; photocopying services.

The contested goods and services are the following:

Class 29: Milk and milk products; meat, fish, poultry and game; meat extracts; birds eggs and egg products; edible oils and fats; cows’ milk; sheep milk; goat milk; organic milk; skimmed milk; prostokvasha [soured milk]; soured milk; acidophilus milk; yogurt; low fat yoghurts; dairy products; drinks made from dairy products; milk based drinks [milk predominating]; milk-based beverages; drinks based on yogurt; drinking yogurts; flavoured milk beverages; chilled dairy desserts; low fat dairy spreads; yogurts containing fruits; cheese; kashkaval (yellow cheese); cows’ milk cheese; sheep’s milk cheese; goats’ milk cheese; white brined cheese; soft cheese; blue cheese; processed cheese; low fat cheese; ready grated cheese; strained cheese; smoked cheese; fresh white cheese; cancoillotte; cheese spreads; cheese containing spices; cheese containing herbs; fresh uncured cheese; cheese preparations; quark curd cheese; curd; curd preparations; cream [dairy products]; powdered cream [dairy products]; whipped cream; smetana [sour cream]; butter; garlic butter; butter with herbs; butter preparations; butter for use in cooking; fresh meat; frozen meat; smoked meat; salted meats; dried meat; prepared meat; sliced meat; packaged meats; sausage meat; processed meat products; food pastes made from meat; meat spreads; frozen meat products; lard; mincemeat [chopped meat]; meatballs; kebapcheta (minced meat with spices in cylindrical form); sausages; smoked sausages; frankfurters; salami; uncooked sausages; pastarma (jerky); bacon.

Class 35: Business management organisation; business administration; business management related to the management of chain stores; the bringing together, for the benefit of others, of meat and meat products, milk and milk products, fish, poultry and game, meat extracts, edible oils and fats, birds eggs and egg products, enabling consumers to conveniently view and purchase those goods; presentation of goods on communication media, for retail and wholesale purposes; electronic commerce services, namely, providing information about products via telecommunication networks for advertising and sales purposes; retail and wholesale services, implemented through shops for retail and wholesale, through local representatives and distributors, through communication means, through website and/or through online shop for retail and wholesale, in relation to the following goods: meat and meat products, milk and milk products, fish, poultry and game, meat extracts, edible oils and fats, birds eggs and egg products.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

The term ‘namely’, used in the applicant’s list of services to show the relationship of individual services to a broader category, is exclusive and restricts the scope of protection only to the services specifically listed.

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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 29

The contested milk and milk products; meat, fish, poultry and game; meat extracts; birds eggs and egg products; edible oils and fats; cows’ milk; sheep milk; goat milk; organic milk; skimmed milk; prostokvasha [soured milk]; soured milk; acidophilus milk; yogurt; low fat yoghurts; dairy products; drinks made from dairy products; milk based drinks [milk predominating]; milk-based beverages; drinks based on yogurt; drinking yogurts; flavoured milk beverages; chilled dairy desserts; low fat dairy spreads; yogurts containing fruits; cheese; kashkaval (yellow cheese); cows’ milk cheese; sheep’s milk cheese; goats’ milk cheese; white brined cheese; soft cheese; blue cheese; processed cheese; low fat cheese; ready grated cheese; strained cheese; smoked cheese; fresh white cheese; cancoillotte; cheese spreads; cheese containing spices; cheese containing herbs; fresh uncured cheese; cheese preparations; quark curd cheese; curd; curd preparations; cream [dairy products]; powdered cream [dairy products]; whipped cream; smetana [sour cream]; butter; garlic butter; butter with herbs; butter preparations; butter for use in cooking; fresh meat; frozen meat; smoked meat; salted meats; dried meat; prepared meat; sliced meat; packaged meats; sausage meat; processed meat products; food pastes made from meat; meat spreads; frozen meat products; lard; mincemeat [chopped meat]; meatballs; kebapcheta (minced meat with spices in cylindrical form); sausages; smoked sausages; frankfurters; salami; uncooked sausages; pastarma (jerky); bacon are all foodstuffs consumed on a daily basis, whereas the opponent’s goods in Class 5 are pharmaceuticals and other preparations for medical or veterinary purposes, sanitary preparations, nappies, lotions, dentifrices, food for babies, food additives, dietary supplements intended to supplement a normal diet or to have health benefits and replace meals, and dietetic food and beverages adapted for medical or veterinary use. These are essentially substances prepared for special dietary requirements with the purpose of treating or preventing disease and/or products, substances or combinations of substances for treating or preventing disease in people, animals or plants, as well as sanitary preparations for personal hygiene and specially prepared nutritious substances for babies. They do not have the same distribution channels, as the opponent’s goods are usually offered in pharmacies and/or dietetic sections of stores while the contested goods are usually found in supermarkets and other food outlets. Furthermore, these goods will most likely originate from different manufacturers and, taking into account that they target people with different nutritional needs, they have different purposes (medical, curative and therapeutic versus nutritive purposes) and will not be in competition with each other. These goods are therefore dissimilar.

The opponent’s assertion that its goods in Class 5 are similar to the contested goods in Class 29 must be set aside. Although some of the goods under comparison may somehow have in common their nutritional aspect, it is apparent that they do not have the same nature; for example, the opponent’s baby food refers to food eaten by babies and toddlers because they are physically incapable of eating any other type of food or because it is medically required that they eat this particular type of food (i.e. milk substitutes, cereal preparations, fruit purees, vegetable (and meat) purees, all these adapted for the special needs of babies). They are intended for babies and different from the goods in Class 29, which are ordinary foodstuffs. Consequently, they are not interchangeable with one another either. The fact that the goods may fall under the same general indication of foodstuffs does not automatically mean that they are of the same nature. The opponent argues that the goods may be used as supplements or additives to each other; however, goods are complementary if there is a close connection between them, in the sense that one is indispensable (essential) or important (significant) for the use of the other in such a way that consumers may think that responsibility for the production of those goods or provision of those services lies with the same undertaking (see, to that effect, 11/05/2011, T‑74/10, Flaco, EU:T:2011:207, § 40; 21/11/2012, T‑558/11, Artis, EU:T:2012:615, § 25; 04/02/2013, T‑504/11, Dignitude, EU:T:2013:57, § 44). Complementarity has to be clearly distinguished from use in combination where goods/services are merely used together, whether by choice or convenience (e.g. bread and butter). This means that they are not essential for each other (16/12/2013, R 634/2013-4, ST LAB (fig.) / ST, § 20). The opponent also claims that food additives, supplements and baby food are often sold in the same commercial outlets, namely supermarkets. However, the relevant public is aware that the goods sold in supermarkets come from a multitude of independent undertakings, and it is only when the goods are sold in the same section of supermarkets that this factor will favour similarity. The examples given by the opponent of dietetic foods (i.e. sugar-free and gluten-free products) cannot be taken into account, since these goods are not included in the earlier sign’s list of goods in Class 5.

Contested services in Class 35

The contested business management organisation; business management related to the management of chain stores include, as broader categories, or overlap with, the opponent’s business information. Since the Opposition Division cannot dissect ex officio the broad categories of the contested services, they are considered identical to the opponent’s services.

The contested presentation of goods on communication media, for retail and wholesale purposes are included in the broad category of the opponent’s presentation of goods. Therefore, they are identical.

The contested electronic commerce services, namely, providing information about products via telecommunication networks for advertising and sales purposes overlap with the opponent’s advertising. Therefore, they are identical.

The contested business administration services are intended to help companies with the performance of business operations and, therefore, the interpretation and implementation of the policy set by an organisation’s board of directors. These services consist of organising people and resources efficiently so as to direct activities toward common goals and objectives. Therefore, they are similar to the opponent’s business management for freelance providers, which are intended to help companies manage their business by setting out the strategy and/or direction of the company. The services under comparison both fall within the broader category of business services, and they have the same purpose. Furthermore, they usually have the same providers and relevant public.

The contested the bringing together, for the benefit of others, of meat and meat products, milk and milk products, fish, poultry and game, meat extracts, edible oils and fats, birds eggs and egg products, enabling consumers to conveniently view and purchase those goods; retail and wholesale services, implemented through shops for retail and wholesale, through local representatives and distributors, through communication means, through website and/or through online shop for retail and wholesale, in relation to the following goods: meat and meat products, milk and milk products, fish, poultry and game, meat extracts, edible oils and fats, birds eggs and egg products are considered similar to the opponent’s retail and wholesale of pharmaceutical, veterinary, sanitary and medical preparations. The services at issue have the same nature since both are retail and wholesale services, the same purpose of allowing consumers to conveniently satisfy different shopping needs, and the same method of use.

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 services found to be identical or similar are directed at the public at large and at business customers with specific professional knowledge or expertise. The public’s degree of attentiveness may vary from average to high, depending on the specialised nature or terms and conditions of the goods and services purchased.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is Bulgaria.

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).

Both marks are figurative marks. The earlier mark is composed of the verbal element ‘moeto-zdrave’ in an oval frame. The verbal elements are the Roman equivalent (transliteration) of the Cyrillic words ‘моето здраве’, which will be understood by the vast majority of the relevant public as ‘my health’. A link that affects the distinctiveness of this element can be made with some of the relevant services, because it alludes to health benefits of the goods that are the subject of the retail and wholesale services (i.e. in the field of pharmaceutical, veterinary, sanitary and medical preparations); consequently, these elements are deemed to have a lower than average degree of distinctiveness for those services. However, with respect to the remaining services, these elements are fully distinctive.

The applicant claims that the earlier sign’s verbal element ‘moeto-zdrave’ would be read and pronounced in the relevant territory only by the part of the public that is familiar with the Roman alphabet and that the rest of the public would not be able to read this element or would read it with difficulty. Although it cannot be excluded that some members of the public might not understand the Roman alphabet, this would be only a minority of the public. The Opposition Division will not consider this part of the public in the assessment below, as this would lead to the assessment of a scenario concerning a small part of the public, which would have no bearing on the final outcome of the case. This takes into account that there is no need to establish that all actual or potential consumers of the relevant goods or services are likely to be confused (20/07/2017, T‑521/15, Diesel v EUIPO, EU:T:2017:536, § 69).

In addition, a two-leaf device is depicted at the top right-hand side of the frame in the earlier mark, alluding, together with the green colours used in the sign, for a part of the public, to the natural origin of the goods offered through the relevant retail and wholesale services or to the environmentally friendly approach of the company rendering those services. The relevant consumers are extremely conscious of such aspects of consumption and are accustomed to seeing various leaf devices in relation to a wide variety of goods and services. This element is therefore weak.

Outside the frame, in a smaller size, is the verbal element ‘.com’. This element is widely known and used throughout the relevant territory as the top-level domain originally corresponding to commercial sites on the internet. It will therefore not be perceived as an indicator of the commercial origin of the relevant services. Consequently, the impact of this non-distinctive element is limited when assessing the likelihood of confusion between the marks. All these verbal elements are written in rather standard lower case letters in shades of green.

The contested sign consists of the verbal elements ‘моето здраве’ (моето Зgраве in lower case), depicted in a rather basic handwriting-style font. These elements will be understood by the relevant public as ‘my health’ in Cyrillic letters. The degree of distinctiveness of these verbal elements is also considered lower than average because a connection with some of the relevant services can be made, since they allude to the idea that the services relate to foodstuffs that are beneficial for one’s health; in relation to the remaining relevant services, however, these elements are fully distinctive.

The figurative elements of the contested sign consist of a large circle within which is the depiction of a piece of lined paper and a green hand writing the abovementioned verbal elements, and they are distinctive. A four-leaf clover in green appears between the verbal elements; as mentioned above and similarly to the figurative element of the earlier mark, it alludes, for a part of the public, to the natural origin of the goods offered or to the environmentally friendly approach of the company rendering the services and is therefore weak.

Account must be taken of the fact that that 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).

Visually, the verbal elements ‘moeto-zdrave’ and ‘моето Зgраве’ coincide in their sequence of vowels; the signs also coincide in the green colours of some of their figurative elements. They differ in their remaining letters and figurative elements. Taking into account the varying degrees of distinctiveness of their coinciding and differing elements, it is concluded that the signs are visually similar to a low degree.

Aurally, although the signs are written in different alphabets, the pronunciation of the verbal elements ‘moeto-zdrave’ and ‘моето здраве’, of the earlier sign and contested mark respectively, will be identical. The pronunciation differs in the earlier sign’s additional verbal element ‘.com’, which has no counterpart in the contested mark. Reference is made to the conclusions reached above regarding the distinctiveness of the elements of the signs. Therefore, notwithstanding the lower than average distinctiveness of the verbal elements ‘moeto-zdrave’ and ‘моето здраве’ in relation to some of the relevant services, the signs are aurally highly similar, as the other aurally relevant element of the earlier mark is completely devoid of distinctive character and has even less impact.

Therefore, the signs are aurally highly similar.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Bearing in mind the varying degrees of distinctiveness of the elements discussed above, the earlier sign’s additional, non-distinctive, verbal element ‘.com’ and the conceptual differences arising from the figurative elements of the signs (some of which are of limited distinctiveness), it is concluded that, as the signs coincide in the identical concept of ‘my health’, although it is allusive for some of the relevant services, the signs are conceptually highly 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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as lower than average for some of the services in question, namely retail and wholesale of pharmaceutical, veterinary, sanitary and medical preparations in Class 35. The mark has a normal degree of distinctiveness for the remaining services, in relation to which it has no meaning from the perspective of the public in the relevant territory.

5. Global assessment, other arguments and conclusion

The appreciation of the likelihood of confusion depends on numerous elements and, in particular, on the recognition of the trade mark on the market, on the association that the relevant public might make between the two marks and on the degree of similarity between the signs and the goods (recital 11 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sàbel, EU:C:1997:528, § 22).

In the present case, the relevant services are partly identical or similar and partly dissimilar. The earlier mark has a lower than average degree of distinctiveness in relation to some of the relevant services and a normal degree of distinctiveness in relation to the others. The relevant public is the public at large and business customers, and the public’s degree of attentiveness varies from average to high. The signs are visually similar to a low degree and aurally and conceptually highly similar.

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/services covered are from the same or economically linked undertakings.

Indeed, it is 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 services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49). Bearing in mind the significant commonalities found between the signs, it is concluded that the relevant public could believe that the services found to be identical or similar came from the same undertaking or economically linked undertakings.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Bulgarian public that is familiar with the Roman alphabet, which is a significant part of the public, and therefore the opposition is partly well founded on the basis of the opponent’s Bulgarian trade mark registration. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public is sufficient to reject the contested application.

It follows from the above that the contested trade mark must be rejected for the services found to be identical or similar to those of the earlier trade mark.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Boyana NAYDENOVA

María del Carmen COBOS PALOMO

Benoit VLEMINCQ

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.