OPPOSITION No B 3 061 299

L&R Medical UK Limited, 1 Wellington Court Newborough Road Needwood, Burton-On-Trent, Staffordshire DE13 9PS, United Kingdom (opponent), represented by Zeuner Summerer Stütz, Nußbaumstr. 8, 80336 München, Germany (professional representative)

a g a i n s t

Alliance UniChem IP Limited, 2 The Heights, Brooklands, Weybridge KT13 0NY,

United Kingdom (applicant), represented by Jamie Sala-Scott, 1 Thane Road,

Nottinghan NG2 3AA, United Kingdom (employee representative).

On 24/02/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 061 299 is rejected in its entirety.

2. The opponent bears the costs.

REASONS

The opponent filed an opposition against all the goods, and later restricted its extent to some of the goods in Classes 5 and 10, of European Union trade mark application No 17 152 117 ‘ALVITA’ (word mark). The opposition is based on European Union trade mark registration No 1 385 939 (figurative mark). The opponent invoked Article 8(1)(a) and (b) EUTMR.

PROOF OF USE

Proof of use of the earlier mark was requested by the applicant. However, at this point, the Opposition Division does not consider it appropriate to undertake an assessment of the evidence of use submitted (15/02/2005, T‑296/02, Lindenhof, EU:T:2005:49, § 41, 72). The examination of the opposition will proceed as if genuine use of the earlier mark had been proven for all the goods invoked, which is the best light in which the opponent’s case can be considered.

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.

a) The goods

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

Class 5: Tapes; bands; bandages; belts.

Class 10: Compression hosiery and orthopaedic supports, support articles for surgical or medical use: surgical stockings, wrist supports, knee supports, ankle supports, elbow supports, back supports; support bandages, garnments and panty hose; socks adapted to provide graduated compression; bandages, belts, corsets and pads; stockings for varices; trusses.

The contested goods are, after a restriction of the extent of the opposition made by the opponent on 04/02/2019, the following:

Class 5: Hydrocellular plaster; silicone foam dressing; surgical bandages; medical bandages; gauze bandage; gauze; gauze for use as dressing; crepe bandage; elastic bandage; dressing kit; dressing kit procedure pack; gauze impregnated with liquid paraffin; absorbent articles for sanitary purposes and for use by persons suffering from incontinence; pants for use by persons suffering from incontinence; absorbent pants and panties for incontinence; diapers for incontinence (for medical purposes); adult diapers, sanitary pads and incontinence pads for use by persons suffering from incontinence; incontinence wipes; all in one adult nappies; bandages; bandages for the prevention of blisters; bandages for skin wounds; hygiene bandages; bandages for dressings; bunion pads; bunion cushions; compresses; cotton wool for pharmaceutical purposes; cotton wool for medical purposes; corn pads; corn plasters; eye pad for medical use; medical dressings; surgical dressings; wound dressings; first aid kits; filled first aid boxes; gauze for dressings; incontinence pads; incontinence pants; plasters; medicated plasters; plasters for blisters; tapes for medical purposes; pre-injection wipes; sanitizing wipes; impregnated antiseptic wipes; impregnated medicated wipes; wipes for medical use; transdermal patches; adhesive patches for medical purposes; skin patches for the transdermal delivery of pharmaceuticals; pain relief patch; herpes patch.

Class 10: Orthopaedic hosiery; therapeutic hosiery; medical support hosiery; medical hosiery; compression hosiery; graduated compression hosiery; hosiery for medical, surgical and/or prophylactic purposes; disposable sheets and underlays for use by persons suffering from incontinence; sheets and underlay pads made of paper and cellulose for incontinent persons; absorbent sheet material for patient care or management; medical supports for the body; back supports for medical purposes; shaped padding for supporting parts of the body for medical use; surgical gloves; wrist supports; wrist supports for medical use; elasticated supports for the wrist; support bandages; ankle supports; knee supports; knee pads for medical use; gloves for medical use; latex gloves for medical use; protective gloves for medical use; disposable protective gloves for medical purposes; orthopaedic splints; orthopaedic bandages; orthopaedic cushion; orthopaedic foot cushion; cushions for medical purpose; pressure relief pads and cushions; thumb support for medical use; wrist support for medical use; toe separators (orthopaedic); toe relief pads (orthopaedic); toe cushion; toe end cushion; heel pads for orthopaedic use; heel supports for orthopaedic use; heel cushions; cervical collars; back support; abdominal support; elbow support.

Some of the contested goods are identical or similar to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark which, for the opponent, is the best light in which the opposition can be examined.

b) Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods assumed to be identical are directed at the public at large and at professionals with specific professional knowledge or expertise.

The degree of attention may vary from average to higher than average, depending on the specialised nature of the goods, the frequency of purchase and their price.

c) The signs

	ALVITA
Earlier trade mark	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The earlier mark is a figurative mark, consisting of the stylised verbal element ‘ACTIVA’ in rather standard black upper case letters but for the letter ‘V’, which is in white and enclosed in a black triangle. The element ‘ACTIVA’ will be understood as relating to ‘active’ by the entire relevant public, since it is very close to the equivalent word in all languages in the European Union, like for example in Danish, Swedish, German, Hungarian and Romanian: aktiv, English: active, Finnish: aktiivinen, French: actif/ive, Spanish: activa, Portuguese: ativo, Italian: attivo, Czech: aktivní, Croatian: activan, Slovenian: activna, Slovak: aktívny, Polish: aktywna, Estonian: aktiivne, Latvian: aktivs, Lithuanian: aktyvus, meaning someone/something that is, for example, busy, involved, energetic, strong, quick, in operation, working (information extracted inter alia from Collins English/German/French/Spanish/Portuguese/Italian dictionary on 14/02/2020 at https://www.collinsdictionary.com). Since the relevant goods in Classes 5 and 10 can have active ingredients or work actively to support the body parts they are aimed for, this element is at least slightly weak for the goods concerned.

The figurative element of the black triangle encompassing the letter ‘V’ of the earlier mark has no specific meaning in relation to the relevant goods. It is, therefore, distinctive.

The contested sign is a word mark; ‘ALVITA’. It has no meaning as a whole, and therefore, it is distinctive. However, although this mark is composed of one verbal element, the relevant consumers may break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58). Therefore, a part of the relevant public may perceive the element ‘VITA’ in the mark, meaning for example ‘life, living’ for the Italian-speaking part of the public, ‘white’ for the Swedish-speaking part of the public and ‘beef’ for the Romanian-speaking part of the public. In any way perceived, it has no meaning in relation to the relevant goods, and is therefore distinctive. For the part of the public that does not perceive any meaning at all in the mark, it is also distinctive.

The element ‘V’ and the black triangle of the earlier sign is the dominant element as it is the most eye-catching (26/05/2016, R 2037/2015-1, activemed / ACTIVA (fig.) et al).

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 signs coincide in the letters ‘A**I*A’ and the additional letters ‘T’ and ‘V’ in different positions, which are however in rather hidden positions in the middle of the marks. Therefore, they differ in the letters *CT*V* of the earlier sign and the letters *LV*T*’ of the contested sign, and in the figurative elements of the earlier sign.

The General Court has held that the same number of letters in two marks is not, as such, of any particular significance for the relevant public, even for a specialised public. Since the alphabet is made up of a limited number of letters, which, moreover, are not all used with the same frequency, it is inevitable that many words will have the same number of letters and even share some of them, but they cannot, for that reason alone, be regarded as visually similar. In addition, the public is not, in general, aware of the exact number of letters in a word mark and, consequently, will not notice, in the majority of cases, that two conflicting marks have the same number of letters (25/03/2009, T‑402/07, ARCOL / CAPOL, EU:T:2009:85, § 81-82; 04/03/2010, C‑193/09 P, ARCOL / CAPOL, EU:C:2010:121).

Therefore, the signs are similar to only a very 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 first letter ‘A’, in the fourth letter ‘I’ and the last letter ‘A’. There are also two more letters and their sounds in common in the signs, namely a ‘T’ and a ‘V’, which however do not raise an aural similarity since they are in positions where they will go rather unnoticed. Therefore, the signs differ in the sound of the second letter ‘C’, the third letter ‘T’ and the penultimate letter ‘V’ of the earlier sign, and in the sound of the second and third letters ‘LV’ and the fifth letter ‘T’ of the contested sign.

Therefore, the signs are aurally similar to a very low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. By a part of the public, the signs will be associated with a dissimilar meaning, and therefore the signs are conceptually not similar.

For the part of the public that does not perceive any meaning in the contested sign, only the earlier mark has a meaning. 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.

d) Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The opponent 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, despite the presence of a weak element in the mark, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

In the present case, the goods are assumed to be identical. They are directed at the public at large and at professionals with an average to higher than average degree of attention.

The signs are visually and aurally similar to only a very low degree, due to some coinciding letters, and conceptually dissimilar or not similar. The distinctiveness of the earlier mark is normal. Therefore, the differences between the verbal elements and the stylisation of the earlier mark create a sufficient distance between the overall impressions given by the signs. The consumers will be able to safely distinguish between the signs at issue and will not assume that the goods offered come from the same or economically linked undertakings.

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

Given that the opposition is not well founded under Article 8(1) EUTMR, it is unnecessary to examine the evidence of use filed by the opponent.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR because the signs are obviously not identical.

COSTS

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

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

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR, the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein. In the present case, the applicant did not appoint a professional representative within the meaning of Article 120 EUTMR and therefore did not incur representation costs.

The Opposition Division

Anna BAKALARZ

Lena FRANKENBERG GLANTZ

Martin MITURA

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.