OPPOSITION No B 3 062 181

Juan Carlos Aviles Morrondo, Paseo de la Castellana 173, 28046 Madrid, Spain (opponent), represented by Molero Patentes y Marcas S.L., Paseo de la Castellana 173-Bajo Izq., 28046 Madrid, Spain (professional representative)

a g a i n s t

Lyrus Life Sciences PVT Ltd., No. 22, 7th Cross Jaibharath Nagar, 560033 Bengaluru, India (applicant), represented by Potter Clarkson LLP, The Belgrave Centre Talbot Street, Nottingham NG1 5GG, United Kingdom (professional representative).

On 05/07/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 062 181 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 566 721 for the word mark ‘LYRUS’, namely against all of the goods in Class 5 and some of the services in Class 35. The opposition is based on Spanish trade mark registration No 2 022 953 for the word mark ‘LYNUX’. 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 on which the opposition is based are the following:

Class 5: Spagyric homeopathic medicine to treat dyspepsia, flatulence and heartburn.

The contested goods and services are the following:

Class 5: Pharmaceutical products.

Class 35: Retail of pharmaceutical products and preparations; business management and commercial management in relation to pharmaceutical products and preparations; management of business affairs and commercial functions in relation to pharmaceutical products and preparations; industrial commercial enterprises in relation to pharmaceutical products and preparations, namely, import and export services of pharmaceutical products and preparations; export and import of pharmaceutical products, preparations and formulations; buying and selling of pharmaceutical products, preparations and formulations.

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

The term ‘namely’, used in the applicant’s list of services to show the relationship of individual goods and 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 methods of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 5

The contested pharmaceutical products include, as a broader category the opponent’s spagyric homeopathic medicine to treat dyspepsia, flatulence and heartburn. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

Contested services in Class 35

Retail services concerning the sale of particular goods are similar to a low degree to those particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public. Therefore, the contested retail services of pharmaceutical products and preparations and buying and selling of pharmaceutical products, preparations and formulations are similar to a low degree to the opponent’s spagyric homeopathic medicine to treat dyspepsia, flatulence and heartburn.

The contested business management and commercial management in relation to pharmaceutical products and preparations; management of business affairs and commercial functions in relation to pharmaceutical products and preparations; industrial commercial enterprises in relation to pharmaceutical products and preparations, namely, import and export services of pharmaceutical products and preparations; export and import of pharmaceutical products, preparations and formulations are dissimilar to the opponent’s goods in Class 5. The natures, purposes and methods of use of these services are different. Furthermore, the relevant public is different as these services are aimed at supporting, helping or improving other businesses, and therefore target the professional public.

2. Relevant public — degree of attention

The average consumer of the category of products and services 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 and services found to be identical or similar to a low degree are directed at the public at large and the professional public.

It is apparent from the case-law that, insofar as pharmaceutical preparations, whether or not issued on prescription, are concerned, the relevant public’s degree of attention is relatively high (15/12/2010, T‑331/09, Tolposan, EU:T:2010:520, § 26; 15/03/2012, T‑288/08, Zydus, EU:T:2012:124, § 36).

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

3. The signs

LYNUX	LYRUS
Earlier trade mark	Contested sign

The relevant territory is Spain.

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 signs are word marks. It should be noted that the protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics that the mark might possess (22/05/2008, T‑254/06, RadioCom, EU:T:2008:165, § 43).

Neither of the marks in question has meaning for the relevant goods and services. Therefore, both marks are distinctive.

Visually, the signs are relatively short, composed of five letters and with the same beginning, ‘LY***’, and fourth letter, ‘U’. However, they differ in the letters ‘**N*X’ in the earlier sign and ‘**R*S’ in the contested sign. Moreover, these relatively short signs enable the relevant public to capture all the details of the signs, especially taking into account the high level of attention of the public for the relevant goods and services, that will therefore not only focus on the beginning of the signs.

Therefore, contrary to the view of the opponent, the signs are visually only similar to a low degree.

Aurally, the signs coincide in the beginning of the distinctive verbal elements ‘LY***’ and the fourth letter ‘U’. However, they differ in the middle letter ‘N’ of the earlier mark and ‘R’ of the contested sign, which phonetically is a notable difference, as it is much stronger and reinforces the aural difference. The ending, ‘X’ of the earlier and ‘S’ of the contested sign, is a further difference. However, aurally this might be slightly similar for at least part of the public in the relevant territory.

Therefore, the signs are aurally similar to at most an average degree

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, 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 opponent did not explicitly claim that his mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

While the marks cannot be defined as short signs, where even small differences are easily notable, it is also true that the signs are not very long (each consists of only five letters). It must be recalled that the shorter a sign, the more easily the public is able to perceive all its single elements (06/07/2004, T‑117/02, Chufafit, EU:T:2004:208, § 48; 20/04/2005, T‑273/02, Calpico, EU:T:2005:134, § 39). Consequently, the differences in their third (R/N) and last letter (X/S) respectively have to be taken into account when assessing the likelihood of confusion between the marks.

Consumers generally pay greater attention to the beginning of a word sign than to the end (25/03/2009, T‑109/07, Spa Therapy, EU:T:2009:81, § 30 and the case-law cited therein). However, the Board notes that this general rule does not prevail in all cases and cannot, in any event, undermine the principle that an examination of the similarity of marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a mark as a whole and does not examine its individual details (27/06/2012, T‑344/09, Cosmobelleza, EU:T:2012:324, § 52 and the case-law mentioned therein; 15/07/2015, R 3080/2014‑2, KOPPARBRIGHT / ParBright, § 54).

The goods and services are partly identical, partly similar to a low degree and partly dissimilar; the relevant public, namely the general and professional public, has a relatively high degree of attention as the goods and services are related to pharmaceuticals and the distinctiveness of the earlier sign is normal.

The coincidences in the visual and aural aspect, which lead to a low or at most average degree of similarity (respectively), and the fact that neither sign has a meaning that could help the relevant consumer to differentiate between them, are not enough to conclude that there is a likelihood of confusion for the relevant public. For a public with a high degree of attention, the differences in the signs are sufficient to exclude any likelihood of confusion between the marks.

Considering all the above, even in relation to the identical goods, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

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, he 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.

The Opposition Division

Renata COTTRELL

Astrid Victoria WÄBER

Martin EBERL

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.