OPPOSITION No B 3 059 523

Meddrop Technology AG, Mühlebachstraße 72, 8008 Zürich, Switzerland (opponent), represented by Axel W. Schnickel, Uhlandstr. 58, 60314 Frankfurt/Main, Germany (professional representative)

a g a i n s t

Yiwu Siyu Cosmetic Appliance Co., Ltd., 6F, Building 2, No. 1569, Liuqing Road, Houzhai Street, Yiwu, Zhejiang, People´s Republic of China (applicant), represented by Sławomir Krzysztof Nowicki, Podczachy 27, 99-300 Kutno, Poland (professional representative).

On 17/07/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 059 523 is partially upheld, namely for the following contested goods

Class 21: Brushes; toothbrushes; abrasive sponges for scrubbing the skin; make-up removing appliances; cosmetic spatulas; cosmetic utensils; toilet sponges; powder puffs; eyebrow brushes; make-up brushes; perfume vaporizers; brooms.

2. European Union trade mark application No 17 898 202 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 898 202 for the word mark ‘seyor’. The opposition is based on, inter alia, German trade mark registration No 30 2013 059 445 for the word mark ‘Seyo’. The opponent invoked Article 8(1)(b) EUTMR.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs, and the relevant public.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s German trade mark registration No 30 2013 059 445 as it is the one that has more similarities with the contested one.

a) The goods

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

Class 3: Washing and cleaning preparations, soaps; perfumery; cosmetic preparations; essential oils; oral hygiene preparations; dental cleaning preparations; oral gel; oral toner (mouth wash); oral rinsing; oral ointment; toiletries (Body care); tissues impregnated with cosmetic cleaning preparations; tissues impregnated with cosmetic care preparations; body care and beauty preparations, especially body cleaning preparations, creams, lotions, fluids, gels, ointments, emulsions, mirco-emulsions, skin care preparations, hair care preparations, foaming masks, skin protection cream, make-up preparations, powder, skin cleaning preparations, shampoos, shower preparations, deodorants, shaving preparations, preparations for bath, sun protection preparations, cosmetic preparation for skin browning, cosmetic cleaning and care preparations for baby skin, skin oil for babies, baby powder, skin creams for babies; cosmetic care preparations for pregnancy skin, cosmetic preparations for preventing stretch marks; cosmetic hair care preparations; cosmetic anti- age and anti-wrinkle preparations; cosmetic anti- age and anti-wrinkle skin preparations; skin toner; cosmetic eye care preparations, especially eye cream and eye tonic water; cosmetic preparations for the regeneration of connective tissue; cosmetic preparations for leg and vein care; cosmetic anti- allergy-care preparations; cosmetic preparations for wound healing; cosmetic anti- itching preparations; antiperspirants; deodorants; cosmetic preparations for nail care and for application to mucosa.

Class 5: Hygienic preparations for medical purposes; antifungals; antibacterials; antivirals; medical anticoagulants; medical anaesthetics; medical skin care preparations; medical analgesics; pharmaceutical and veterinary preparations; medicals preparations in the form of micro-emulsions; intra- and transcutaneous pharmaceutical-medical injection preparations (preparations to the purpose of injection), especially water, solvents, suspensions, emulsions, inorganic and organic salts, anti-inflammatory injection preparations, analgesic, anaesthetic injection preparations, injection preparations for the treatment of neuralgia, eczema, neuro-dermatitis and diabetics; injection agents for medical purposes; topically, sub-, intra- and transdermally applicable preparations for skin and mucosa; topical preparations, gels, emulsions and micro-emulsions for the treatment of sports injuries, pain, rheumatism, neuropathy, neuralgia, gout , mycosis, infections, scabies, neurodermatitis, eczema, and haematoma.

Class 10: Chirurgical, medical and dental apparatuses and instruments, especially nebulizer for medical use; devices, especially nebulizers (atomizers) for producing inhalation preparations; devices, especially nebulizers, for producing of oxygen or concentrated oxygen for medical, especially topical application; devices, especially nebulizers for producing preparations enriched with oxygen for the medical, especially topical use.

Class 21: Cosmetic apparatuses and devices, especially atomizers, for cosmetic use.

The contested goods are the following:

Class 21: Bowls [basins]; glass flasks [containers]; porcelain ware; drinking vessels; watering cans; brushes; toothbrushes; abrasive sponges for scrubbing the skin; make-up removing appliances; cosmetic spatulas; cosmetic utensils; thermally insulated containers for food; brooms; crystal [glassware]; indoor terrariums [plant cultivation]; toilet sponges; powder puffs; eyebrow brushes; make-up brushes; perfume vaporizers.

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.

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

The term ‘especially’, used in in the opponent´s’ list of goods, indicates that the specific goods and services are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

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 contested abrasive sponges for scrubbing the skin; make-up removing appliances; cosmetic spatulas; cosmetic utensils; toilet sponges; powder puffs; eyebrow brushes; make-up brushes; perfume vaporizers fall into the opponent´s broader category of cosmetic devices, especially atomizers, for cosmetic use in Class 21. Therefore, they are identical.

The contested brushes; toothbrushes are highly similar to the opponent´s cosmeticpreparations in Class 3 as they have the same purpose. They usually coincide in producer, relevant public and distribution channels. Furthermore they are complementary.

The contested brooms are highly similar to the opponent´s cleaning preparations in Class 3 as they have the same purpose. They usually coincide in producer, relevant public and distribution channels. Furthermore they are complementary.

The contested bowls [basins]; glass flasks [containers]; porcelain ware; drinking vessels; watering cans; thermally insulated containers for food; crystal [glassware]; indoor terrariums [plant cultivation] consist of kitchen utensils that are specific tableware as well as indoor terrariums for plant cultivation. Therefore, these goods have no relevant points of contact with any of the opponent's goods in Class 21 that are specifically aimed at cosmetics. They do not have the same nature and/or purpose and are not complementary to each other or in competition. Furthermore, they do not target the same relevant public since they satisfy different needs and are not produced by the same undertakings. Moreover, even if some of these contested goods and some of the opponent's goods in Class 21 may be offered in the same larger supermarkets (such as kitchen utensils and cosmetic products), they would not be found in the same shelves or sections. Therefore, these contested goods are dissimilar to all of the opponent's goods in Class 21.

This is all the more true if we compare these contested goods with the remaining opponent’s goods in Class 3 (washing and cleaning preparations, cosmetics and toiletries), Class 5 (hygienic, pharmaceutical and veterinary preparations) and Class 10 (surgical and medical apparatus and instruments) since they do not have any relevant points of contact that could justify finding a level of similarity between them. They do not usually originate from the same producers. The goods at issue do not have the same purpose and they are not complementary or in competition with each other. The fact that the goods at issue might be aimed at the same public is not sufficient to consider that these goods are similar.

Enclosures B and C submitted by the opponent in order to justify the similarity between the opponent´s cosmetic apparatuses and devices in Class 21 and the above mentioned contested goods, do not change this finding, since they only contain a selection of cosmetics and beauty care products without any reference, for example, to the specific contested goods. Therefore, this argument has to be dismissed.

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 found to be identical or highly similar are directed at the public at large whose degree of attention is average.

c) The signs

Seyo	seyor
Earlier trade mark	Contested sign

The relevant territory is Germany.

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 ‘Seyo’ and ‘seyor’ are meaningless and, therefore, distinctive to an average degree.

Both signs are also word marks, and it is worth recalling that in case of word marks, it is the word as such that is protected and not its written form. Therefore, it is irrelevant whether the initial letter of both signs is written in upper- or lower-case letters.

Visually and aurally, the signs coincide in the string of letters/phonemes 'Seyo*', which make up the entirety of the earlier mark and all but the last letter of the contested sign. The only difference is in the final letter/phoneme of the contested sign, 'r', which has no counterpart in the earlier mark.

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

Therefore, the signs are visually and aurally similar to a high 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.

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 average.

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified. 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, Sabel, EU:C:1997:528, § 22).

In the present case, the goods are partly identical or highly similar and partly dissimilar. They target the public at large with an average degree of attention. The earlier mark has a normal degree of distinctiveness.

The signs are visually and aurally similar to a high degree. Indeed, the earlier word mark ‘Seyo’ is totally included in the contested sign, with the sole addition of a final letter 'r'. From the conceptual perspective, no comparison can be made as neither of the signs has a meaning.

Moreover, account should be taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s German trade mark registration No 30 2013 059 445.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or highly 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.

The opponent has also based its opposition on the following earlier trade mark:

- International trade mark registration No 1 351 887 designating the European Union, for the figurative mark in Classes 3, 5, 10 and 21.

Since this earlier mark is less similar to the contested sign as it includes a figurative device that is not present in the latter and covers protection for goods that are even more dissimilar to the ones that have been compared (see, e.g. the goods in Class 21, which are limited to aerosol dispensers, not for medical purposes), the outcome cannot be different with respect to goods for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods.

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, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Helen Louise MOSBACK

Alexandra APOSTOLAKIS

Alicia BLAYA ALGARRA

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.