OPPOSITION No B 3 097 224

Curados B.V., Bekkerstraat 141, 3572 SG, Utrecht, Netherlands (opponent), represented by De Merkplaats B.V., Herengracht 227, 1016 BG, Amsterdam, Netherlands (professional representative)

a g a i n s t

Olmosen IVS, Maglemosevej 34, Marbjerg, 2640 Hedehusene, Denmark (applicant).

On 17/08/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 097 224 is partially upheld, namely for the following contested goods and services:

Class 5: Medicated and sanitising soaps and detergents; cleansing solutions for medical use.

Class 44: Medical services.

2. European Union trade mark application No 18 089 412 is rejected for the above goods and services. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 18 089 412 for the word mark ‘CURADEX’. The opposition is based on European Union trade mark registration No 17 870 778 and on Benelux trade mark registration No 1 030 781, both for the word mark ‘CURADOS’. The opposition is also based on European Union trade mark registration No 17 870 780 for the figurative mark . The opponent invoked Article 8(1)(a) and (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 Benelux trade mark registration No 1 030 781 for the word mark ‘CURADOS’.

1. The goods and services

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

Class 5: Veterinary preparations and articles; sanitary preparations and articles for veterinary purposes; dietary supplements and dietetic preparations for veterinary purposes; sanitary preparations for veterinary purposes; disinfectants for veterinary purposes; bacteriological, biological, chemical preparations for veterinary purposes; chemical reagents for veterinary purposes; enzymes for veterinary purposes; cultures of micro-organisms for veterinary purposes; lotions and greases for veterinary purposes.

Class 35: Publicity and commercial affairs; business management and office functions; provision of commercial information; opinion polling; market canvassing, research and analysis; business management and organisation consultancy; office functions for the processing of requests in the field of the development, registration and licensing of medicines and veterinary medicines; lobbying for commercial purposes, including promoting the interests of members of associations by means of maintaining and promoting business contacts with the government and with national and international organisations and institutions; business organisation, business economics and commercial research; compilation of statistics; the aforesaid services for pharmaceutical companies and the pharmaceutical industry; business networking services; business expert services; providing of statistical business information in the scientific, veterinary, medical, pharmaceutical and biotechnological field; professional networking in the field of scientific, veterinary, medical, pharmaceutical and biotechnological research; organisation of trade fairs for advertising purposes; information and consultancy relating to the aforesaid services; all the aforesaid services whether or not provided via electronic channels, including the internet.

Class 42: Scientific and technological services and research and design relating thereto in the field of veterinary medicines and pharmaceuticals; research and development for the pharmaceutical industry; services in the field of industrial analysis and industrial research in the field of veterinary medicines and pharmaceuticals; design and development of computer hardware and software; research, design and development for veterinary, medical and pharmaceutical purposes; laboratory research in the field of veterinary medicines and pharmaceuticals; testing, authentication and quality control; information and consultancy relating to the aforesaid services; the aforesaid services also via electronic channels, including the internet.

Class 44: Pharmaceutical services; information services relating to veterinary pharmaceuticals; veterinary services; medical services; animal healthcare services; providing of medical and veterinary facilities; providing of medical and pharmaceutical information; pharmaceutical advice; providing of medical and veterinary pharmaceutical information; databases in the field of veterinary pharmaceutical preparations; consultancy and information regarding the aforesaid services; all the aforesaid services whether or not provided via electronic channels, including the internet; all the aforementioned services for veterinary purposes only.

Class 45: Lobbying services, other than for commercial purposes; litigation consultancy; consultancy regarding industrial property and licenses; management of IP rights in relation to veterinary medicines by means of licence agreements; management of industrial property and intellectual property by licensing for others (legal services); legal services relating to the negotiation and drafting of contracts in the field of intellectual and industrial property rights; licensing of intellectual and industrial property rights; information and consultancy relating to the aforesaid services; all the aforesaid services whether or not via electronic channels, including the internet.

The contested goods and services are the following:

Class 3: Skin, eye and nail care preparations; body cleansing foams.

Class 5: Medicated and sanitising soaps and detergents; cleansing solutions for medical use.

Class 44: Medical services.

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 3

The contested skin, eye and nail care preparations and body cleansing foams belong to the category of cleaning and beauty care preparations for the human body and contrary to the opponent’s opinion, they do not have anything in common with the opponent’s veterinary preparations and articles in Class 5, which are articles specifically intended for use with animals. Their natures and purposes are different, and they do not usually coincide in manufacturers, distribution channels or relevant public. Finally, they are neither complementary nor in competition. They are therefore dissimilar.

These goods are also dissimilar to all the remaining goods in Class 5, which are all for veterinary purposes. They have different natures and purposes and are neither complementary nor in competition. Furthermore, they are likely to have different distribution channels, are usually produced by different undertakings and target different consumers.

The contested goods have nothing in common with the opponent’s services in Class 35, which are business management, business administration, advertising and office functions services, nor with the services in Class 42, which are scientific, research and development services, all related to the veterinary and pharmaceutical field, nor with the services in Class 44, which are medical and animal healthcare services nor with the services in Class 45, which are legal services. They clearly differ in nature, since goods are tangible while services are intangible. The goods and services serve different needs and have different purposes, methods of use and do not share the same distribution channels. They are neither complementary nor in competition. They do not target the same consumers. Moreover, they are not likely to come from the same kind of undertakings. For these reasons, they are considered dissimilar.

Contested goods in Class 5

The contested medicated and sanitising soaps and detergents; cleansing solutions for medical use overlap with the opponent’s sanitary preparations and articles for veterinary purposes. They are therefore considered identical.

Contested services in Class 44

Medical services are identically contained in both lists of services.

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 and services found to be identical are directed at the public at large and at professionals with specific knowledge or expertise in the pharmaceutical and medical field.

The degree of attention is considered to be high owing to the nature of the goods, namely all the goods refer to human or animal health.

In particular, medical and veterinary professionals have a high degree of attentiveness when prescribing medicines and other supplements or preparations. Non-professionals also have a higher degree of attention, regardless of whether the goods in question are sold without prescription, as these goods affect their own or their pet’s state of health.

3. The signs and the distinctiveness of the earlier mark

CURADOS	CURADEX
Earlier trade mark	Contested sign

The relevant territory is the Benelux.

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 consist of one single verbal element with no meaning in any of the three official languages of the relevant territory, namely Dutch, French and German. Therefore, and since the parties have not argued differently, they must be considered to have an average degree of distinctiveness.

Since the earlier trade mark as a whole has no meaning for any of the goods and services in question from the perspective of the public in the relevant territory – and since the opponent did not claim enhanced distinctiveness – the distinctiveness of the earlier mark must be seen as normal.

Visually and aurally, irrespective of the pronunciation rules in the different parts of the territory (as regards the aural aspect), the signs coincide in their string of letters ‘CURAD’ and they differ in their endings ‘OS/EX’. 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. In the present case, given that the signs only differ in two letters (placed at the end) out of seven, the signs are considered 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.

4. Global assessment, other arguments and conclusion

The goods and services are partly identical and partly dissimilar and target the public at large as well as professionals. The degree of attention is high.

The signs are visually and aurally similar to a high degree and conceptually not comparable because of the lack of concepts for the relevant public. The earlier mark has a normal degree of distinctiveness.

Account is 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). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54). In the present case, consumers will recall the identical string of letters at the beginning of the signs and will not pay so much attention to their differing endings.

The differing last two letters do not suffice to enable consumers to safely distinguish between the signs when they encounter them in the marketplace.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the relevant public and therefore the opposition is partly well founded on the basis of the opponent’s Benelux trade mark registration No 1 030 781.

It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical 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 marks:

• European Union trade mark registration No 17 870 778 for the word mark ‘CURADOS’.

• European Union trade mark registration No 17 870 780 for the figurative mark .

Since these marks cover the same or a narrower scope of goods and services, the outcome cannot be different with respect to goods and services for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods and services.

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. 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

Sandra IBAÑEZ

Sylvie ALBRECHT

Rosario GURRIERI

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.