OPPOSITION No B 2 791 716

Lusomedicamenta – Sociedade Técnica Farmacêutica, S.A., Estrada Consiglieri Pedroso, n°69 b Queluz De Baixo, 2730-055 Barcarena, Portugal (opponent), represented by J. Pereira Da Cruz, S.A., Rua Victor Cordon, 14, 1249-103 Lisboa, Portugal (professional representative)

a g a i n s t

Natiris – Centro Dietético, S.A., Centro Empresarial Sintra-Estoril VIII, fracções A/B, Estrada de Albarraque – Linhó, 2710-297 Sintra, Portugal (applicant), represented by Ricardo Rodrigues, Rua da Moeda 1, 1º, sala 9, 1200-275 Lisboa, Portugal (professional representative).

On 29/08/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 791 716 is upheld for all the contested goods.

2.        European Union trade mark application No 15 598 923 is rejected in its entirety.

3.        The applicant bears the costs, fixed at EUR 620.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 598 923 ‘ELANVIT’. The opposition is based on Portuguese trade mark registration No 140 083 ‘RELAVIT’. 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

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

Class 5: Pharmaceutical preparations, chemico-pharmaceutical preparations, chemico-pharmaceutical products and medicines for humans and animals.

The contested goods are the following:

Class 5: Dietary and nutritional supplements; nutritional supplements; medicated food supplements; food supplements; dietary supplements for humans; medicine; pharmaceutical drugs; medicines for human purposes; pharmaceuticals.

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 medicines for human purposes; pharmaceuticals are identically contained in both lists of goods (including synonyms).

The contested medicated food supplements are included in the broad category of the opponent’s medicines for humans. Therefore, they are identical.

The contested medicine includes as a broader category, the opponent’s medicines for humans and animals. Therefore, they are identical.

The contested pharmaceutical drugs are included in the broad category of, or overlap with, the opponent’s pharmaceutical preparations. Therefore, they are identical.

The contested dietary and nutritional supplements; nutritional supplements; food supplements; dietary supplements for humans are similar to the opponent’s medicines for humans as they have the same purpose, they can coincide in end users and distribution channels.

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 found to be identical or similar are directed at the public at large and at business customers with specific professional knowledge or expertise.

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

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.

For food supplements, the degree of attention will run from average to high depending on the price and the specialised nature of the purchased goods.

3. The signs

RELAVIT	ELANVIT
Earlier trade mark	Contested sign

The relevant territory is Portugal.

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 signs are word marks consisting of the verbal element ‘RELAVIT’ in the case of the earlier mark and of the verbal element ‘ELANVIT’ in the case of the contested sign. For word marks, it is the word as such that is protected and not its written form.

Although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, they will break it down into elements which, for them, suggest a specific meaning or which resemble words known to them (judgment of 13/02/2007, T-256/04 ‘Respicur’, EU:T:2007:46, § 57).

In the present case, conceptually, the signs have no meaning as a whole and are distinctive, however ‘ELAN’ that may be dissected out from the contested sign means ‘enthusiasm, inspiration, impetus’ in Portuguese and has a limited degree of distinctiveness as it alludes to the benefits, the good state of mind the product can bring. ‘VIT’ at the end of the two signs will also be dissected out and will be associated to vitamin and is less distinctive taking into consideration that the goods are nutritional supplements and pharmaceuticals.

To that extent, the signs are conceptually similar to a low degree.

Visually and aurally, the signs coincide in the string of letters/sounds ‘*ELA*VIT’ but differ in the letter/sound ‘R’ placed in the first position in the earlier mark and in the letter/sound ‘N’ placed in the fourth position in the contested sign. Despite the fact that the element ‘VIT’ that the signs have in common have a weak degree of distinctiveness, the signs have the same structure since they both consist of seven letters and they both use the same vowels creating thus the same rhythm and intonation.

Therefore, the signs are visually and aurally similar to an average degree.

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. 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 less distinctive element in the mark as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

According to settled case-law, the likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (29/09/1998, C-39/97, Canon, EU:C:1998:442, §16).

According to the same line of case-law, 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).

In the present case, the goods are identical and similar and the signs are conceptually similar to a low degree and visually and aurally similar to an average degree on account of the fact that they coincide in six out of seven letters, namely, ‘*ELA*VIT’. The signs only differ in the letter ‘R’ in the earlier mark and in the letter ‘N’ in the contested sign as already detailed in part c) of the decision. These differences are considered not sufficient to overcome the overwhelming similarities between the signs even taking into consideration that the common element that will be dissected out from the signs, ‘VIT’ has less distinctiveness.

Moreover, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind. 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), especially taking into account the degree of similarity between the marks in question and the fact that some of the services are identical and some are similar.

 

Account is also taken of the fact that 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).

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s Portuguese trade mark registration No 140 083 ‘RELAVIT’. It follows that the contested trade mark must be rejected for all the contested goods.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

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

According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Steve HAUSER

Sandra IBAÑEZ

Begoña URIARTE VALIENTE

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.