OPPOSITION No B 2 806 605

Groupe Lea Nature, Société Anonyme, 23 Avenue Paul Langevin, 17180 Perigny, France (opponent), represented by Inlex IP Expertise, Plaza San Cristobal, 14, 03002 Alicante, Spain (professional representative)

a g a i n s t

Orinoco 247 Media UG (haftungsbeschränkt), Linienstr. 75, 10119 Berlin, Germany.

On 25/09/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 806 605 is upheld for all the contested goods.

2.        European Union trade mark application No 15 745 251 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 15 745 251 ‘fleuressence’ (word mark). The opposition is based on European Union trade mark registration No 467 753 ‘Floressance’ (word mark), and French trade mark registration No 4 238 469 ‘FLORESSANCE’ (word mark). 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 French trade mark registration No 4 238 469.

1. The goods

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

Class 3:        Cosmetics; cosmetic creams; cosmetic products for skin care; moisturizing treatments; face cream.

Class 5:        Balms for medical purposes; mud for baths; oils for medical purposes; lotions for pharmaceutical use.

The contested goods are the following:

Class 3:        Skin care preparations.

Class 5:        Skin care preparations for medical use.

Contested goods in Class 3

The contested skin care preparations include, as a broader category, the opponent’s cosmetic products for skin care in Class 3. 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 goods in Class 5

The contested skin care preparations for medical use overlap with the opponent’s balms for medical purposes in Class 5, insofar as both categories include balms for skin care with a medical purpose. Therefore, they are identical.

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 are directed at the public at large and at health-care professionals with specific knowledge in medical skin care.

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.

Considering the above, the relevant public’s degree of attention varies from average to relatively high depending on whether the preparations in question are medicated or plain, non-medicated.

3. The signs

FLORESSANCE	fleuressence
Earlier trade mark	Contested sign

The relevant territory is France.

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).

As regards the contested sign, whilst it cannot be denied that it comprises the words ‘fleur’, meaning ‘flower’ in French, and ‘essence’, referring to inter alia plant extracts and essential oils, the juxtaposition of these words is so unusual and grammatically incorrect that the neologism eclipses the perception of ‘essence’ as a meaningful word, or ‘essence de fleur’ that would be the apt term for ‘essence of a flower’. In view of the reversed order of the words, the fact that they are conjoined and the absence of the preposition, it can be reasonably assumed that a part of the public will perceive the contested sign as an indivisible unit which merely alludes to ‘flowers’ but is fanciful as a whole.

The word comprising the earlier mark is arbitrary and therefore distinctive, notwithstanding the vague allusion to ‘flowers’ that may be triggered, for a part of the public, by the initial letter string ‘flor’ and the possible analogy with some French words, such as ‘floraison’ meaning ‘flowering’, ‘floral’ with the same meaning as in English, or ‘floriculture’ referring to flower-growing.

Although the initial letter strings of both signs, ‘flor’ and ‘fleur’, may be perceived as an allusion to the flower-based composition of the skin care products at issue, their combination with the rest of the letters is such that the resulting invented words will be perceived as a whole, that is will not be split, by the public. Indeed, the average consumer normally perceives a sign as a whole and does not proceed to analyse its various details. Since the public will not artificially dissect either of the signs when encountering them, it is considered that the signs have no element that can be clearly identified as being more distinctive than others.

Conceptually, although both signs are coined terms, for a part of the public they bring to mind related concepts. Bearing in mind the above considerations, in particular the allusive character of the concept of ‘flowers’, the signs are similar to a low degree.

Visually, the signs coincide in the letters ‘FL*RESS*NCE’. Although they differ in the letters ‘O’ and ‘A’ of the earlier mark, and ‘EU’ and ‘E’ of the contested sign, it is important to note that the differentiating, isolated letters have a much lesser visual impact than the shared nine-letter sequence which is overwhelming. The differences might even pass unnoticed. Therefore, the signs are similar to a high degree.

Aurally, the pronunciations of the signs coincide in the sound of the letters ‘FL*RESSA(E)NCE’, because the phonemes corresponding to the letters ‘A’ and ‘E’ present in the endings of the signs will be the same. The only difference results from the fact that the earlier mark contains the sound of the letter ‘O’ whereas the contested sign features the sound of the letters ‘EU’, but since they are both vowels with a similar sound this difference is not a major one. At any rate the pronunciations are of the same lengths. Therefore, the signs are similar to a very high 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 clear or evident meaning for any of the goods in question from the perspective of the public in the relevant territory. Considering what has been stated in section c) of this decision, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The contested goods are identical to some of the opponent’s goods. The signs show striking similarities both from visual and aural perspectives, and on the conceptual level they are similar to a low degree.

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).

Admittedly, there are differences between the signs. However, their impact is not such as to enable a part of the public, whether the public at large or health-care professionals, to safely distinguish between them in the context of identical goods, including where their degree of attention is enhanced when making the purchase. 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).

Considering all the above, the Opposition Division concludes that the differences are clearly insufficient to counteract the overwhelming similarities and that there is a likelihood of confusion on the part of the public. It has to be noted that the low degree of conceptual similarity established between the signs is not an important factor for the finding of likelihood of confusion, which mainly ensues from the very significant visual and aural similarities between the signs (owing to the coinciding letters/sounds not being limited to the letter strings ‘flor’ and ‘fleur’, but spread throughout the entirety of the signs) and reinforced by the identity of the goods in question.

Therefore, the opposition is well founded on the basis of the opponent’s French trade mark registration No 4 238 469. It follows that the contested trade mark must be rejected for all the contested goods.

As earlier French trade mark registration No 4 238 469 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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

Catherine MEDINA

Solveiga BIEZA

Michele M. BENEDETTI – ALOISI

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.