OPPOSITION DIVISION

OPPOSITION No B 2 769 266

Frank Nedder, Am Pellerbruch 30, 21271 Hanstedt, Germany (opponent),

represented by Uexküll & Stolberg Partnerschaft von Patent- und

Rechtsanwälten mbB, Beselerstr. 4, 22607 Hamburg, Germany (professional

representative)

a g a i n s t

LifeVantage Corporation, 9785 South Monroe Street, Suite 300, Sandy Utah 84070

2. European Union trade mark application No 15 545 213 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 15 545 213 for the word mark ‘AXIO SMART ENERGY’. The

opposition is based on, inter alia, international trade mark registration No 1 179 399

designating the European Union for the figurative mark . The opponent

invoked Article 8(1)(b) EUTMR.

Preliminary remark

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95

have been repealed and replaced by Regulation (EU) 2017/1001 (codification),

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

Decision on Opposition No B 2 769 266 page: 2 of 7

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

pharmaceutical and veterinary purposes, biological preparations for

medical and veterinary purposes; pharmaceutical preparations; serums;

antigens.

The contested goods are, after the applicant’s limitation of 14/10/2016, the following:

Class 5: Dietary and nutritional supplements except for animals; nutraceuticals for

use as dietary and nutritional supplements except for animals; functional

foods for use as dietary or nutritional supplements except for animals,

powdered nutritional supplement drink mix except for animals; nutritional

supplement additives sold separately to be used with beverages except for

animals.

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 5

The contested dietary and nutritional supplements except for animals; nutraceuticals

for use as dietary and nutritional supplements except for animals; functional foods for

use as dietary or nutritional supplements except for animals, powdered nutritional

supplement drink mix except for animals; nutritional supplement additives sold

separately to be used with beverages except for animals are all substances prepared

for special dietary requirements with the purpose of treating or preventing disease.

Decision on Opposition No B 2 769 266 page: 3 of 7

Contested goods in Class 32

The contested sports drinks and energy drinks enhanced with nutritional additives

are also substances prepared for special dietary requirements, with the purpose of

improving health conditions. Bearing this in mind, their purpose is similar to that of

pharmaceutical preparations in Class 5 insofar as they are used to improve a

sodium and sugar which is comparable to isotonic beverages, to the less

concentrated hypotonic beverages or the more concentrated hypertonic beverages

pharmaceutical preparations, these beverages are consumed in order to increase

vitamins, may be consumed after a gruelling sports performance, such as a

goods is very similar. On account of the fact that pharmaceutical preparations may be

taken upon advice of a medical professional or even prescribed by a physician, but

can also be ingested by the user directly, i.e. without the recommendation of a doctor.

Consequently, contrary to the applicant’s assertion, the Opposition Division considers

that these goods are considered similar to a low degree.

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 similar (to various degrees) are directed

At least the goods in Class 5 are likely to receive a heightened degree of attention

case law that, as far as pharmaceutical preparations are concerned, the relevant

public’s degree of attention is relatively high, whether or not the goods in question

are issued on prescription (15/12/2010, T-331/09, Tolposan, EU:T:2010:520, §§ 26

and 27).

or dispensing medicines. Non-professionals also show a higher than average degree

of attention, even if the pharmaceuticals are sold without prescription, as these goods

affect their health.

As regards the goods in Class 32, the relevant public is the public at large whose

level of attention is average.

Decision on Opposition No B 2 769 266 page: 4 of 7

c) The signs

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 unitary character of the European Union trade mark means that an earlier

European Union trade mark can be relied on in opposition proceedings against any

application for registration of a European Union trade mark that would adversely

affect the protection of the first mark, even if only in relation to the perception of

consumers in part of the European Union (18/09/2008, C-514/06 P, Armafoam,

EU:C:2008:511, § 57). This applies by analogy to international registrations

designating the European Union. Therefore, a likelihood of confusion for only part of

letter ‘X’ is written in white and placed inside of a black vertical rectangular frame,

whereas the remaining letters are written in black. The Opposition Division notes that

in principle, figurative elements of signs may have a lesser impact in their overall

impressions than their verbal elements, because the public tends to refer to trade

marks by their verbal elements rather than by describing their figurative components.

Nevertheless, it should be pointed out that even though a rectangular background is

often used as a purely decorative element in figurative marks, in the present case, its

impact cannot be ignored owing to its vertical shape, position and the white letter ‘X’

placed within it. Thus, it is considered that the earlier sign does not have any

elements that could be clearly considered more visually eye-catching than others.

as a mere indication of the characteristics of the goods, informing the consumer that

by using these goods they attribute to a more energetic lifestyle and stamina in an

intelligent way. Therefore, these elements are considered weak and ‘AXIO’ is the

most distinctive element of the contested sign.

Visually, the signs coincide in the letters ‘AX*O’ which constitute the whole verbal

part of the earlier mark and the first and most distinctive element of the contested

sign, whereas they differ in the third letter of the same elements, namely ‘X’ vs ‘I’.

Decision on Opposition No B 2 769 266 page: 5 of 7

Furthermore, the Opposition Division highlights that consumers generally tend to

focus on the first element of a sign when being confronted with a trade mark. This is

justified by the fact that 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. The additional words in the contested sign, ‘SMART ENERGY’, will be

perceived as meaningful and will as such receive less attention from the relevant

Aurally, the pronunciation of the signs coincides in the sound of the letters /A-X-*-O/

additional third letter ‘-I-’, both the first and the most distinctive element of the

additional letter ‘X’ in the earlier mark is the repetition of the preceded common letter

contested sign also includes the letter ‘I’, since it is placed in the middle and is

surrounded by the same letters as in the earlier mark, the sound of this letter is very

much absorbed by the letters surrounding it. Insofar as the remaining words of the

contested sign are concerned, namely ‘SMART ENERGY’, they are considered

secondary for the reasons set forth above.

The marks are, aurally, similar to a high degree.

Conceptually, the relevant public will perceive the words ‘SMART ENERGY’ in the

contested sign with the meaning explained above, while the remaining elements in

the marks are meaningless. This leads to the conclusion that the marks are

conceptually not similar. However, the impact of this conceptual difference between

the marks has a very limited impact on the relevant public since these elements are

the marks.

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

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.

that the public might believe that the goods or services in question, under the

Decision on Opposition No B 2 769 266 page: 6 of 7

assumption that they bear the marks in question, come from the same undertaking

or, as the case may be, from economically-linked undertakings.

As has been concluded, the goods at stake are similar (to various degrees). The

earlier mark has a normal degree of distinctiveness. The relevant public is the public

at large, including professionals insofar as the goods in Class 5 are concerned. The

impact on the relevant public since these elements are weak which will make that the

consumers will focus more on the remaining parts of the marks.

Account is taken of the fact that average consumers rarely have the chance to make

recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323,

imperfect recollection of trade marks (21/11/2013, T-443/12, ancotel, EU:T:2013:605,

§ 54).

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

English-speaking part of the public. As stated above in section c) of this decision, a

likelihood of confusion for only part of the relevant public of the European Union is

sufficient to reject the contested application.

In view of all the relevant factors in the present case and also the principle of

interdependence between them, i.e. the principle that a lesser degree of similarity

between the goods/services may be offset by a greater degree of similarity between

the marks, the relevant public could be mistaken as to the origin of those goods that

are similar even only to a low degree. The similarity of the signs outweighs the low

with regard to its particularities.

attention that mostly the marks in the mentioned cases are three letters marks vs two

letters mark and so the scenario, in any event, is not comparable.

Therefore, the opposition is well founded on the basis of the opponent’s international

trade mark registration No 1 179 399 designating the European Union. It follows that

the contested trade mark must be rejected for all the contested goods.

As the earlier right, namely international trade mark registration No 1 179 399

designating the European Union, leads to the success of the opposition and to the

rejection of the contested trade mark for all the goods against which the opposition

Decision on Opposition No B 2 769 266 page: 7 of 7

was directed, there is no need to examine the other earlier right invoked by the

opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).

COSTS

the course of these proceedings. According to Article 109(1) and (7) EUTMR and

Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR,

fee and the costs of representation, which are to be fixed on the basis of the