OPPOSITION No B 2 753 989

Modern Pharm Naturprodukte GmbH, Altstadt 105, 84028 Landshut, Germany (opponent), represented by Gerstenberg Rechtsanwälte, Uhlandstrasse 2, 80336 Munich, Germany (professional representative)

a g a i n s t

Flowene Oü, Pilvetee tn 6, 12618 Tallinn, Estonia (applicant), represented by Patendibüroo Käosaar Oü, Tähe 94, 50107 Tartu, Estonia (professional representative).

On 06/06/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 753 989 is upheld for all the contested goods.

2.        European Union trade mark application No 15 152 507 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 15 152 507. The opposition is based on German trade mark registration No 302 013 028 958. 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 as well as preparations for medical use; biological preparations for medical use; dietetic preparations for medical purposes; nutritional supplements; herbal teas for medicinal purposes; vitamins and vitamin preparations for medical and non-medical purposes.

Class 30:         Sugar; honey; treacles; yeast.

Class 32:         Non-alcoholic beverages; beverages and juices made of fruits, vegetables and other plants, syrups and other preparations for making beverages.

The contested goods are the following:

Class 5:         Syrups for pharmaceutical purposes, dietary and dietetic food supplements.

Class 30:         Honey; herbal honey; syrups and treacles.

Class 32:         Non-alcoholic beverages; non-alcoholic honey-based beverages, syrups for beverages, syrups for lemonade.

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 5

The contested syrups for pharmaceutical purposes are included in the broad category of the opponent’s pharmaceutical preparations as well as preparations for medical use in Class 5. Therefore, they are identical.

The contested dietary and dietetic food supplements include, as a broader category the opponent’s dietetic preparations for medical purposes in Class 5. 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 30

The contested honey; treacles are identically contained in both lists of goods.

The contested herbal honey is included in the broad category of the opponent’s honey in Class 30. Therefore, they are identical.

The contested syrups are considered similar to the opponent’s sugar in Class 30, as these goods can coincide in end user and distribution channels. Furthermore they are in competition.

Contested goods in Class 32

The contested non-alcoholic beverages; syrups for beverages are identically contained in both lists of goods.

The contested non-alcoholic honey-based beverages are included in the broad category of the opponent’s non-alcoholic beverages in Class 32. Therefore, they are identical.

The contested syrups for lemonade are included in the broad category of the opponent’s syrups for making beverages in Class 32. 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 or similar are directed at the public at large and at professionals in the medical field. For example, insofar as the goods in Classes 30 and 32 are concerned, the degree of attention will be average, whereas insofar as the pharmaceutical goods in Class 5 are concerned, the level of attention will be higher, regardless of whether the pharmaceuticals are sold without prescription, as the latter goods affect consumers’ state of health.

3. The signs

CURCUMED
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).

The earlier mark is a word mark composed of the term ‘CURCUMED’.

The contested sign is a figurative mark composed of the word ‘CURCUME’ written in a fairly standard black (‘CURCU’) and brown (‘ME’) typeface in upper case.

Neither of the marks, as a whole, has any meaning in the relevant territory and therefore they are distinctive.

Visually and aurally, the signs coincide in the letters/sound ‘CURCUME’ which constitutes the whole contested sign. The signs differ in the appearance and pronunciation of the additional last letter /D/ of the earlier mark. Regarding the typeface and colours in which the verbal element of the contested sign is depicted, this stylisation and colours are fairly standard and will not divert the consumer’s attention away from the element they seem to embellish.

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.

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.

5. 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 (recital 8 of the EUTMR). 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, Sabèl, EU:C:1997:528, § 22).

Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular, similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (see, Lloyd Schuhfabrik, § 20; Sabèl, § 24; 29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).

The goods have been found partly identical and partly similar. The earlier mark has a normal degree of distinctiveness. The signs are visually and aurally similar to a high degree, whereas the conceptual aspect does not influence the assessment of the similarity of the signs. The relevant public is the public at large and a more professional one, whose level of attention varies from average to high.

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 (Lloyd Schuhfabrik, § 26). Having said that, it is stressed that 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).

Consequently, there is a likelihood of confusion with respect to identical and similar goods, even for the public with a high level of attention.

Considering all of the above, the Opposition Division finds that 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 German trade mark registration No 302 013 028 958. It follows that the contested trade mark must be rejected in its entirety.

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

Chantal VAN RIEL

Klaudia MISZTAL

Saida CRABBE

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.