OPPOSITION No B 2 435 892

Sopharma AD,16, Iliensko shausse str., Sofia, Bulgaria (opponent), represented by Rumiana Hristova Peycheva, Sopharma AD, 16, Iliensko shausse, 1220 Sofia,  Bulgaria (employee representative)

a g a i n s t

Laboratorios Bagó S.A., Bernardo de Irigoyen 248., Ciudad de Buenos Aires,  Argentina (applicant), represented by Isern Patentes y Marcas S.L., Avenida Diagonal, 463 bis 2° piso, 08036 Barcelona, Spain (professional representative).

On 27/06/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 435 892 is partially upheld, namely for the following contested goods:

Class 5:        Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical use, food for babies; dietary supplements for humans; plasters, materials for dressings; disinfectants.

2.        European Union trade mark application No 13 114 343 is rejected for all the above goods. It may proceed for the remaining goods.

3.        Each party bears its own costs.

REASONS:

The opponent filed an opposition against some of the goods of European Union trade mark application No 13 114 343, namely against all the goods in Class 5. The opposition is based on Bulgarian trade mark registrations No 21 958 and No 48 474. The opponent invoked Article 8(1)(b) EUTMR.

On 11/06/2015 the Opposition Division rendered a decision which resulted in the rejection of the opposition pursuant to Rule 20(1) CTMIR (now EUTMIR), since the opponent did not submit any evidence concerning the substantiation of the earlier trade marks within the relevant time limit.

The decision was appealed and the Board of Appeal decided in case R 1630/2015-1 on 07/07/2016 to annul the contested decision and remitted the case to the Opposition Division for further prosecution. The Board considered that ‘the opponent’s submissions to substantiate the opposition were in time’.  

PRELIMINARY REMARK

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 Bulgarian trade mark registration No 21 958.

PROOF OF USE

In accordance with Article 42(2) and (3) EUTMR (in the version in force at the time of filing of the opposition), if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of publication of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of, inter alia, Bulgarian trade mark registration No 21 958 ‘DIMEX’ on which the opposition is based.

The request was submitted in due time and is admissible as the earlier trade mark was registered more than five years prior to the relevant date mentioned above.

The contested application was published on 27/08/2014. The opponent was therefore required to prove that the trade mark on which the opposition is based was put to genuine use in Bulgaria from 27/08/2009 to 26/08/2014 inclusive.

Furthermore, the evidence must show use of the trade mark for the goods on which the opposition is based, namely the following:

Class 5:        Medicines.

According to Rule 22(3) EUTMIR, the evidence of use must consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods and services in respect of which it is registered and on which the opposition is based.

On 24/03/2015, according to Rule 22(2) EUTMIR, the Office gave the opponent until 24/05/2015 to submit evidence of use of the earlier trade mark. On 26/05/2015, the Office received the opponent’s evidence of use. For the reasons explained in Boards of Appeal’s case R 1630/2015-1, this evidence was filed within the time limit.

The evidence to be taken into account is the following:

• Annex 1: Marketing authorisations for the medicinal product ‘DIMEX’ for Bulgaria, last renewed on 09/05/2012. Annex 1 also includes copies showing packaging and use of ‘DIMEX’ in Latin and Cyrillic letters:

• Annex 2: Information about the medicine bearing the trade mark ‘DIMEX’ from the opponent’s website www.sopharma.bg.
• Annex 3: Samples of invoices addressed to Sopharma Trading AD, which is the daughter and distributing company of the opponent (Sopharma AD). The invoices show partly use within the relevant period (15 of these invoices are dated within the period 01/10/2012 – 24/02/2014).
• Annex 4: A presentation of sales to the biggest pharmaceutical retailers in Bulgaria (provided by the opponent).

             

• Annex 5: Samples of invoices to pharmacies located in 37 different cities and towns in Bulgaria. These invoices are partly from within the relevant period (57 out of 68 invoices are dated within the relevant period). The cities and towns to which the invoices are addressed are, inter alia, Popovo, Dulovo, Sofia, Chiren, Burgas, Svishtov, Varna, Plovdiv, Omurtag, Vratsa, Peshtera.
• Annex 6: Extracts from www.imshealth.com and information about IMS, which audits the Bulgarian pharmaceutical retailing market. Although not corroborated by other evidence, the following sales information is (according to the opponent) based on a report from IMS:

• Annex 7: Extracts of advertising approvals for products bearing the trade mark DIMEX, issued by the Bulgarian Drug Agency for 2011 and 2013. Moreover, this annex also contains samples from advertisement materials:

                            

The documents submitted are in Bulgarian and are accompanied by full or partial translations into the language of the proceedings, which is English.

It should be noted that use must be public, that is to say it must be external and apparent to actual or potential customers of the goods or services. Use in the private sphere or purely internal use within a company or a group of companies does not amount to genuine use (09/12/2008, C-442/07, Radetzky, EU:C:2008:696, § 22; 11/03/2003, C-40/01, Minimax, EU:C:2003:145, § 37).

Relevant evidence can also validly come from a distribution company forming part of a group. Distribution is a method of business organisation that is common in the course of trade and implies use of the mark that cannot be regarded as purely internal use by a group of companies, since the mark is also used outwardly and publicly (17/02/2011, T-324/09, Friboi, EU:T:2011:47, § 32).

In the present case, the documents submitted, in particular the invoices, refer partly to sales from the company Sopharma AD (the opponent) to its distributing company Sopharma Trading AD and partly to sales from the latter company to various customers across Bulgaria. In particular, the sales from the distributing company to customers across Bulgaria demonstrate that the mark is used outwardly and publicly.

Place of use

The evidence must show that the earlier Bulgarian trade mark has been genuinely used in Bulgaria.

In the present case, the documents submitted show that the place of use is Bulgaria. The invoices, marketing authorisations and marketing material are in Bulgarian (and in most cases translated into English), while the extracts from the opponent’s website and from IMS Health are in English. Nevertheless, the extracts from www.imshealth.com express that IMS Health audits the pharmaceutical market in Bulgaria, which also strongly indicates that the sales figures (based on the IMS report) relates to the relevant territory. Moreover, the invoices referring to sales to pharmacies are addressed to Bulgarian addresses and the retailers listed in Annex 4 are Bulgarian. Consequently, the evidence submitted suffices to establish that the sign was present in the market in the relevant territory.

Time of use

Most of the invoices are dated within the relevant period (from 27/08/2009 to 26/08/2014), and the extracts showing marketing authorisations from the Bulgarian Drug Agency relate to the relevant period. Moreover, the sales figures (based on IMS Health’s audit of the Bulgarian pharmaceutical market) relate to the relevant period, while one of the attached advertisements (page 375) is explicitly dated within the relevant period.    

Extent of use

As regards the extent of use, all the relevant facts and circumstances must be taken into account, including the nature of the relevant goods or services and the characteristics of the market concerned, the territorial extent of use, its commercial volume, duration and frequency.

The assessment of genuine use entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use.

The documents filed, in particular the invoices, provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope and the duration and frequency of use.

The evidence submitted by the opponent to prove genuine use of the earlier Bulgarian trade mark in relation to medicines in Class 5 relates to sales to different clients situated in different cities and towns across Bulgaria. Bearing this in mind, the Opposition Division observes that the evidence submitted sufficiently demonstrates that there has been a public and outward use of the mark (at least in the case of Annex 5). The materials submitted, in particular the invoices concerning sales to end clients, relate to the full duration of the relevant period and prove the frequency of use of the mark throughout the relevant period.

Furthermore, the opponent has provided sales numbers (based on IMS Health’s report) which show that the opponent has sold between 200 000 – 300 000 products yearly between 2010 – 2014 in Bulgaria. Although these numbers are presented by the opponent and do not originate directly from IMS Health, the Opposition Division finds them credible seen in relation with the invoices in Annexes 3 and 5. In addition, the advertisements (although not dated in most cases) and the fact that the opponent has had a marketing authorisation in Bulgaria during the relevant time period, gives the Opposition Division sufficient information regarding the commercial activities of the opponent in the relevant period. In any case, the documents prove that use of the mark has been more than mere token use.

Therefore, the Opposition Division considers that the opponent has provided sufficient indications concerning the extent of use of the earlier mark.

Nature of use

In the context of Rule 22(3) EUTMIR, the expression ‘nature of use’ includes evidence of the use of the sign as a trade mark in the course of trade, of the use of the mark as registered, or of a variation thereof according to Article 15(1), second subparagraph, point (a) EUTMR, and of its use for the goods and services for which it is registered.

According to Article 15(1), second subparagraph, point (a) EUTMR, the following shall also constitute use within the meaning of paragraph 1: use of the European Union trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered, regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor. When examining the use of an earlier registration for the purposes of Article 42(2) and (3) EUTMR, Article 15 may be applied by analogy to assess whether or not the use of the sign constitutes genuine use of the earlier mark as far as its nature is concerned.

The purpose of Article 15(1)(a) EUTMR, which avoids imposing strict conformity between the form in which the trade mark is used and the form in which it was registered, is to allow its proprietor, when exploiting it commercially, to vary it in such a way that, without altering its distinctive character, enables it to be better adapted to the marketing and promotion requirements of the goods or services concerned (23/02/2006, T-194/03, Bainbridge, EU:T:2006:65, § 50).

It is appropriate to consider whether the mark as used contains differences in relation to its registered form that would affect its distinctive character or, in spite of some differences, the mark as used and its registered form are essentially the same.

The opponent’s earlier mark consists of the word ‘DIMEX’ in Latin letters. The marketing material show use of both ‘DIMEX’ and the Cyrillic version, ‘ДИМЕКС’, , and of use only in Cyrillic,   , while the invoices show use in Cyrillic (although translated into English and Latin letters).

The opponent has also (as mentioned above) provided examples of product packaging showing use of both ‘DIMEX’ and ‘ДИМЕКС’:

   

The Bulgarian consumers are used to encounter trade marks in both Latin and Cyrillic letters. In this case, the opponent has provided examples showing use of ‘DIMEX’ in Latin, in Cyrillic and the two combined simultaneously. The Opposition Division finds that such a use does not change the material particulars of the mark. Even when the mark is used only in Cyrillic letters, it strongly implies proof of use of the earlier trade mark ‘DIMEX’. Such use does not change the distinctiveness of the mark or its aural or conceptual characteristics.

Moreover, the earlier mark is used in standard upper case in both Cyrillic and Latin on the products and in advertisements, in some cases followed by the indication for a registered trade mark, ®. Therefore, the use of the earlier mark in the way shown in the documents does not alter its distinctive character.

In view of the above, the Opposition Division considers that the evidence does show use of the sign as registered within the meaning of Article 15(1)(a) EUTMR.

Overall assessment

The Court of Justice has held that there is ‘genuine use’ of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (11/03/2003, C-40/01, Minimax, EU:C:2003:145, and 12/03/2003, T-174/01, Silk Cocoon, EU:T:2003:68).

Taking into account the evidence in its entirety, although the evidence submitted by the opponent is not particularly exhaustive, it does reach the minimum level necessary to establish genuine use of the earlier trade mark during the relevant period in the relevant territory.

However, the evidence filed by the opponent does not show genuine use of the trade mark for all the goods covered by the earlier trade mark, that is, for the broad category medicines in its entirety.

According to Article 42(2) EUTMR, if the earlier trade mark has been used in relation to part only of the goods or services for which it is registered it will, for the purposes of the examination of the opposition, be deemed to be registered in respect only of that part of the goods or services.

In the present case the evidence shows genuine use of the trade mark for the following goods:

Class 5:        Medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans.

Therefore, the Opposition Division will only consider the abovementioned goods in its further examination of the opposition.

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:   Medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans.

The contested goods are the following:

Class 5:   Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for humans and animals; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides.

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 pharmaceutical preparations include, as a broader category, the opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

In general, medicines refer to any kind of medicine, that is, a substance or combination of substances for treating or preventing disease in people or animals. In this case, the opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans are only intended for human use. Although the contested veterinary preparations are for veterinary use and purposes, they may have the same nature as the opponent’s goods (e.g. medicines for treating coughs in dogs and cats), they have the same distribution channels and are normally manufactured by the same kind of undertakings. Therefore, the contested veterinary preparations are similar to the opponent’s goods.

The contested sanitary preparations for medical purposes are considered similar to the opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans. Although the opponent’s goods have a specified medical purpose, the contested goods have a general medical purpose. For example, the contested goods can be used for treating fever, while the opponent’s goods are intended to prevent/treat coughs caused by fever. Moreover, these goods are sold through the same distribution channels, target same relevant publics and are produced by the same companies.

The contested dietetic food and substances adapted for medical use; dietary supplements for humans are substances prepared for special dietary requirements with the purpose of treating or preventing a disease for human beings or maintaining health. The opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans also have a medical purpose, but are used for preventing and treating coughs. Therefore, these goods may have overlapping purposes; they are distributed through the same channels, aim the same consumers and are deemed similar to a low degree.

The contested food for babies may coincide in purpose with the opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans; feeding and improving the baby’s health versus improving the baby’s health by preventing and treating coughs. Furthermore, these goods are distributed through the same channels and are deemed similar to a low degree.  

The contested plasters, materials for dressings are used to prevent diseases (e.g. to protect and treat wounds), while the opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans are used to treat coughs caused by inflammations. Therefore, these goods have similar purposes, they target same relevant publics, are distributed through the same channels and are deemed similar to a low degree.

The contested disinfectants are used to prevent diseases (e.g. to treat and sterilise wounds), while the opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans are used to treat coughs caused by inflammations. Therefore, these goods have similar purposes, they target same relevant publics, are distributed through the same channels and are produced by the same companies and are deemed similar to a low degree.

Nevertheless, the contested dietetic food and substances adapted for veterinary use; dietary supplements for animals are deemed dissimilar to the opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans. Although the conflicting goods have a medical purpose, this is not necessarily sufficient for finding a similarity between them. These goods differ, namely, in natures and methods of use; they are not in competition and are not complementary.  

The contested material for stopping teeth, dental wax are products used in dentistry; preparations for destroying vermin are, inter alia, used to prevent the risks to human or animal health that can be posed by the species that these goods are intended to eliminate; fungicides can, for example, be used to fight fungal infections in animals and humans. Although the contested goods have a general medical purpose, their purposes differ from that of the opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans. Furthermore, these goods have different natures, methods of use and are not complementary or in competition. Therefore, they are dissimilar.

The contested herbicides are chemical substances used to kill or control unwanted plants and have a different nature, purpose and method of use than the opponent’s medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans in Class 5. The contested goods are not complementary or in competition with the opponent’s and are dissimilar.

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 to various degrees are directed at the public at large and at a more specialised public with specific knowledge and expertise, such as medical professionals and pharmacists.

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.

The Court has confirmed that the degree of attention is also higher than average for all goods in Class 5, including food for babies and nutritional supplements (10/02/2015, T-368/15, EU:T:2015:81, § 46).

3. The signs

DIMEX	DIMINEX
Earlier trade mark	Contested sign

The relevant territory is Bulgaria.

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 ‘DIMEX’. For the relevant public ‘DIMEX’ has no meaning and is, therefore, distinctive. The contested sign is also a word mark consisting of the word ‘DIMINEX’. This word has no meaning and is distinctive.  

Conceptually, as stated above, neither of the signs have a meaning for the relevant public. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

Visually, the word elements ‘DIMEX’ and ‘DIMINEX’ coincide in the string of letters ‘DIM**EX’ and differ in the letters ‘IN’ in the contested sign. However, these two differing letters are placed in the middle of the contested sign, where they are more likely to go unnoticed, which makes the signs’ three initial and two final letters identical. Therefore, the signs are at least visually similar to an average degree.

Aurally, the earlier mark will be pronounced in two syllables and the contested sign in three (‘/di/mex/’ and ‘/di/min/ex/’). Although the contested sign contains one more syllable than the earlier mark and two more additional letters, their initial syllables are identical and they both end with same vowel and consonant structure (‘EX’). Moreover, the letter ‘M’ is pronounced third in both signs. Therefore, the Opposition Division finds the signs to be at least 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.

5. Global assessment, other arguments and conclusion

According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 29). 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 (see Canon, § 16).

In addition, the global assessment of the risk of confusion entails certain interdependence between the factors taken into account and, in particular, between the similarity of the trademarks and the similarity of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (23/10/2002, T-6/01, Matratzen, EU:T:2002:261, § 25).

In the present case, the goods are partly identical, partly similar to various degrees and partly dissimilar. The earlier mark is distinctive and the signs are at least visually and aurally similar to an average degree whereas they do not convey any concept for the relevant public of Bulgaria. Bearing this in mind, the Opposition Division finds that the signs’ similarities are such that there is also a likelihood of confusion for the goods found to be 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). 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, and taking into account the principle of interdependence, as mentioned above, the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s Bulgarian trade mark registration No 21 958.  

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to various degrees 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 Bulgarian trade mark registration No 48 474 for the word mark ‘DIMEX ДИМЕКС’ for the following goods:

Class 5: Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use.

As follows from all the above, the opposition has been rejected only in respect of those goods in Class 5 that were found to be dissimilar to the opponent’s goods.

The applicant requested that the opponent submit proof of use of all earlier marks on which the opposition is based. This request is admissible also in relation to earlier Bulgarian trade mark No 48 474 given that the earlier trade mark was registered more than five years prior to the publication of the contested application.

The evidence of use for this trade mark is the same as that listed above in relation to earlier Bulgarian trade mark No 21 958. Consequently, even if these documents could provide sufficient indications with respect to place, time, extent and nature of use of the earlier Bulgarian trade mark No 48 474, they refer to use for no broader a scope of goods, namely medicines in the form of syrups for preventing cough caused by various inflammatory diseases in humans in Class 5.

Indeed, even though the earlier Bulgarian trade mark No 48 474 is registered for a broader scope of goods in Class 5, the documents submitted do not refer to some of these goods at all (i.e. veterinary and sanitary preparations, dietetic substances adapted for medical use), while they refer only to specified pharmaceutical preparations, namely in the form of syrups for preventing cough caused by various inflammatory diseases in humans in Class 5. These goods can be considered to form an objective subcategory of pharmaceutical preparations, for which the earlier mark is registered.

As was concluded above, medicines [pharmaceutical preparations] in the form of syrups for preventing cough caused by various inflammatory diseases in humans in Class 5 are dissimilar to the contested dietetic food and substances adapted for veterinary use; dietary supplements for animals; material for stopping teeth, dental wax; preparations for destroying vermin; fungicides, herbicides in Class 5. Therefore, the outcome cannot be different with respect to the goods for which the opposition has already been rejected. No likelihood of confusion exists with regard to those dissimilar 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. According to Article 85(2) 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 only for part 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

Benoît VLEMINCQ

Christian RUUD

Boyana NAYDENOVA

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.