OPPOSITION No B 2 682 410

Farco-Pharma GmbH, Gereonsmühlengasse, 1-11 50670, Köln, Germany (opponent), represented by Loschelder, Konrad-Adenauer-Ufer 11 50668, Köln, Germany (professional representative)

a g a i n s t

Health Product Group, Świętokrzyska 30/63 00-116 Warsaw, Poland (applicant), represented by Kancelaria Patentowa Irena Janicka, Magellana 8/39 02-777, Warsaw, Poland (professional representative).

On 16/05/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 682 410 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the goods and services of European Union trade mark application No 14 719 587. The opposition is based on European Union trade mark registration No 11 534 948. 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 and services

The goods on which the opposition is based 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; Dental impression materials; Evacuants; Medical preparations for slimming purposes; Slimming pills; Adjuvants for medical purposes; Acaricides; Aconitine; Aldehydes for pharmaceutical purposes; Algicides; Alginates for pharmaceutical purposes; Alkaline iodides for pharmaceutical purposes; Alkaloids for medical purposes; Medicinal alcohol; Alcohol for pharmaceutical purposes; Aloe vera preparations for pharmaceutical purposes; Dental amalgams; Amino acids for medical purposes; Amino acids for veterinary purposes; Analgesics; Anaesthetics; Angostura bark for medical purposes; Antibiotics; Anti-rheumatism bracelets; Anti-rheumatism rings; Antiseptics; Antiseptic cotton; Appetite suppressants for medical purposes; Appetite suppressant pills; Bracelets for medical purposes; Medicines for human purposes; Medicines for veterinary purposes; Medicines for dental purposes; Medicines for alleviating constipation; Aseptic cotton; Asthmatic tea; Ethers for pharmaceutical purposes; Caustics for pharmaceutical purposes; Caustic pencils; Eye-washes; Eyepatches for medical purposes; Acetates for pharmaceutical purposes; Babies’ diaper-pants; Food for babies; Babies’ napkins [diapers]; Bath salts for medical purposes; Bath preparations, medicated; Therapeutic preparations for the bath; Bacterial poisons; Bacterial preparations for medical and veterinary use; Bacteriological preparations for medical and veterinary use; Dietary fiber; Balms for medical purposes; Balsamic preparations for medical purposes; Bandages for dressings; Barks for pharmaceutical purposes; Cotton for medical purposes; Sedatives; Biological tissue cultures for medical purposes; Biological tissue cultures for veterinary purposes; Biological preparations for medical purposes; Biological preparations for veterinary purposes; Biocides; Lead water; Blood for medical purposes; Hematogen; Leeches for medical purposes; Blood plasma; Depuratives; Candy, medicated; Tanning pills; Bromine for pharmaceutical purposes; Powder of cantharides; Chemical preparations to treat wheat smut; Chemical preparations for treating phylloxera; Vine disease treating chemicals; Chemico-pharmaceutical preparations; Chemical contraceptives; Chemical conductors for electrocardiograph electrodes; Chemical preparations to treat mildew; Chemical preparations for the diagnosis of pregnancy; Chemical preparations for medical purposes; Chemical preparations for pharmaceutical purposes; Chemical preparations for veterinary purposes; Chemical reagents for medical or veterinary purposes; Cinchona for medical purposes; Quinine for medical purposes; Chinoline for medical purposes; Surgical tissues; Surgical implants [living tissues]; Hydrated chloral for pharmaceutical purposes; Chloroform; Condurango bark for medical purposes; Curare; Sanitary towels; Decoctions for pharmaceutical purposes; Dental cements; Deodorants, other than for human beings or for animals; Deodorants for clothing and textiles; Disinfectants for chemical toilets; Disinfectants for hygiene purposes; Detergents for medical purposes; Diabetic bread adapted for medical use; Diagnostic preparations for medical purposes; Diastase for medical purposes; Dietetic beverages adapted for medical purposes; Dietetic substances adapted for medical use; Dietetic foods adapted for medical purposes; Digitalin; Dill oil for medical purposes; Drugs for medical purposes; Alloys of precious metals for dental purposes; Albuminous preparations for medical purposes; Elixirs [pharmaceutical preparations]; Gentian for pharmaceutical purposes; Enzymes for medical purposes; Enzymes for veterinary purposes; Enzyme preparations for medical purposes; Enzyme preparations for veterinary purposes; Aluminium acetate for pharmaceutical purposes; Esters for pharmaceutical purposes; Eucalyptol for pharmaceutical purposes; Eucalyptus for pharmaceutical purposes; Fennel for medical purposes; Ferments for pharmaceutical purposes; Greases for medical purposes; Greases for veterinary purposes; Febrifuges; Fish meal for pharmaceutical purposes; Fly catching paper; Fly glue; Fly destroying preparations; Formic aldehyde for pharmaceutical purposes; Chilblain preparations; Frostbite salve for pharmaceutical purposes; Fungicides; Gallic acid for pharmaceutical purposes; Gases for medical purposes; Gelatine for medical purposes; Royal jelly for pharmaceutical purposes; Poisons; Glycerine for medical purposes; Glycerophosphates; Dental amalgams of gold; Guaiacol for pharmaceutical purposes; Gum for medical purposes; Gamboge for medical purposes; Gurjun [gurjon, gurjan] balsam for medical purposes; Belts for sanitary napkins [towels]; Hemostatic pencils; Adhesives for dentures; Hemoglobin; Hemorrhoid preparations; Preparations for destroying dry rot fungus; Yeast for pharmaceutical purposes; Adhesive plasters; Remedies for foot perspiration; Remedies for perspiration; Charcoal for pharmaceutical purposes; Extracts of hops for pharmaceutical purposes; Hormones for medical purposes; Cement for animal hooves; Corn remedies; Corn rings for the feet; Repellents for dogs; Dog lotions; Dog washes; Hydrastine; Hydrastinine; Vaccines; Pants, absorbent, for incontinents; Insecticides; Insect repellents; Personal sexual lubricants; Irish moss for medical purposes; Isotopes for medical purposes; Jalap; Iodine for pharmaceutical purposes; Iodides for pharmaceutical purposes; Iodoform; Tincture of iodine; Jujube, medicated; Potassium salts for medical purposes; Preparations of lime for pharmaceutical purposes; Calomel; Cooling sprays for medical purposes; Camphor for medical purposes; Camphor oil for medical purposes; Candy for medical purposes; Capsules for medicines; Cachets for pharmaceutical purposes; Carbolineum [parasiticide]; Poultices; Cachou for pharmaceutical purposes; Chewing gum for medical purposes; Rubber for dental purposes; Germicides; Adhesive bands for medical purposes; Bone cement for surgical and orthopaedic purposes; Cocaine; Collodion for pharmaceutical purposes; Collyrium; Compresses; Headache pencils; Smoking herbs for medical purposes; Herbal teas for medicinal purposes; Creosote for pharmaceutical purposes; Croton bark; Cultures of microorganisms for medical and veterinary use; Liquorice for pharmaceutical purposes; Stick liquorice for pharmaceutical purposes; Larvae exterminating preparations; Laxatives; Cod liver oil; Linseed for pharmaceutical purposes; Linseed meal for pharmaceutical purposes; Lecithin for medical purposes; Liniments; Solutions for contact lenses; Solvents for removing adhesive plasters; Lotions for pharmaceutical purposes; Lotions for veterinary purposes; Air purifying preparations; Lupulin for pharmaceutical purposes; Magnesia for pharmaceutical purposes; Malt for pharmaceutical purposes; Malted milk beverages for medical purposes; Milk of almonds for pharmaceutical purposes; Mangrove bark for pharmaceutical purposes; Preparations for destroying mice; Medicinal drinks; Medicinal herbs; Medicinal infusions; Medicinal hair growth preparations; Medicinal tea; Sea water for medicinal bathing; Meal for pharmaceutical purposes; Melissa water for pharmaceutical purposes; Milking grease; Menthol; Articles for headache; Milk ferments for pharmaceutical purposes; Lactose for pharmaceutical purposes; Mineral food supplements; Mineral waters for medical purposes; Mineral water salts; Preparations for the treatment of burns; Soil-sterilising preparations; Anti-uric preparations; Preparations for callouses; Air deodorising preparations; Preparations to facilitate teething; Douching preparations for medical purposes; Preparations for reducing sexual activity; Preparations for destroying vermin; Molding wax for dentists; Moleskin for medical purposes; Sanitary pads; Sanitary pants; Mud for baths; Medicinal mud; Mothproofing preparations; Mothproof paper; Mouthwashes for medical purposes; Ergot for pharmaceutical purposes; Myrobalan bark for pharmaceutical purposes; Bacteriological culture mediums; Lacteal flour for babies; Albuminous foodstuffs for medical purposes; Nutritive substances for microorganisms; Nutritional supplements; Albumin dietary supplements; Alginate dietary supplements; Enzyme dietary supplements; Royal jelly dietary supplements; Glucose dietary supplements; Yeast dietary supplements; Casein dietary supplements; Linseed dietary supplements; Linseed oil dietary supplements; Lecithin dietary supplements; Pollen dietary supplements; Propolis dietary supplements; Protein dietary supplements; Wheat germ dietary supplements; Dietary supplements for animals; Narcotics; Bicarbonate of soda for pharmaceutical purposes; Sodium salts for medical purposes; By-products of the processing of cereals for dietetic or medical purposes; Nervines; Medicinal oils; Opiates; Opium; Opodeldoc; Opotherapy preparations; Antioxidant pills; Paper for mustard plasters; Antiparasitic collars for animals; Antiparasitic preparations; Parasiticides; Lozenges for pharmaceutical purposes; Pectin for pharmaceutical purposes; Pepsins for pharmaceutical purposes; Peptones for pharmaceutical purposes; Pearl powder for medical purposes; Pesticides; Mint for pharmaceutical purposes; Bunion pads; Pharmaceutical preparations; Pharmaceutical preparations for treating dandruff; Pharmaceutical preparations for skin care; Phenol for pharmaceutical purposes; Phosphates for pharmaceutical purposes; Anticryptogamic preparations; Pomades for medical purposes; Porcelain for dental prostheses; Bronchodilating preparations; Preparations of trace elements for human and animal use; Sterilising preparations; Propolis for pharmaceutical purposes; Protein supplements for animals; Pyrethrum powder; Quassia for medical purposes; Quebracho for medical purposes; Mercurial ointments; Radioactive substances for medical purposes; Radium for medical purposes; Rat poison; Fumigating sticks; Fumigation preparations for medical purposes; Reagent paper for medical or veterinary purposes; Contact lens cleaning preparations; Medicine cases, portable, filled; Rhubarb roots for pharmaceutical purposes; Smelling salts; Castor oil for medical purposes; Radiological contrast substances for medical purposes; Ointments for pharmaceutical purposes; Salts for medical purposes; Salts for mineral water baths; Sarsaparilla for medical purposes; Oxygen for medical purposes; Oxygen baths; Acids for pharmaceutical purposes; Lint for medical purposes; Soporifics; Dental abrasives; Slug exterminating preparations; Flowers of sulphur for pharmaceutical purposes; Sulphur sticks [disinfectants]; Mustard for pharmaceutical purposes; Mustard oil for medical purposes; Mustard plasters; Serums; Serotherapeutic medicines; Siccatives [drying agents] for medical purposes; Syrups for pharmaceutical purposes; Scapulars for surgical purposes; Panty liners [sanitary]; Sunburn ointments; Sunburn preparations for pharmaceutical purposes; Semen for artificial insemination; Stem cells for medical purposes; Stem cells for veterinary purposes; Starch for dietetic or pharmaceutical purposes; Steroids; Breast-nursing pads; Strychnine; Styptic preparations; Sulphonamides [medicines]; Suppositories; Tobacco extracts [insecticides]; Tobacco-free cigarettes for medical purposes; Sanitary tampons; Turpentine for pharmaceutical purposes; Oil of turpentine for pharmaceutical purposes; Thermal water; Thymol for pharmaceutical purposes; Animal washes; Tinctures for medical purposes; Tonics [medicines]; Glucose for medical purposes; Tissues impregnated with pharmaceutical lotions; Vermin destroying preparations; Herbicides; Vaginal washes; Petroleum jelly for medical purposes; Gauze for dressings; First-aid boxes, filled; Dressings, medical; Surgical dressings; Absorbent cotton; Digestives for pharmaceutical purposes; Vesicants; Veterinary preparations; Cattle washes; Vitamin preparations; Wart pencils; Hydrogen peroxide for medical purposes; Wadding for medical purposes; Insect repellent incense; Tartar for pharmaceutical purposes; Cream of tartar for pharmaceutical purposes; Diapers for pets; Napkins for incontinents; Bismuth preparations for pharmaceutical purposes; Bismuth subnitrate for pharmaceutical purposes; Vulnerary sponges; Vermifuges; Medicinal roots; Teeth filling material; Dental mastics; Dental lacquer; Cedar wood for use as an insect repellent; Cellulose ethers for pharmaceutical purposes; Cellulose esters for pharmaceutical purposes; Sugar for medical purposes.

The contested goods and services are the following:

Class 3: Cosmetics, Preparations for cosmetic uses.

Class 5: Mineral food supplements, pharmaceutical preparations, medical and veterinary preparations and articles, dietetic preparations, dietary supplements, cosmetics with medical properties.

Class 35: Promotion, organisation of demonstrations and exhibitions for commercial or advertising purposes, business management consultancy, commercial information, the bringing together, for the benefit of others, of the following goods: pharmaceutical preparations, cosmetics, cosmetics with medical properties, dietetic preparations, preparations for cosmetic purposes, dietary supplements, and medical and veterinary preparations and articles.

Contested goods in Class 3

The contested cosmetics, preparations for cosmetic uses are similar to the opponent’s pharmaceutical preparations in Class 5, as they can have the same purpose and they can coincide in producers, end users and distribution channels.

Contested goods in Class 5

Mineral food supplements, pharmaceutical preparations, medical and veterinary preparations and articles are identically included in both lists of goods.

The contested dietary supplements and dietetic preparations and the opponent’s dietary supplements for humans and animals are identical, as they overlap.

The contested cosmetics with medical properties are included in the opponent’s pharmaceutical preparations for skin care. They are identical.

Contested services in Class 35

The activity of retail of goods as a service for which protection of an EUTM can be obtained consists not of the mere act of selling the goods, but in the services rendered around the actual sale of the goods, which are defined in the explanatory note to Class 35 of the Nice Classification by the phrase ‘the bringing together, for the benefit of others, of a variety of goods (excluding the transport thereof), enabling customers to conveniently view and purchase those goods’.

Retail services concerning the sale of particular goods are similar (to a low degree) to these particular goods (05/05/2015, Castello (fig.) / Castelló y Juan S.A. (fig.) et al., EU:T:2015:256, § 33). Although the natures, purposes and methods of use of these goods and services are not the same, they display similarities, as they are complementary and the services are generally offered in the same places as those where the goods are offered for sale. Furthermore, they target the same public.

Therefore, the bringing together, for the benefit of others, of the following goods: pharmaceutical preparations, dietetic preparations, dietary supplements, and medical and veterinary preparations and articles is similar to a low degree to the opponent’s pharmaceutical preparations, pharmaceutical preparations for skin care, dietary supplements for humans and animals, veterinary preparations and articles.

Retail services relating to the sale of particular goods are not similar to other goods. In principle, goods are not similar to services. Too broad a protection would be given to retail services if they were found to be similar, even where the goods sold at retail were highly similar to the goods for which the other mark is registered or for which registration is sought.

Therefore, the bringing together, for the benefit of others, of the following goods: cosmetics, cosmetics with medical properties, preparations for cosmetic purposes, is dissimilar to the opponent’s goods.

Finally, the contested promotion, organisation of demonstrations and exhibitions for commercial or advertising purposes, business management consultancy, commercial information are dissimilar to all of the opponent’s goods. This is because they have different natures and purposes. The applicant’s services relate to advertising and consist of providing others with assistance in the sale of their goods and services by promoting their launch and/or sale, or of reinforcing the client’s position in the market and acquiring competitive advantage through publicity. These services are provided by advertising companies, which study their client’s needs and provide all the necessary information and advice for the marketing of their products and services. Business management, however, takes place at a higher level and aims to set commercial enterprises’ common goals and strategic plans.

They target a different relevant public and are unlikely to come from the same undertaking as the opponent’s goods and services. In addition, they are neither complementary nor in competition.

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.

Both the earlier and the contested mark concern goods in Classes 3 and 5 that target both the general public and professionals (e.g. doctors for pharmaceuticals in Class 5), but the Court assessed the likelihood of confusion for the general public only, because it is the one displaying the lower degree of attention (15/07/2011, T-220/09, ERGO, EU:T:2011:392, § 21).

The degree of attention of the professional public will vary from average to high. The degree of attention of general consumers varies, depending on the type of pharmaceutical product to be purchased. The degree of attention will be higher than average for pharmaceuticals for which a medical prescription is required and for those that must be taken under professional supervision. Consumers are likely to have a high degree of attention in this regard, as the prescription implies a therapeutic necessity (21/10/2008, T-95/07, Prazol, EU:T:2008:455, § 29; 08/07/2009, T-240/08, Oli, EU:T:2009:258, § 50). Consumers will, moreover, show a higher than average degree of attention in relation to pharmaceutical products that are sold without prescription, since non-prescribed pharmaceuticals also affect the state of consumers’ health (15/12/2009, T-412/08, Trubion, EU:T:2009:507, § 28).

The conflicting goods in Class 3 target the general public. Although some of the items at issue are expensive, and may attract greater scrutiny on purchase, their value varies – that is, it is not inherent in the specification of goods that the latter are implicitly expensive. The degree of attention of the average consumer in this matter will vary from average to high.

The services in Class 35 are specialised services targeting the public at large. The degree of attention of the relevant public towards the services is likely to vary from average to higher than average, depending on the nature and the price of the goods subject to the retailing service.

3. The signs

Endosgel	Enterosgel ExtraCaps
Earlier trade mark	Contested sign

The relevant territory is the European Union.

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).

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

Neither of the signs has any meaning per se. However, although average consumers normally perceive a mark as a whole and do not proceed to analyse its various details, the fact remains that, when perceiving a word sign, they will break it down into elements which, for them, suggest a concrete meaning or which resemble words known to them (13/06/2012, T-342/10, Mesilette, EU:T:2012:290, § 33 and case-law cited therein).

In the present case, it can at least not be excluded that the last three letters of the first or sole word of the signs form the word ‘gel’, which refers to ‘a semirigid jelly-like colloid in which a liquid is dispersed in a solid’ (information extracted from Collins English Dictionary,) or, in other words, ‘a thick substance that is like jelly and that is used in various products’ (information extracted from Merriam-Webster). Given its connection to the goods and services at issue and the fact that the word ‘gel’ is phonetically differentiated from the first syllables, the word ‘GEL’ is likely to be understood by the targeted public in all relevant territories. ‘Gel’ is a basic English word that is commonly used in many market sectors throughout the EU, for example in the field of pharmaceutical products and cosmetics. Moreover, an identical word exists in French, Dutch and Romanian, as well as in many other languages of the EU (e.g. Spanish, Portuguese, Croatian, Czech, Italian, German, Swedish and Slovenian). Furthermore, with regard to the territories relevant in the present case, identically or similarly pronounced equivalents exist in Bulgarian (pronounced as ‘gel’), Greek (pronounced as ‘gelés’), Lithuanian (pronounced as ‘gelis’) and Polish (pronounced as ‘żel’). Therefore, for all the above reasons, there are good reasons to assume that ‘gel’ will be understood in all Member States.

The initial parts of the signs may be perceived as references to ‘inside’ or ‘within’ (‘ENDO’) and ‘indicating an intestine’ (‘ENTERO’) (information extracted from Collins Dictionary at https://www.collinsdictionary.com/dictionary/english/endo and https://www.collinsdictionary.com/dictionary/english/entero, respectively).

The semantic content of the initial parts of the signs, ‘ENDO’ and ‘ENTERO’, if grasped by the public, would serve to differentiate the signs.

Notwithstanding that the semantic content evoked by the term ‘gel’ introduces a conceptual similarity between the signs, this is of only minor significance, given its descriptive character with respect to the goods concerned. Indeed, the relevant goods can either be provided in the form of a ‘gel’ (e.g. cosmetics in Class 3 and pharmaceutical and veterinary preparations in Class 5), or at least be prepared with a gel that serves a medical purpose, for example with the aim of restoring health to the skin.

The remaining element of the contested sign, ‘ExtraCaps’, might be understood as referring to extra capsules regarding the goods and services in question. This element is considered non-distinctive for a great part of the public.

The element ‘GEL’ is descriptive in the EU, and therefore is non-distinctive for the goods and services in question.

Visually, both marks are word marks. They coincide in the letters ‘EN’ and ‘OS’ and in the letter sequence ‘GEL’, which is descriptive. They differ in the remaining letters. The contested sign is also perceptibly longer. Therefore, the signs are visually similar to a low degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the earlier sign will be pronounced as [en-dos-gel] and the contested sign as [en-te-ros-gel] [ex-tra-caps]. The pronunciation of the signs coincides in their first syllable, the letters ‘OS’ and the sequence ‘GEL’. The marks have important dissimilarities in their middle parts, ‘TER’, present in the contested sign, which have an important influence on the intonation and rhythm of the signs under comparison. The contested sign also contains the element ‘ExtraCaps’, which is not present in the earlier mark.

Therefore, the signs are aurally similar to a low degree.

Conceptually, as explained above, the signs have in common the concept of ‘gel’, which is descriptive, and differ in the rest of elements. The signs are conceptually similar to a low 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 and services 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 non-distinctive element (‘GEL’) in the mark, as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The goods and services are identical, similar and dissimilar.

It is considered that the visual and aural differences between the signs outweigh the similarities, especially given the descriptive character of the element they have in common, ‘GEL’.

Therefore, owing to the important aural and visual differences, the trade marks in question are sufficiently different overall to exclude a risk of likelihood of confusion, including the risk that consumers would think that the goods at issue come from the same undertaking or from economically-linked undertakings.

Consequently, despite the fact that the general public’s degree of attention in relation to some of the relevant goods and services is high, given that the goods in question treat medical conditions and are generally prescribed by medical professionals, there is no likelihood of confusion between the signs even for the identical goods, for the reasons explained above.

The conclusion set out in the preceding paragraph also applies to health professionals, who will be highly attentive to the visual, phonetic and conceptual differences (e.g. the specialised public will differentiate ‘ENDO’ and ‘ENTERO’) of the marks under comparison, whether or not the product bearing the mark requires a doctor’s prescription.

Therefore, the opposition must be rejected.

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 opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

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

The Opposition Division

Ferenc        GAZDA

José Antonio GARRIDO OTALOA

Loreto URRACA LUQUE

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.