OPPOSITION DIVISION

OPPOSITION No B 2 678 046

U. Walter GmbH, Dr. Jürgen-Ulderup-Str. 12, 49356 Diepholz, Germany (opponent),

represented by Eisenführ Speiser Patentanwälte Rechtsanwälte Partgmbb, Am

Kaffee-Quartier 3, 28217 Bremen, Germany (professional representative)

a g a i n s t

Kiss Me Organics Limited, 8 Mount Pleasant, Douglas IM1 2PM, Isle of Man

(applicant), represented by André Guerreiro Rodrigues, Rua do Farol 394, 3º Dto,

2. European Union trade mark application No 14 949 721 is rejected for all the

above goods. It may proceed for the remaining goods.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

The opponent filed an opposition against some of the goods of European Union trade

mark application No 14 949 721 for a word mark ‘VITA TEA’, namely against some of

the goods in Class 5 and all the goods in Classes 30 and 32. The opposition is based

on European Union trade mark registration No 14 949 721 for a word mark ‘VitaliTea’.

The opponent invoked Article 8(1)(b) EUTMR.

PRELIMINARY REMARK

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

Decision on Opposition No B 2 678 046 page: 2 of 5

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

Class 5: Nutritional and dietary supplements containing green and white tea; dietary

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 nutritional and dietary supplements containing green and white tea;

dietary supplements containing green tea extract are concentrated sources of

nutrients or other substances with a nutritional or physiological effect the purpose of

which is to supplement a normal diet. They are intended to provide nutrients that may

the body or as natural energy boosts. Chamomile tea for example can help prevent

colds as well as soothe the nervous system thus facilitating sleep. In this specific

case, green and white tea also have a number of health benefits as they are both

high in antioxidants and nutrients that improve fat loss, lower the risk of cancer and

improve brain function to name but a few.

Thus, contrary to the applicant’s allegations, the Opposition Division considers the

opponent’s goods, insofar as they all have nutritional purposes, similar in nature and

method of use to the contested goods. The conflicting products may be found in a

supermarket or even in drugstores or shops which specialize in body health and

balanced nutrition. Therefore, the distribution channels of the conflicting products are

according to the category of goods or services in question.

Decision on Opposition No B 2 678 046 page: 3 of 5

In the present case, the goods found to be similar are directed at the public at large

and at professionals with specific professional knowledge or expertise. Depending on

the nature or price of the goods the degree of attention is likely to vary from average

containing green tea extract in Class 5, irrespective of whether they are issued on

prescription or not, as these goods can affect the user’s state of health).

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,

EU:T:2007:46, § 57). With respect to the term ‘VitaliTea’, notwithstanding that it is

represented in lower or upper case or a combination of those letters, in light of the

above judgment, the Opposition Division considers that at least part of the public will

dissect the elements ‘Vital(i)’ and/or ‘Tea’, respectively.

The element ‘VITAL(I)’ or ‘VITA’ of both signs will be associated by part of the

relevant public with ‘life’ or ‘vitality’ because the word ‘vital’ exists as such in some

languages like in French, Spanish or English for example. More specifically, English

speakers, when pronouncing the earlier mark as a whole, will clearly hear the play on

words and the reference to ‘vitality’. Moreover, ‘VITA’ is a Latin word meaning ‘life’.

Finally, most of the consumers are used to seeing such components in marks with

The element ‘TEA’ of both signs will be understood by a majority of the relevant

public as an aromatic beverage commonly prepared by pouring hot or boiling water

over cured leaves of the Camellia sinensis, an evergreen shrub native to Asia.

Bearing in mind that the relevant goods include tea, this component is descriptive for

this part of the public whilst it may be distinctive if not understood.

At this point it is worth mentioning that the applicant refers to a previous decision of

the Office to support its arguments related to the comparison of the marks (reference

is made to the applicant’s writ dated 15/12/2016 and the Board of Appeal decision

Decision on Opposition No B 2 678 046 page: 4 of 5

dated 20/05/2009, R1367/2007-4, Medipan / MEDIPAX). The Opposition Division

would like to draw the applicant’s attention to the fact that in the quoted decision, the

Board considered the first element ‘MEDI’ of the marks under comparison descriptive

whereas the same does not hold true as regards the element ‘VITA’ which has only

Visually, the signs coincide in the elements ‘VITA’ and ‘TEA’ which constitute the

mark and the fact that the contested mark is made up of two elements whereas the

overcome the finding of at least an average degree of similarity between the signs.

‘VITA’ and ‘TEA’, which constitute the entire contested sign. The pronunciation differs

in the sound of the earlier mark’s additional middle letters ‘LI’ where the consumer

noticeable. Therefore, the signs are aurally similar to at least an average degree thus

taking into account the distinctive issues.

Conceptually, reference is made to the previous assertions concerning the semantic

of ‘vital’ and ‘tea’, the signs are conceptually similar to at least an average degree

thus taking into account the distinctive issues. In the event that no meaning can be

attributed to the signs, it is not possible to make a conceptual comparison. Thus the

assessment of the similarity of signs cannot be influenced

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. Even considering what was stated in section c) of this decision, the

The goods have been found similar. The earlier mark has a normal degree of

distinctiveness. The signs are visually, aurally and conceptually similar to at least an

average degree, although for part of the public, unable to find a meaning in the signs,

a conceptual comparison cannot be made. The relevant public is the public at large

and/or the professional public whose level of attention varies from average to high.

Decision on Opposition No B 2 678 046 page: 5 of 5

In view of all the relevant factors, there is a likelihood of confusion even for the

professional public with a high level of attention. Even consumers who pay a high

degree of attention need to rely on their imperfect recollection of trade marks

Consequently, the Opposition Division finds that there is a likelihood of confusion on

opponent’s European Union trade mark registration No 14 949 721. It follows that the

COSTS

Since the applicant is the losing party, it must bear the opposition fee as well as the

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.

Vanessa PAGE Klaudia MISZTAL Lucinda CARNEY

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

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.