BIO CERAMICA F.I.R. | Decision 2735606
Date Published: Sep 22, 2017
OPPOSITION No B 2 735 606
Bekaertdeslee Innovation, Deerlijkseweg 22, 8790 Waregem, Belgium (opponent), represented by Bernard Maria Gustave Gravez, Victor Braeckmanlaan 107, 9040 Gent, Belgium (professional representative)
a g a i n s t
Home Relax S.R.L., Via Croce Rossa 5/R, 51037 Montale (Pistoia), Italy (applicant).
On 14/09/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 735 606 is rejected in its entirety.
2. The opponent bears the costs.
REASONS:
The opponent filed an opposition against all the goods of European Union trade mark application No 15 407 828. The opposition is based on European Union trade mark registration No 4 917 944 ‘BIO CERAMIC’. 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.
- The goods
The goods on which the opposition is based are the following:
Class 22: Textile fibres; raw fibrous textile materials; ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes); padding and stuffing materials (except of rubber or plastics).
Class 24: Textiles and textile goods, not included in other classes; bed and table covers.
The contested goods are the following:
Class 10: Medical furniture and bedding, equipment for moving patients.
Class 20: Furniture and furnishings.
Class 24: Textile goods, and substitutes for textile goods.
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 10
The contested medical furniture consists of furniture items with specific purpose of being used in medical establishments or when providing medical service or in connection to some medical conditions. The contested equipment for moving patients are goods for moving patients. These are specific medical equipment for this specific purpose. The goods are dissimilar to all the goods of the opponent, which have no points in common with the contested goods as regards the nature, methods of use, manufacturers. The goods are not complementary nor in competition.
Medical bedding goods are intended for use with patients in healthcare institutions and nursing homes. They are not interchangeable with the general purpose goods such as textile goods, not included in other classes; bed and table covers in Class 24 or raw fibrous textile materials in Class 22 of the opponent’s mark. Despite the fact that such goods can be made of textile materials, the goods are not similar. They will not be found at the same sales points. General textile goods, such as bed linen and bed covers are usually sold either in specialist home textile stores or in dedicated sections in department stores or even supermarkets. In contrast, the distribution channels of medical bedding goods are specialised distributors of medical equipment and devices supplying hospitals and specialised shops where patient and nursing care products are sold. The goods have different manufacturers. Furthermore, the contested goods are aimed at the professional public in the medical field, whereas the goods of the earlier mark are aimed at the public at large (14/06/2017, R 2037/2016-2, SUPERCORE inside (fig.) / SUPERCOR (fig.) et al.). The goods are also dissimilar to all the remaining opponent’s goods in class 22 as they have different nature, purpose and methods of use, in addition to different manufacturers and consumers.
Contested goods in Class 20
Furniture and furnishings are various types of furniture and household decoration items. Furniture can include beds, and furnishings can enclose bed and table covers. These goods can have the same purpose of furnishing the house and of interior decoration, have the same distribution channels and consumers as the opponent’s bed and table covers. The goods are complementary. These goods are similar.
Contested goods in Class 24
Textile goods are identically contained in both lists of goods.
Substitutes for textile goods are highly similar to the opponent’s textile goods as they can coincide in producer, end user, distribution channels and method of use. Furthermore they are in competition.
- 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 and similar to a various degrees are directed at the public at large. The degree of attention is deemed to be average.
- The signs
BIO CERAMIC | |
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).
The earlier mark is a word mark. The contested mark is a figurative mark composed of three words placed on three lines, all with different stylisation and colours. The letter O in the contested mark is formed of a red circle and curved lines to its right.
The element BIO is clearly perceived as the first element in both marks. The term ‘BIO’ is defined as a reference to a word BIOLOGICAL, which relates to biology or living organisms or a substance of biological origin. The word “Bio” would be understood by most of the consumers in the relevant territory.
The elements CERAMIC and CERAMICA in both marks are clearly perceived. The meaning of these elements is the same despite being in different languages. The words originate from the Greek word keramikos, from keramos (potter’s clay, pottery). Both words will be associated with objects made from ceramic materials, referring to any non-metallic solid which remains hard when heated. Most consumers throughout the relevant territory will recognize the concept of ‘ceramic’, since it is very close to the equivalent word in most European languages, for example ‘(de) ceramica’ in Italian, ‘cerámica’ in Spanish, ‘céramique’ in French, ‘cerâmico’ in Portuguese, ‘ceramice’ in Romanian, ‘Keramik’ in German, ‘keramische’ in Dutch, ‘keramisk’ in Swedish and Danish, ‘keraaminen’ in Finnish, ‘keramika’, in Estonian ‘keraamika’, ‘kerámiai’ in Hungarian, ‘ceramiczny’ in Polish, ‘keramický’ in Czech and Slovak and ‘keramikas’ in Latvian.
The terms BIO CERAMIC of the earlier mark and BIO CERAMICA of the contested mark are perceived. These words are associated with the same meaning, despite the fact that they bear a difference of one letter at their ends. Both words will be associated with a respective term ‘Biocreamic’– it's a term present at least in English, referring to ‘any ceramic material designed to be biocompatible, used especially for orthopaedic and dental implants; of or relating to bioceramics; made from bioceramic (all quotes extracted from Oxford English Dictionary, 30/08/2017, on https://en.oxforddictionaries.com).
The term F.I.R. refers to thread, in Romanian. For the remaining public, this letter combination is meaningless.
In the earlier mark, the relevant goods are textile goods. Nowadays, a use of ceramic impregnated fabric has become common in many manufacturing areas for a wide array of textile related goods. Ceramic-impregnated fabric is a fabric that has been impregnated with ceramic. Nanometric bioceramic can be incorporated into the polymer from which the fabric is manufactured. Bioceramic nanoparticles are added to the fused polymer. Some types of ceramics show thermally-induced photoluminescence, emitting light in the far infrared (FIR) region of the electromagnetic spectrum. When in contact with the body heat, the thermoluminescence of the fabrics with embedded bioceramic is enhanced. Bioceramics presents high reflection coefficient for the infrared radiation. Taking into account all the abovementioned, it is considered that the words BIO, CERAMIC alone, or the word combination BIO CERAMIC seen as a whole, are at least weak for all the goods concerned.
In the contested mark, the relevant goods are textile goods and substitutes for textile goods, furniture and furnishings. Considering all the abovementioned, it is considered that the words BIO, CERAMICA alone, or the word combination BIO CERAMICA seen as a whole, are weak in respect of these goods. The same conclusion also applies for the element F.I.R. in respect of the Rumanian public who perceive the meaning of that element. For the remaining public, the element F.I.R. is distinctive, as are the device elements described above.
The contested mark has no element that is visually more dominant than other elements.
Visually, the signs coincide in their sequence of letters BIO CERAMIC. However, they differ in the last letter A of the second word element CERAMICA in the contested sign, and also in the element F.I.R., device elements, colours and stylisation of that mark, none of which are present in the earlier mark.
Therefore, considering what has been said about the distinctiveness of the marks, the signs are visually similar to a low degree.
Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the pronunciation of the sequence of letters BIO CERAMIC, present identically in both signs. The pronunciation differs in the sound of the letter A (in contested mark) and in the element F.I.R. of the contested mark, which have no counterparts in the earlier sign.
Therefore, considering what has been said about the distinctiveness of the elements of the marks, the signs are aurally similar to a low degree.
Conceptually, the concept of the elements of the signs has been described above, as well as the distinctiveness. Due to the fact that the signs only coincide in the concepts of elements that are weak for the relevant goods, the marks are conceptually only 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.
- 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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as low for all of the goods.
- Global assessment, other arguments and conclusion
According to the case-law of the Court of Justice, in determining the existence of likelihood of confusion, trade marks have to be compared by making an overall assessment of the visual, aural and conceptual similarities between the marks. The comparison ‘must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components’ (judgment of 11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22 et seq.).
The contested goods are partially identical and similar to a various degrees and partially dissimilar to the opponent’s goods.
The marks share the sequence of letters BIO CERAMIC, found weak. The marks differ in the device elements and the additional word element.
Therefore, the differences between the signs caused by the additional and different word and figurative elements are particularly relevant when assessing the likelihood of confusion between them.
The similarities between the signs, given their elements of low distinctive character are sufficiently outweighed by the differences between the marks as described above. Even considering that an average consumer will display an average degree of attention the fact remains that this consumer is reasonably observant and circumspect. The fact that the similarities between the signs are confined to a sequence of letters clearly making reference to characteristics of these goods is something that the relevant consumers will be well aware of and as such they will be aware of the differences between the signs. In this respect it is settled case law that if trade marks have identical parts that are weak or devoid of distinctive character, the existing differences between the signs are to be given more importance in the overall assessment of the signs (see in this context the decisions of the Boards of Appeal of 18/03/2002, R 0814/2001-3, ‘ALL-DAY AQUA / Krüger All Days’, paragraph 50 and of 14/05/2001, R 0257/2000-4, ‘ e plus / PLUS’, paragraph 22). The comparison must be made by examining each of the marks in question as a whole (judgment of 12/06/2007, C-334/05 P, ‘Limoncello’, paragraph 41). Such differences decrease the likelihood of confusion between the conflicting trade marks.
These factors are sufficient to enable the average consumer to safely distinguish between the signs.
Considering all the above, there is no likelihood of confusion on the part of the public. 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. In the present case the applicant did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.
The Opposition Division
Zuzanna STOJKOWICZ | Erkki MÜNTER | Irina SOTIROVA |
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.