GRAND GREEN | Decision 2579368 - SOKPOL Sp. z.o.o. v. Noble Health Sp. z o.o.
Date Published: Sep 28, 2017
OPPOSITION No B 2 579 368
Sokpol Sp. z.o.o., ul. Kosciuszki 8, 42-300 Myszkow, Poland (opponent), represented by Inventconsult Kancelaria Patentowa Mgr Inż. Maciej Klassek, Sowińskiego 1, 40-272 Katowice, Poland (professional representative)
a g a i n s t
Noble Health Sp. z o.o., ul. Malczewskiego 13/8, 26-600 Radom, Poland (applicant), represented by Jarzynka I Wspólnicy Kancelaria Prawno-Patentowa, ul. Słomińskiego 19/522, 00-195 Warszawa, Poland (professional representative).
On 25/05/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 579 368 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 of European Union trade mark application No 13 962 782. The opposition is based on European Union trade mark registration No 3 362 449. The opponent invoked Article 8(1)(a) EUTMR.
GRAND GREEN | |
Earlier trade mark | Contested sign |
PRELIMINARY REMARK - Article 8(1)(a) CTMR
Although the opponent has based its opposition on Article 8(1)(a) CTMR (as indicated in the notice of opposition), the opposition will nevertheless be examined on the ground of likelihood of confusion, Article 8(1)(b) CTMR, because the grounds in Article 8(1) CTMR are considered to be so related that the opponent’s claim to identity will be construed as also being a claim to a likelihood of confusion, and vice versa.
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 32: Essences, such as natural essences, concentrated fruit juices, aromates and pomaces for production of drinks; preparations, such as aromatic and taste essences for liqueur preparations; tablets and powders for sparkling drinks preparations; fruit juices and drinks; vegetables juices and drinks; sorbets; mineral water; soda water; non-alcoholic extracts from fruit; lemonades, syrups.
As the result of admission of another opposition against the same trade mark application, namely the opposition No B 2 582 628, the contested goods are the following:
Class 5: Dietary supplements for humans for enriching the body with essential vitamins, minerals and substances enhancing the proper functioning of the body; Dietary supplements for increasing immunity and performance of the body; Nutritional and regenerative dietary supplements for humans for improving the appearance of skin, hair and nails; Dietary supplements for humans for restoring skin tissue by means of making the skin more flexible and moisturising the skin.
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 goods in Class 5 are substances prepared for special dietary requirements, with the purpose of treating or preventing disease or are intended to provide nutrients that otherwise may not be consumed in sufficient quantities, whereas the opponent’s goods include juices and non-alcoholic beverages as well as preparations for making beverages, intended to console, satisfy thirst and contribute to the good mood of people at various social events or can be used as ingredients for the preparation of such goods. The contested goods serve a specific medical requirement and are usually consumed under the supervision of a doctor, or at least on a doctor’s recommendation. The purpose of the goods under comparison is clearly different. They are neither in competition with each other nor are they complementary. Moreover, they do not normally originate from the same undertakings, the contested goods being normally produced by pharmaceutical companies and the earlier goods being produced by companies specialised in food and drinks for mass consumption. The goods at issue are not normally sold through the same distribution channels, the contested goods being sold in pharmacies or specialised drugstores, whereas the earlier goods can be served in restaurants and in bars and are on sale in supermarkets and grocery stores and the likes. The fact that some of the relevant goods may coincide in nature (liquids) and in that they are intended for human consumption (drinking) or even in possible effects they may have (providing energy) is not enough to establish similarity. Therefore, these goods are dissimilar.
- Conclusion
According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected.
For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR because the goods are obviously not identical.
Given that the opposition is not well founded under Article 8(1) EUTMR it is unnecessary to examine the evidence of use filed by the opponent.
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
Cristina CRESPO MOLTO | Francesca DINU | Janja FELC |
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.