Innomed | Decision 2607524
Date Published: Oct 1, 2017
OPPOSITION No B 2 607 524
Montei Consulting Inc., Tortola Pasea Estate, Road Town, British Virgin Islands (opponent), represented by Germus és Társai Ügyvédi Iroda, Budapest, Pauler u. 11, 1013 Hungary (professional representative)
a g a i n s t
Bálint Medgyesi and József Medgyesi, Palotás Ifjúság út 16, 3042 Hungary (applicants).
On 19/04/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 607 524 is upheld for all the contested goods.
2. European Union trade mark application No 14 451 843 is rejected in its entirety.
3. The applicants bear the costs, fixed at EUR 650.
REASONS:
The opponent filed an opposition against all the goods of European Union trade mark application No 14 451 843. The opposition is based on, inter alia, Hungarian trade mark registration No 201 125. 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 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 Hungarian trade mark registration No 201 125.
- The goods
The goods on which the opposition is based are, inter alia, the following:
Class 30: Tea, cereal preparations, sauces (condiments), spices.
Following a limitation requested by the applicants on 27/05/2016, the contested goods are the following:
Class 30: Baked goods, confectionery, chocolate and desserts.
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 baked goods and desserts are included in the broad category of the opponent’s cereal preparations, which are food preparations based on grains, such as cakes, treats, bars or puddings made of cereals and fruits. Therefore, they are identical.
The contested confectionery is similar to the opponent’s cereal preparations, as they have the same producers, intended purpose, distribution channels and relevant public. Furthermore, they are in competition or interchangeable.
The contested chocolate is similar to the opponent’s cereal preparations, as they have the same producers, distribution channels and relevant public. Furthermore, they are in competition or interchangeable.
- 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 are directed at the public at large. The degree of attention is considered average.
- The signs
INNO LAND | Innomed |
Earlier trade mark | Contested sign |
The relevant territory is Hungary.
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).
Both signs are word marks. The earlier mark consists of the phrase ‘INNO LAND’ and the contested sign consists of the word ‘Innomed’. The protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics which that mark might possess (22/05/2008, T-254/06, RadioCom, EU:T:2008:165, § 43). Therefore, it is irrelevant whether word marks are depicted in lower or upper case letters. The elements of the signs have no meaning for the relevant public and are, therefore, distinctive.
Visually and aurally, the signs coincide in the letters ‘Inno**(*)d’ (and their sounds). The letters ‘Inno’ constitute the first element of the earlier mark and the first four letters of the contested sign, and ‘d’ is the last letter of each sign. The signs differ in the letters ‘Lan’ of the earlier mark and the letters ‘me’ of the contested sign (and their sounds), which have no counterparts in the other sign.
The first four letters of the signs are identical. Consumers generally tend to focus on the first part of a sign when being confronted with a trade mark. This is justified by the fact that the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.
As the signs have in common five letters out of eight in the earlier mark and this coincidence is in their beginnings, the signs are visually and aurally similar to an average degree.
Conceptually, neither of the signs has 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.
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. 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.
- Global assessment, other arguments and conclusion
The contested goods are identical or similar to the opponent’s goods and they target the public at large, whose degree of attention is average.
The signs under comparison are visually and aurally similar to an average degree and, as a conceptual comparison is not possible, the conceptual aspect has no influence on the assessment of their similarity. Both signs are word marks. The signs have in common five letters out of eight in the earlier mark; four of these letters are at the beginning of each sign.
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).
Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).
In their observations, the applicants argue that the earlier trade mark did not appear in the search report sent by the Office. As established by Article 38 EUTMR, the European Union search report is for information purposes and is not exhaustive. It does not prevent in any way the proprietors of earlier trade marks from opposing the registration of a trade mark registration according to Article 8 EUTMR. Therefore, the applicants’ claim must be set aside.
Considering all the above, there is a likelihood of confusion on the part of the public.
Therefore, the opposition is well founded on the basis of the opponent’s Hungarian trade mark registration No 201 125. It follows that the contested trade mark must be rejected for all the contested goods.
As the earlier right, Hungarian trade mark registration No 201 125, leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).
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 applicants are the losing parties, they must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.
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.
The Opposition Division
Fabian GARCÍA QUINTO | Loreto URRACA LUQUE | Elisa ZAERA CUADRADO |
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.