OPPOSITION No B 2 302 431

Médis - Companhia Portugesa De Seguros De Saúde, S.A., Avenida José Malhoa, 27, 1070-157 Lisboa, Portugal (opponent), represented by Gastäo da Cunha Ferreira, LDA, Rua dos Bacalhoeiros, nº. 4, 1100-070 Lisboa, Portugal (professional representative)

a g a i n s t

Centrum Medycyny Funkcjonalnej "Arkadia-Med" P.U.H., lek. Serhii Masiuk , 3 Maja 22/1, 40-096 Katowice, Poland (applicant), represented by Inventconsult Kancelaria Patentowa Mgr Inz. Maciej Klassek, Sowińskiego 1, 40-272 Katowice, Poland (professional representative).

On 20/10/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 302 431 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 in Classes 3, 5, 10 and 44 of European Union trade mark application No 12 161 311. The opposition is based on the following six earlier rights: (1) European Union trade mark application No 6 647 093 , (2) Portuguese trade mark registration No 339 011 , (3) Portuguese trade mark registration No 330 582 ,

(4) Portuguese trade mark registration No 309 187 ‘ ’, (5) Portuguese trade mark registration No 472 941 ‘MAIS MÉDIS’ and (6) Portuguese trade mark registration No 472 933 . The opponent invoked Article 8(1)(a) and (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 Portuguese trade mark registration No 309 187 ‘Médis’.

1. The goods and services

The services on which the opposition is based are the following:

Class 42: Health care services provider, integrated by doctors, hospitals and other medical care providers.

The contested goods and services are the following:

	Class 3: Bleaching preparations and other substances for laundry use; Cleaning, polishing, scouring and abrasive preparations; Soaps; Perfumery, essential oils, cosmetics, excluding hair cosmetics and colouring cosmetics; dentifrices; Ammonia [volatile alkali] [detergent]; Aloe vera preparations for cosmetic purposes; Alum stones [astringents]; Antiperspirants [toiletries]; Non-slipping liquids for floors; Non-slipping wax for floors; Antistatic preparations for household purposes; Badian essence; Cake flavourings [essential oils]; Flavorings for beverages [essential oils]; Aromatics [essential oils]; Balms other than for medical purposes; Bergamot oil; Laundry soaking preparations; Lip glosses; Amber [perfume]; Tissues impregnated with cosmetic lotions; Cleaning preparations; Depilatories; Detergents other than for use in manufacturing operations and for medical purposes; Deodorants for human beings or for animals; Deodorants for pets; Scented wood; Essential oils of cedarwood; Extracts of flowers [perfumes]; Ethereal essences; Ethereal oils; Paint stripping preparations; Geraniol; Heliotropine; Jasmine oil; Ionone [perfumery]; Polishing rouge; Joss sticks; Incense; Scale removing preparations for household purposes; Smoothing stones; Cosmetic preparations for baths; Color-brightening chemicals for household purposes [laundry]; Leather preservatives [polishes]; Corundum [abrasive]; Cosmetics for animals; Cosmetic preparations for slimming purposes; Cleaning chalk; Whiting; Shoe cream; Cosmetic creams; Skin whitening creams; Laundry starch; Smoothing preparations [starching]; Silicon carbide [abrasive]; Bases for flower perfumes; Varnish-removing preparations; Lotions for cosmetic purposes, excluding hair lotions; Tripoli stone for polishing; Beauty masks; Abrasives; Abrasive paper; Potpourris [fragrances]; Mint for perfumery; Mint essence [essential oil]; Cleansing milk for toilet purposes; Almond milk for cosmetic purposes; Cakes of soap; Soap; Deodorant soap; Disinfectant soap; Soap for brightening textile; Medicated soap; Almond soap; Antiperspirant soap; Soap for foot perspiration; Quillaia bark for washing; Color-removing preparations; Breath freshening sprays; Degreasers other than for use in manufacturing processes; Fumigation preparations [perfumes]; Oils for cleaning purposes; Lavender oil; Almond oil; Rose oil; Oil of turpentine for degreasing; Oils for cosmetic purposes, excluding hair oils; Oils for perfumes and scents; Essential oils of citron; Essential oils of lemon; Oils for toilet purposes, excluding hair oils; Grinding preparations; Sandpaper; Wallpaper cleaning preparations; Pastes for razor strops; Breath freshening strips; Shoe polish; Polish for furniture and flooring; Perfumery; Perfumes; Musk [perfumery]; Sandcloth; Glass cloth; Javelle water; Polishing stones; Polishing creams; Polishing paper; Furbishing preparations; Denture polishes; Polishing preparations; Shining preparations [polish]; Volcanic ash for cleaning; Canned pressurized air for cleaning and dusting purposes; Laundry glaze; Dry-cleaning preparations; Laundry preparations; Preparations to make shiny the leaves of plants; Sunscreen preparations; Sun-tanning preparations [cosmetics]; Douching preparations for personal sanitary or deodorant purposes [toiletries]; Preparations for cleaning dentures; Pumice stone; Rust removing preparations; Safrol; Sachets for perfuming linen; Cloths impregnated with a detergent for cleaning; Leather bleaching preparations; Cosmetic preparations for skin care; Starch glaze for laundry purposes; Washing soda, for cleaning; Bleaching soda; Soda lye; Bath salts, not for medical purposes; Bleaching salts; Windscreen cleaning liquids; Dentifrices; Scouring solutions; Air fragrancing preparations; Drying agents for dishwashing machines; Laundry blueing; Shampoos for pets; Shoemakers' wax; Emery; Emery paper; Emery cloth; Lipsticks; Floor wax removers [scouring preparations]; Talcum powder, for toilet use; Turpentine, for degreasing; Terpenes [essential oils]; Diamantine [abrasive]; Greases for cosmetic purposes, not for hair care; Toiletries, excluding hair toiletries and colouring; Astringents for cosmetic purposes; Preparations for unblocking drain pipes; Mouth washes, not for medical purposes; Cotton sticks for cosmetic purposes; Cotton wool for cosmetic purposes; Petroleum jelly for cosmetic purposes; Carbides of metal [abrasives]; Gaultheria oil; Eau de Cologne; Lavender water; Toilet water; Scented water; Shoe wax; Floor wax; Waxes for leather; Tailors' wax; Polishing wax; Laundry wax; Cobblers' wax; Bleaching preparations [decolorants] for cosmetic purposes, not for bleaching of hair; Laundry bleach; Stain removers; Massage gels other than for medical purposes; Dental bleaching gels; Cosmetic kits; Fabric softeners for laundry use; Lacquer-removing preparations.
	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; Cooling sprays for medical purposes; Aconitine; Formic aldehyde for pharmaceutical purposes; Aldehydes for pharmaceutical purposes; Algicides; Alginates for pharmaceutical purposes; Alginate dietary supplements; Alkaline iodides for pharmaceutical purposes; Alkaloids for medical purposes; Alcohol for pharmaceutical purposes; Medicinal alcohol; Aloe vera preparations for pharmaceutical purposes; Dental amalgams; Amino acids for medical purposes; Amino acids for veterinary purposes; Anaesthetics; Angostura bark for medical purposes; Antibiotics; Chemical contraceptives; Antiseptic cotton; Antiseptics; Appetite suppressants for medical purposes; Appetite suppressant pills; First-aid boxes, filled; Medicine cases, portable, filled; Aseptic cotton; Asthmatic tea; Germicides; Bacteriological preparations for medical and veterinary use; Bacterial preparations for medical and veterinary use; Bacterial poisons; Balsamic preparations for medical purposes; Balms for medical purposes; Bandages for dressings; Stick liquorice for pharmaceutical purposes; Albuminous foodstuffs for medical purposes; Albuminous preparations for medical purposes; Protein dietary supplements; Albumin dietary supplements; Protein supplements for animals; Biocides; Biological tissue cultures for medical purposes; Biological tissue cultures for veterinary purposes; Biological preparations for medical purposes; Biological preparations for veterinary purposes; Bismuth subnitrate for pharmaceutical purposes; Bismuth preparations for pharmaceutical purposes; Dietary fiber; Mud for baths; Medicinal mud; Bracelets for medical purposes; Wart pencils; Bromine for pharmaceutical purposes; Cattle washes; Cedar wood for use as an insect repellent; Cellulose esters for pharmaceutical purposes; Cellulose ethers for pharmaceutical purposes; Chemical preparations for pharmaceutical purposes; Chemical preparations for medical purposes; Chemical preparations for veterinary purposes; Chemico-pharmaceutical preparations; Quinine for medical purposes; Chinoline for medical purposes; Cinchona for medical purposes; Surgical dressings; Diabetic bread adapted for medical use; Chloroform; Extracts of hops for pharmaceutical purposes; Tissues impregnated with pharmaceutical lotions; Chemical preparations for the diagnosis of pregnancy; Sugar for medical purposes; Candy, medicated; Suppositories; Dental cements; Dental impression materials; Dental abrasives; Detergents for medical purposes; Deodorants, other than for human beings or for animals; Disinfectants for hygiene purposes; Disinfectants for chemical toilets; Diagnostic preparations for medical purposes; Diastase for medical purposes; Dietetic beverages adapted for medical purposes; Dietetic substances adapted for medical use; Digitalin; Yeast for pharmaceutical purposes; Yeast dietary supplements; Elixirs [pharmaceutical preparations]; Enzyme preparations for medical purposes; Enzyme preparations for veterinary purposes; Ferments for pharmaceutical purposes; Enzymes for medical purposes; Enzymes for veterinary purposes; Milk ferments for pharmaceutical purposes; Enzyme dietary supplements; Esters for pharmaceutical purposes; Ethers for pharmaceutical purposes; Eucalyptol for pharmaceutical purposes; Eucalyptus for pharmaceutical purposes; Pharmaceutical preparations; Phenol for pharmaceutical purposes; Chemical preparations for treating phylloxera; Phosphates for pharmaceutical purposes; Fungicides; Vulnerary sponges; Gallic acid for pharmaceutical purposes; Gauze for dressings; Gases for medical purposes; Gentian for pharmaceutical purposes; Soil-sterilising preparations; Glycerophosphates; Glycerine for medical purposes; Aluminium acetate for pharmaceutical purposes; Glucose for medical purposes; Glucose dietary supplements; Febrifuges; Mustard for pharmaceutical purposes; Mustard oil for medical purposes; Preparations for destroying dry rot fungus; Gum for medical purposes; Chewing gum for medical purposes; Gamboge for medical purposes; Gurjun [gurjon, gurjan] balsam for medical purposes; Guaiacol for pharmaceutical purposes; Hematogen; Hemoglobin; Hemorrhoid preparations; Hemostatic pencils; Medicinal tea; Herbal teas for medicinal purposes; Herbicides; Absorbent cotton; Hormones for medical purposes; Hydrastine; Hydrastinine; Surgical implants [living tissues]; Insecticides; Personal sexual lubricants; Douching preparations for medical purposes; Isotopes for medical purposes; Jalap; Iodine for pharmaceutical purposes; Iodides for pharmaceutical purposes; Iodoform; Tincture of iodine; Jujube, medicated; Insect repellent incense; Calomel; Camphor for medical purposes; Camphor oil for medical purposes; Cream of tartar for pharmaceutical purposes; Candy for medical purposes; Bath salts for medical purposes; Bath preparations, medicated; Therapeutic preparations for the bath; Oxygen baths; Cachets for pharmaceutical purposes; Capsules for medicines; Carbolineum [parasiticide]; Cachou for pharmaceutical purposes; Rubber for dental purposes; Caustic pencils; Casein dietary supplements; Wheat germ dietary supplements; Adhesives for dentures; Cocaine; Sarsaparilla for medical purposes; Collodion for pharmaceutical purposes; Stem cells for medical purposes; Stem cells for veterinary purposes; Compresses; Condurango bark for medical purposes; Dill oil for medical purposes; Fennel for medical purposes; Barks for pharmaceutical purposes; Medicinal roots; Bone cement for surgical and orthopaedic purposes; Creosote for pharmaceutical purposes; Blood for medical purposes; Croton bark; Styptic preparations; Cultures of microorganisms for medical and veterinary use; Curare; Quassia for medical purposes; Acids for pharmaceutical purposes; Quebracho for medical purposes; Flowers of sulphur for pharmaceutical purposes; Dental lacquer; Lactose for pharmaceutical purposes; Larvae exterminating preparations; Sulphur sticks [disinfectants]; Lecithin for medical purposes; Lecithin dietary supplements; Medicinal infusions; Medicines for human purposes; Medicines for dental purposes; Medicines for veterinary purposes; Collyrium; Adjuvants for medical purposes; Fly glue; Lotions for pharmaceutical purposes; Lotions for veterinary purposes; Lupulin for pharmaceutical purposes; Liquorice for pharmaceutical purposes; Pharmaceutical preparations for treating dandruff; Fish meal for pharmaceutical purposes; Chemical preparations to treat mildew; Magnesia for pharmaceutical purposes; Sanitary pants; Pants, absorbent, for incontinents; Panty liners [sanitary]; Meal for pharmaceutical purposes; Mangrove bark for pharmaceutical purposes; Ointments for pharmaceutical purposes; Dental mastics; Liniments; Irish moss for medical purposes; Melissa water for pharmaceutical purposes; Menthol; Mint for pharmaceutical purposes; Headache pencils; Articles for headache; Preparations of trace elements for human and animal use; Nutritive substances for microorganisms; Mineral food supplements; Royal jelly for pharmaceutical purposes; Royal jelly dietary supplements; Milk of almonds for pharmaceutical purposes; Lacteal flour for babies; Anti-uric preparations; Mothproofing preparations; Moleskin for medical purposes; Fly catching paper; Fly destroying preparations; Powder of cantharides; Myrobalan bark for pharmaceutical purposes; Preparations for destroying mice; Tinctures for medical purposes; Medicinal drinks; Narcotics; Drugs for medical purposes; Soporifics; Nervines; Anti-rheumatism rings; Antiparasitic collars for animals; Acetates for pharmaceutical purposes; Eye-washes; Eyepatches for medical purposes; Depuratives; Medical preparations for slimming purposes; Slimming pills; Corn remedies; Corn rings for the feet; Chemical reagents for medical or veterinary purposes; Frostbite salve for pharmaceutical purposes; Chilblain preparations; Deodorants for clothing and textiles; Fumigation preparations for medical purposes; Nutritional supplements; Poultices; Mustard plasters; Linseed oil dietary supplements; Medicinal oils; Oil of turpentine for pharmaceutical purposes; Lead water; Tanning pills; Preparations for the treatment of burns; Scapulars for surgical purposes; Sanitary towels; Dressings, medical; Opiates; Opium; Opodeldoc; Opotherapy preparations; Bronchodilating preparations; Blood plasma; Insect repellents; Paper for mustard plasters; Reagent paper for medical or veterinary purposes; Mothproof paper; Tobacco-free cigarettes for medical purposes; Parasiticides; Lozenges for pharmaceutical purposes; Vesicants; Pectin for pharmaceutical purposes; Pepsins for pharmaceutical purposes; Peptones for pharmaceutical purposes; Pyrethrum powder; Pesticides; Babies' diaper-pants; Napkins for incontinents; Diapers for pets; Babies' napkins [diapers]; Leeches for medical purposes; Mouthwashes for medical purposes; Remedies for perspiration; Vaginal washes; Bunion pads; Bacteriological culture mediums; Sanitary pads; Breast-nursing pads; Pomades for medical purposes; Preparations for reducing sexual activity; Porcelain for dental prostheses; Potassium salts for medical purposes; Air deodorising preparations; Air purifying preparations; Preparations for destroying noxious animals; By-products of the processing of cereals for dietetic or medical purposes; Propolis for pharmaceutical purposes; Propolis dietary supplements; Pearl powder for medical purposes; Analgesics; Antiparasitic preparations; Anti-rheumatism bracelets; Laxatives; Evacuants; Chemical conductors for electrocardiograph electrodes; Adhesive plasters; Dog lotions; Dog washes; Repellents for dogs; Pollen dietary supplements; Rhubarb roots for pharmaceutical purposes; Radium for medical purposes; Radioactive substances for medical purposes; Radiological contrast substances for medical purposes; Solvents for removing adhesive plasters; Acaricides; Solutions for contact lenses; Mercurial ointments; Castor oil for medical purposes; Serotherapeutic medicines; Linseed for pharmaceutical purposes; Linseed meal for pharmaceutical purposes; Linseed dietary supplements; Pharmaceutical preparations for skin care; Starch for dietetic or pharmaceutical purposes; Anticryptogamic preparations; Slug exterminating preparations; Malt for pharmaceutical purposes; Malted milk beverages for medical purposes; Sunburn ointments; Sunburn preparations for pharmaceutical purposes; Chemical preparations to treat wheat smut; Sodium salts for medical purposes; Salts for medical purposes; Salts for mineral water baths; Mineral water salts; Semen for artificial insemination; Cement for animal hooves; Ergot for pharmaceutical purposes; Vermifuges; Steroids; Sterilising preparations; Alloys of precious metals for dental purposes; Remedies for foot perspiration; Strychnine; Sulphonamides [medicines]; Dietary supplements for animals; Serums; Siccatives [drying agents] for medical purposes; Syrups for pharmaceutical purposes; Lint for medical purposes; Vaccines; Rat poison; Contact lens cleaning preparations; Vermin destroying preparations; Antioxidant pills; Sanitary tampons; Belts for sanitary napkins [towels]; Adhesive bands for medical purposes; Thermal water; Turpentine for pharmaceutical purposes; Surgical tissues; Oxygen for medical purposes; Milking grease; Greases for medical purposes; Greases for veterinary purposes; Cod liver oil; Digestives for pharmaceutical purposes; Fumigating sticks; Poisons; Smelling salts; Thymol for pharmaceutical purposes; Tobacco extracts [insecticides]; Sedatives; Preparations of lime for pharmaceutical purposes; Wadding for medical purposes; Cotton for medical purposes; Petroleum jelly for medical purposes; Charcoal for pharmaceutical purposes; Veterinary preparations; Tartar for pharmaceutical purposes; Vine disease treating chemicals; Vitamin preparations; Medicinal hair growth preparations; Sea water for medicinal bathing; Hydrogen peroxide for medical purposes; Bicarbonate of soda for pharmaceutical purposes; Mineral waters for medical purposes; Hydrated chloral for pharmaceutical purposes; Molding wax for dentists; Decoctions for pharmaceutical purposes; Tonics [medicines]; Preparations to facilitate teething; Medicines for alleviating constipation; Teeth filling material; Gelatine for medical purposes; Smoking herbs for medical purposes; Medicinal herbs; Dental amalgams of gold; Caustics for pharmaceutical purposes; Preparations for callouses; Animal washes; Dietetic foods adapted for medical purposes; Food for babies.
	Class 10: Surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; Orthopedic articles; Suture materials; Electric acupuncture instruments; Apparatus for use in medical analysis; Blood testing apparatus; Anaesthetic apparatus; Microdermabrasion apparatus; Vibromassage apparatus; Balling guns; Bandages, elastic; Cupping glasses; Basins for medical purposes; Bed pans; Boots for medical purposes; Dropper bottles for medical purposes; Babies' bottles; Obstetric apparatus for cattle; Urethral probes; Catheters; Surgical apparatus and instruments; Clips, surgical; Appliances for washing body cavities; Sphygmomanometers; Defibrillators; Dental apparatus, electric; Dental apparatus and instruments; Dentists' armchairs; Diagnostic apparatus for medical purposes; Dialyzers; Drainage tubes for medical purposes; Radiology screens for medical purposes; Electrodes for medical use; Electrocardiographs; Heating pads, electric, for medical purposes; Filters for ultraviolet rays, for medical purposes; Physiotherapy apparatus; Armchairs for medical or dental purposes; Surgical sponges; Galvanic therapeutic appliances; Gastroscopes; Apparatus for the treatment of deafness; Abdominal corsets; Corsets for medical purposes; Teething rings; Love dolls [sex dolls]; Hematimeters; Acupuncture needles; Needles for medical purposes; Artificial breasts; Surgical implants [artificial materials]; Inhalers; Incubators for babies; Incubators for medical purposes; Enema apparatus for medical purposes; Syringes for injections; Strait jackets; Cannulae; Catgut; Castrating pincers; Forceps; Blankets, electric, for medical purposes; Radium tubes for medical purposes; Compressors [surgical]; Thermo-electric compresses [surgery]; Tips for crutches for invalids; Esthetic massage apparatus; Droppers for medical purposes; Commode chairs; Crutches; Lamps for medical purposes; Quartz lamps for medical purposes; Ultraviolet ray lamps for medical purposes; Lancets; Lasers for medical purposes; Ear picks; Water beds for medical purposes; Beds, specially made for medical purposes; Splints, surgical; Mirrors for dentists; Mirrors for surgeons; Spoons for administering medicine; Massage apparatus; Anaesthetic masks; Masks for use by medical personnel; Childbirth mattresses; Furniture especially made for medical purposes; Medical apparatus and instruments; Traction apparatus for medical purposes; Air mattresses, for medical purposes; Air cushions for medical purposes; Temperature indicator labels for medical purposes; Knee bandages, orthopedic; Thread, surgical; Ambulance stretchers; Stretchers, wheeled; Knives for surgical purposes; Scissors for surgery; Corn knives; Orthopedic footwear; Arch supports for footwear; Finger guards for medical purposes; Apparatus for artificial respiration; Fumigation apparatus for medical purposes; Clothing especially for operating rooms; Ophthalmometers; Ophthalmoscopes; Plaster bandages for orthopedic purposes; Suspensory bandages; Supportive bandages; Orthodontic appliances; Orthopedic articles; Orthopedic belts; Orthopedic soles; Maternity belts; Belts for medical purposes; Belts, electric, for medical purposes; Galvanic belts for medical purposes; Abdominal belts; Hypogastric belts; Trusses; Umbilical belts; Pessaries; Saws for surgical purposes; Supports for flat feet; Abdominal pads; Pads [pouches] for preventing pressure sores on patient bodies; Thermal packs for first aid purposes; Cushions for medical purposes; Air pillows for medical purposes; Soporific pillows for insomnia; Receptacles for applying medicines; Containers especially made for medical waste; Obstetric apparatus; Pumps for medical purposes; Elastic stockings for surgical purposes; Stockings for varices; Hot air therapeutic apparatus; Condoms; Apparatus and installations for the production of X-rays, for medical purposes; X-ray apparatus for medical purposes; Artificial limbs; Intraocular prostheses [lenses] for surgical implantation; Medical guidewires; Surgical drapes; Incontinence sheets; Draw-sheets for sick beds; Sterile sheets, surgical; Instrument cases for use by doctors; Cases fitted for medical instruments; Cutlery [surgical]; Physical exercise apparatus, for medical purposes; Invalids' hoists; Insufflators; Pulse meters; Radiological apparatus for medical purposes; Radiotherapy apparatus; Resuscitation apparatus; Body rehabilitation apparatus for medical purposes; Gloves for medical purposes; Gloves for massage; X-ray photographs for medical purposes; X-ray tubes for medical purposes; Respirators for artificial respiration; Aerosol dispensers for medical purposes; Sprayers for medical purposes; Scalpels; Artificial skin for surgical purposes; Hearing protectors; Hearing aids for the deaf; Teats; Feeding bottle teats; Bougies [surgery]; Probes for medical purposes; Spirometers [medical apparatus]; Spittoons for medical purposes; Contraceptives, non-chemical; Stents; Stethoscopes; Operating tables; Injectors for medical purposes; Urethral syringes; Syringes for medical purposes; Uterine syringes; Vaginal syringes; Hypodermic syringes; Heart pacemakers; Artificial jaws; Tongue scrapers; Brushes for cleaning body cavities; Artificial eyes; Dentures; Artificial teeth; Pins for artificial teeth; Slings [supporting bandages]; Thermometers for medical purposes; Ear trumpets; Trocars; Urological apparatus and instruments; Urinals [vessels]; Nursing appliances; Breast pumps; Protection devices against X-rays, for medical purposes; Veterinary apparatus and instruments; Bed vibrators; Hot air vibrators for medical purposes; Dental burs; Hair prostheses; Water bags for medical purposes; Ice bags for medical purposes; Feeding bottle valves; Ear plugs [ear protection devices]; Douche bags; Suture needles; Suture materials.
	Class 44: Medical services; Veterinary services; Hygienic and beauty care for human beings or animals; Agriculture, horticulture and forestry services; Aquaculture services; Aromatherapy services; Blood bank services; Chiropractics; Tree surgery; Plastic surgery; Weed killing; Dentistry; Physiotherapy; Animal breeding; Hospices; Hair implantation; Flower arranging; Public baths for hygiene purposes; Turkish baths; Manicuring; Massage; Landscape gardening; Gardening; Horticulture; Nursing, medical; Health care; Opticians' services; Health centers; Nursing homes; Rest homes; Medical assistance; Veterinary assistance; Pharmacy advice; Landscape design; Services of a psychologist; Rehabilitation for substance abuse patients; Aerial and surface spreading of fertilizers and other agricultural chemicals; Tree planting for carbon offsetting purposes; Hairdressing salons; Beauty salons; Sanatoriums; Plant nurseries; Hospitals; Artificial insemination services; Tattooing; Vermin exterminating for agriculture, horticulture and forestry; Therapy services; Lawn care; Health counseling; Pharmacists' services to make up prescriptions; Medical clinic services; Health spa services; Speech therapy services; Alternative medicine services; Midwife services; Telemedicine services; Sauna services; Solarium services; Visagists' services; Wreath making; Medical equipment rental; Farming equipment rental; Rental of sanitation facilities; Animal grooming; Pet grooming; In vitro fertilization services.

As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services shall not be regarded as being similar or dissimilar to each other on the ground that they appear in the same or different classes under the Nice Classification.

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 3

All contested goods in Class 3 are dissimilar to the services of the opponent, because they are mainly manufactured by producers of cleaning preparations and personal care products which do not offer health services. Furthermore, they do not serve the same purpose, since the services are intended to cure ailments and the contested goods are made to clean or to take care of the body hygiene or appearance and have therefore a completely different purpose. For the same reasons, the distribution channels are different as are the sales outlets and they are not complementary nor in competition with each other.

Contested goods in Class 5

The contested food for babies; Fungicides, herbicides; Algicides; Deodorants, other than for human beings or for animals; Deodorants for clothing and textiles; Air deodorising preparations have a different nature and purpose as the services of the opponent, namely to feed at one hand, and to eliminate algae or to kill fungi, or fungal spores in agriculture and to extinguish weeds and also to improve the smell of cloth or air. Therefore the distribution channels, the sales outlets and the producers will be different from the services the older mark is protected for. Therefore, these goods are dissimilar to the services of the opponent.

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

Contested goods in Class 10:

Although the goods and services in question are not identical, it is clear that at least some of the contested goods in Class 10 have a certain similarity to the services on which the opposition is based, since goods in Class 10 such as surgical apparatus and instruments are used in the context of medical – either human or animal – health care, have the same purpose as and are complementary to the earlier services. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods in Class 10 were similar to a low degree to the services of the earlier mark.

Contested services in Class 44:

Medical services; Veterinary services; Aromatherapy services; Blood bank services; Chiropractics; Plastic surgery; Dentistry; Physiotherapy; Hospices; Hair implantation; Massage; Nursing, medical; Health care; Opticians' services; Health centers; Nursing homes; Rest homes; Medical assistance; Veterinary assistance; Pharmacy advice; Services of a psychologist; Rehabilitation for substance abuse patients; Sanatoriums; Hospitals; Artificial insemination services; Therapy services; Health counseling; Pharmacists' services to make up prescriptions; Medical clinic services; Health spa services; Speech therapy services; Alternative medicine services; Midwife services; Telemedicine services; In vitro fertilization services of the contested sign are identical to the opponent’s services, as those contested services are included in the broad category or overlap with the opponent’s Health care services provider, integrated by doctors, hospitals and other medical care providers services. It should be added that the different classification of the health care services is only due to a revision of the Nice Classification (former Class 42 is now Class 44).

Agriculture, horticulture and forestry services; Tree surgery; Weed killing; Flower arranging; Landscape gardening; Gardening; Horticulture; Landscape design; Aerial and surface spreading of fertilizers and other agricultural chemicals; Tree planting for carbon offsetting purposes; Vermin exterminating for agriculture, horticulture and forestry; Lawn care; Plant nurseries; Farming equipment rental are all services related to agriculture and plants and therefore the nature of these services is completely different to the nature of the services protected by the earlier right, and furthermore they serve a different purpose, have different providers, and are not complementary or in competition with each other. These services are therefore dissimilar.

Aquaculture services; Animal grooming; Animal breeding; Pet grooming are services

related to breeding or the beauty care of animals and therefore the nature of these services is completely different to the nature of the services protected by the earlier right and furthermore they serve a different purpose, have different providers, and are not complementary or in competition with each other. These services are therefore dissimilar.

Hairdressing salons; Beauty salons; ; Hygienic and beauty care for human beings or animals; Manicuring; Tattooing; Sauna services; Public baths for hygiene purposes; Turkish baths; Solarium services; Visagists' services are related to embellish human beings and/or to the well-being of humans or animals. Those services therefore have a different nature and are provided by different companies and furthermore they serve a different purpose, and are not complementary or in competition with each other, and are for this reason dissimilar to the opponent’s service.

Wreath making; Rental of sanitation facilities; Medical equipment rental; are also services which have a completely different nature as the services the opponent provides, furthermore they serve a different purpose, have different providers, and are not complementary or in competition with each other, and are therefore dissimilar to these services.

According to Article 8(1) (b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Therefore as regards the dissimilar goods in Class 3 and Class 5, and the dissimilar services in Class 44, one of the conditions for a finding a likelihood of confusion is not fulfilled, and the opposition must be rejected in this regard. However with respect to the similar goods and identical services the examination of the opposition will proceed.

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.

In the present case, the relevant goods and services are directed at the public at large but also at a specialised public like doctors, nurses etc. who are business customers with specific professional knowledge or expertise. The degree of attention is considered to be high, as the respective goods and services concern the medical field where usually a higher level of attention is displayed.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is Portugal.

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, composed of the word ‘Médis’. In Portugal, the relevant territory, ’Medis’ as such does not exist. But due to the letters ‘MEDI’ it contains, it will be understood by the public as a clear allusion to the nature or the field where the services, namely Health care services provider, integrated by doctors, hospitals and other medical care providers, will be provided, namely to ‘médico’ or ‘medicina’ in the Portuguese language (http://www.wordrefernce.com/enpt/medical). Therefore ‘Médis’ is to be considered as weak with respect to the concerned services in Class 42.

The contested sign is a figurative mark, composed of figurative and verbal elements. The figurative elements cover by far the larger part of the sign, and consist of a circle above a black square, which right bottom angle is formed by a curved line or letter S. The black line forming the square forms the capital joined letters M and S in the lower part of the square. This design - the square with the circle on top - might also be perceived as a stylized I. The word element ‘IMEDIS’ at the very bottom of the sign is written in small size and print and takes roughly only a seventh part of the sign’s total size. It is considered that ‘IMEDIS’ does not have any meaning in the Portuguese language. For part of the public who might discern the letters ‘MEDI’, it would be an allusion to ‘médico’ or ‘medicina’, in the Portuguese language and therefore would also have weak distinctive character for goods and services related to health care. As ‘IMEDIS’ also contains the letter ‘I’ at the beginning, and the figurative elements of the sign as such form also the letter ‘I’, it might also be understood as an allusion to the Internet and therefore create an allusion to goods or services provided via the Internet.

The figurative elements, namely the circle, the square and the bold joined stylized letters MS within the square of the contested trade mark overshadow the verbal element of the mark by virtue of their size and central position. The figurative elements and the stylized letters MS are the visually dominant elements of the contested trade mark.

Visually, the signs coincide in ‘medis’, whereby the ‘e’ in the contested sign does not have an accent. As explained above, ‘medi’ is weak with respect to the concerned goods and/or services. However, the signs differ in the figurative elements of the contested sign, namely the big circle and the square, and the stylized and bold letters ‘MS’ which form part of the square, which are not banal or commonplace but are visually highly stylized and outstanding, Those letters are together with the circle and the square the dominant elements of the contested sign.

Therefore, taking into account the entire visual impression of the signs, the Opposition Division concludes that the signs are similar to a low degree.

Aurally, the pronunciation of the signs coincides for part of the public who might pronounce ‘IMEDIS’ in the sound of the letters ‛M-DIS’, present identically in both signs. The pronunciation differs in the sound of the first letter ‛I’ of the contested mark and the accent on the ‘e’ in the earlier sign. Furthermore, some part of the public might only pronounce the letters ‘MS’ which due to their dominant character are likely to be seen first in contested sign and IMEDIS at the very bottom of the sign might be not pronounced at all.

Therefore, the signs are considered aurally similar to a low degree also due to the very different sound of the vocal ‘I’ at the beginning of the word element ‘IMEDIS’ and the weak distinctive character of MEDI.

Conceptually, neither ‘MÉDIS’ nor ‘IMEDIS’ exist as such in the official language spoken by the public in the relevant territory.

However, as explained above a part of the consumers may perceive an allusion to ‘medico, or ‘medicine’ due to the element ‘medi’, if they dissect these letters from ‘IMEDIS’ of the contested sign.

As stated above the element ‘medi’ has only a weak distinctive character with respect to the concerned goods and/or services. Therefore even for these consumers such a coincidence in a weak element making allusion to the medical character of the goods and/or services could lead only to a low conceptual similarity.

Since the contested sign also contains the letter ‘I’ at the beginning, and in total the sign might be perceived as a stylized I, it might also be understood as an allusion to the Internet and therefore create a different allusion, namely to goods or services provided via the Internet. For such a public, no conceptual similarity would exist.

For the public which will not perceive the abovementioned allusions, the contested sign has no meaning, and therefore a conceptual comparison is not possible.

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. 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 services in question, namely health care services in Class 42.

5. Global assessment, other arguments and conclusion

Considering all the above and the principle of imperfect recollection, even taking into account that some goods are similar and some services are identical, the Opposition Division concludes that there is no likelihood of confusion on the part of the public. It has to be noted that the earlier right, due to its clear allusion to the medical nature or the field where the services will be provided, is to be considered as weak with respect to the similar goods or identical services and therefore enjoys less protection.

With regard to the assessment of the dominant character of one or more given components of a complex trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the complex mark.

(Judgment of 23/10/2002, T-6/01, Matratzen, EU:T:2002:261, § 35, confirmed by order of 28/04/2004, C-3/03 P, Matratzen, EU:C:2004:233).

It must be noted, as a first point, that the representation of the square with the stylized letters MS and the circle above it has an important place within the mark applied for, in that it is positioned in the centre and covers more than two thirds of the area. Seen in total it gives the impression of the letter ‘I’. Next, the position of the square formed in part by the letters “MS” is also important within the mark, as these are portrayed in large-typeface, are very stylised upper case letters in black who are especially visible due to the fact that they are ‘framed’ by the square and at the same time form themselves part of the square. Those elements thus occupy the major portion of the mark applied for and are, therefore, striking in the overall impression of the mark. Lastly, as regards the word element ‘IMEDIS’, this word due to its size occupies only a secondary position in the overall composition of the sign and might be overlooked.

In the overall impression, it follows that the contested sign is composed of dominant figurative elements (circle, square with the stylized letters MS within a square forming altogether an ‘I’) and a relatively small word element, and only for this part of the public who may read this word element ‘IMEDIS’, a low similarity with respect to the earlier ‘Médis’ might exist. However, the additional and different elements are dominant and clearly perceivable for the public whose attention is high and sufficient to exclude any likelihood of confusion between the marks, bearing also in mind that the common elements are of weak distinctiveness for the concerned goods and services.

Therefore, the similarities are not sufficient to lead to a likelihood of confusion on the part of the public whose attention is high.

Concerning the other earlier rights invoked by the opponent, the outcome cannot be different. The other earlier rights invoked by the opponent are also not sufficiently similar to the contested mark in order to lead to a likelihood of confusion. This is because they contain further, additional figurative elements, like a square, bold lines looking like a curve, an image of a woman speaking into a telephone and additional words like mais, saude, etc which are not present in the contested trade mark and create an even more different overall impression compared to the contested sign. Moreover, they cover the same or a very different scope of goods and services. Therefore, the outcome cannot be different with respect to goods and services for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods and services.

Therefore, the opposition must be rejected.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as it is based on grounds under Article 8(1)(a) EUTMR because the signs are obviously not identical.

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

Adriana VAN ROODEN

Karin KLÜPFEL

Oana-Alina STURZA

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 shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.