Judgment of the General Court (Fifth Chamber) of 5 October 2020 –SBS Bilimsel Bio Çözümler v EUIPO – Laboratorios Ern (apiheal) (Case T-53/19)
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Not the law itself: Judgment
Address https://gelex.eu/eli/EU/judgment/62019TJ0053_INF@2020-10-05/en
1. EU trade markAppeals procedureAction before the EU judicatureJurisdiction of the General CourtAlteration of a decision of the OfficeAssessment in the light of the powers conferred on the Board of Appeal (Council Regulation No 207/2009, Arts 45 and 64(1)) (see paras 24, 25)
2. EU trade markDefinition and acquisition of the EU trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesLikelihood of confusion with the earlier markCriteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 31, 32, 111)
3. EU trade markDefinition and acquisition of the EU trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesLikelihood of confusion with the earlier markAssessment of the likelihood of confusionDetermination of the relevant publicAttention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 34)
4. EU trade markDefinition and acquisition of the EU trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesLikelihood of confusion with the earlier markFigurative mark apiheal and word mark APIRETAL (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 38, 55, 64, 70-73, 90, 98, 105, 109, 110, 115, 116, 120, 121)
5. EU trade markDefinition and acquisition of the EU trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesSimilarity between the goods or services in questionCriteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 42, 48, 53)
6. EU trade markDefinition and acquisition of the EU trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesSimilarity of the marks concernedCriteria for assessmentComposite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 74-76, 84)
7. EU trade markDefinition and acquisition of the EU trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesSimilarity of the marks concernedVisual similarity between a figurative mark and a word mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 83, 85, 86)
Re: Action brought against the decision of the Fourth Board of Appeal of EUIPO of 19 November 2018 (Case R 1725/2017-4), relating to opposition proceedings between Laboratorios Ern and SBS Bilimsel Bio Çözümler Sanayi Ve Ticaret. Operative part The Court:
1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 November 2018 (Case R 1725/2017-4) as regards the pharmaceutical and veterinary preparations for medical purposes; chemical preparations for medical and veterinary purposes, chemical reagents for pharmaceutical and veterinary purposes; dietary supplements for pharmaceutical and veterinary purposes; dietary supplements; nutritional supplements; medical preparations for slimming purposes; food for babies; herbs and herbal beverages adapted for medicinal purposes; herbal supplements; herbal creams for medical purposes; herbal creams for medical use; herbal teas for medicinal purposes; liquid herbal supplements; teeth filling material, dental impression material, dental adhesives and material for repairing teeth; sanitary preparations for medical use; hygienic pads; hygienic tampons; plasters; materials for dressings; diapers, including those made of paper and textiles; fungicides; disinfectants; antiseptics; detergents for medical purposes in Class 5 and the bee glue for human consumption, propolis, propolis for human consumption in Class 30;
2. Dismisses the action as to the remainder;
3. Orders EUIPO to bear its own costs and to pay those incurred by SBS Bilimsel Bio Çözümler Sanayi Ve Ticaret AŞ;
4. Orders Laboratorios Ern, SA to bear its own costs.