Newsletter No. 42

DECISIONS OF THE ESTONIAN INDUSTRIAL PROPERTY BOARD OF APPEAL

I OPPOSITIONS

Decision No. 2081-o

Earlier trademark

NUTZ

Opposed trademark

Opposition to the granting of legal protection to trademark NUTS ON + device“ (accelerated procedure).

The opponent considers that the applicant’s trademark “NUTS ON + device“ is so similar that there is a likelihood of confusion with the opponent’s earlier marks “NUTZ”. In addition, the opponent finds that the protection of the applicant’s trademark seeks to cover goods and services identical and of the same type as the goods and services covered by the opponent’s trademarks.

The Patent Office forwarded the notice of filing of the opposition to the proprietor of the opposed trademark. The owner has not nominated their representative; thus, the Board applies the accelerated procedure. Under these circumstances, the Board will, in the final proceedings, grant the application without giving reasons for its decision, in so far as it is not manifestly unfounded.

The opposition was sustained.


Decision No. 1939-o

Earlier trademark

NEBICARD

Opposed trademark

NEOCARD

Opposition to registration of the trademark NEOCARD.

The opponent found that all the applicant’s goods are included in the opponent’s goods “pharmaceutical and veterinary supplies, except hormone preparations”. Further, the applicant’s goods “food supplements to support the health of the heart and blood vessels and nutritional supplements consisting of microelements” are identical to the opponent’s goods “medical dietary substances, children’s food”. According to the Board, the goods of the opposed trademark can be considered identical to the goods of the earlier trademark.

The elements “NE” and “CARD” of both marks are identical. In regard to the latter, one may make a connection with a card (e.g., “ID-card”) or – in the context of medicine and healthcare – with the words “cardiologist”, “electrocardiogram” etc., in which that element means heart.

In general, the consumer does not have the opportunity to compare products and brands marked with these two trademarks, and they must rely on the incomplete image left in their memory from a previous encounter with the respective trademark. Since there is a higher risk involved with the misuse of drugs as well as dietary substances, the variation in the middle of the word is especially negligible when assessing the visual difference of the trademarks.

The average consumer does not phonetically distinguish the marks by their individual different letters but proceeds from the pronunciation of the mark as a whole which, according to the Board, is rather similar in the case of the trademarks in question.

Given the identity of the goods in class 5 and the high degree of similarity of the trademarks, the Board estimates there is a likelihood of confusion and association by consumers, including the likelihood that the goods in question will be considered to originate from the same undertaking or related undertakings that have updated their trademark.

The opposition was sustained.


Decision No. 2088-o

Earlier trademarks

OPTIBET

Optibet – põnevate elamuste kodu

Opposed trademark

OLIMPBET

Opposition to the granting of legal protection to trademark OLIMPBET(accelerated procedure).

The opponent considers that the applicant’s trademark “OLIMPBET“ is so similar that there is a likelihood of confusion with the opponent’s earlier marks “OPTIBET “ and “Optibet – põnevate elamuste kodu” (“home of exciting experiences” in English). In addition, the opponent finds that there is no dispute as to the identity of the services, as all the trademarks in question cover the services of “gambling and their organisation”.

The Patent Office forwarded the notice of filing of the opposition to the proprietor of the opposed trademark. The owner has not nominated their representative; thus, the Board applies the accelerated procedure. Under these circumstances, the Board will, in the final proceedings, grant the application without giving reasons for its decision, in so far as it is not manifestly unfounded.

The opposition was sustained.


Decision No. 2038-o

Earlier trademark

INNOVET

Opposed trademark

UNOVET

Opposition to registration of the trademark UNOVET“.

The Board considers that, although there are certain visual and phonetic similarities between the marks “UNOVET” and “INNOVET”, the marks are sufficiently different, i.e. in general impression and taking into account their distinctive and dominant parts.

Although the consumer generally perceives the trademark as a whole and does not analyse its various details, the Board highlights that, according to the practice of the Court of Justice of the European Union, the consumer still divides into parts a mark where its compound words have meaning for the consumer.

Regardless of whether the consumer perceives the element “INNO” as a word referring to innovation and the element “UNO” as a word referring to the number “1”, or whether they perceive these elements as male names, the parts “INNO” and “UNO” are different from a semantic point of view, according to the Board.

The Board finds that the consumer perceives the element “VET” in the context of veterinary-related goods of class 5 as an abbreviation of the word “veterinarian”, i.e. a trademark related to the treatment of animals. To the extent that this part of the word is not in a dominant position or positioned in the first half of either of the trademarks under consideration, the Board considers that the element “VET” cannot be a factor causing confusion between the trademarks. The Board emphasizes that according to well-established case law, when assessing the similarity of trademarks, as a rule, it is the beginning part of a mark that holds greater weight.

Although in this case the comparable class 5 goods can be treated as identical, considering that the comparable trademarks of the opponent and the applicant are sufficiently different as a whole and especially considering the semantic difference of the trademarks, the Board does not find a likelihood of confusion, including association.

The opposition was dismissed.


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