The case
An opposition has been filed with ref. No 70111020/24.01.2019, according to the opponent there is visual, phonetic and semantic similarity between the earlier mark “Б. П. бирени’ and the trademark applied for, as the signs contain common distinctive and dominant elements, namely ‘пръчици’ and ‘бирени’.
The applicant of the opposed mark ИНТЕРМЕС Ltd. is represented by the team of IP Consulitng.
By Decision No RS-208/1/ dated 25.06.2021, the President of the Patent Office confirmed the Decision of the Opposition Board allowing the application for registration of trade mark No 151687.
The opponent instituted court proceedings before the Administrative Court Sofia – City, by which it seeks the revocation of the decision of the President of the Patent Office in relation to the application for trademark No. 151687 (the trademark at issue).
Goods and services of the conflicting trademarks
In assessing the similarity of the goods or services, all the relevant factors relating those goods or services themselves should be taken into account. These factors include, inter alia, their nature, their end users and their method of use and whether they are in competition with each other to are complementary. (Judgement of the Court, C-39/97, para. 23).
With regard to the comparison of the registered goods and services, the Court accepts the conclusion of the authority that the compared goods and services of Classes 29 and 40 of the present measure and the earlier marks – they are identical and similar, except for the applied service “canning of beverages” of the trademark at issue, for which the lack of similarity with the goods of the earlier marks was established.
Identity/similarity of the signs
Visual similarity: The marks differ in the number of words in their composition, the presence of a figurative element oval with the letter ‘И’ in the composition of the trade mark application at issue, the presence of clearly visible red and green colors in the figurative element, the presence of a clearly visible wide green band at the bottom of the rectangle.
Phonetic similarity: Regardless of the coincidence of the word ‘пръчици’ between the two marks, given the different placement of the word in the composition of the marks being compared and the presence of additional word elements which are pronounced differently, the marks are phonetically similar in an extremely low degree.
Semantic similarity: The trademarks are semantically identical or similar when they have the same or similar semantic content. In the present case, the earlier mark consists of the word ‘пръчици’, which has its own meaning of a small stick, and the word ‘Б’, which bears the distinctive character of the mark given its lack of any specific meaning, but is merely part of the name of the applicant legal entity. The application at issue consists of the descriptive elements ‘бирени пръчици’ and the distinctive element ‘I.’, which has no specific meaning and again coincides with the name of the applicant company. The verbal elements ‘пръчици’ and ‘бирени пръчици’ are purely descriptive elements and their similarity in meaning must be assessed in the context of the overall comparison of the marks for likelihood of confusion.
According to the Board of Appeal, the opposing marks are low in visual, aural and semantic terms due to the presence of the identical descriptive element ‘пръчици’ in their composition.
Degree of attention of relevant users
According to the case law the average consumer of the category of products concerned is deemed to be reasonably well-informed and reasonably observant and circumspect.
However, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question. (Judgment of the Court, Case C-210/96).
In the present case, the relevant range of consumers covers consumers in the Republic of Bulgaria. The general public of the relevant products is considered to be sufficiently informed and sufficiently observant and discerning.
Conclusion of the court
The Court affirmed the findings of the President of the Patent Office and dismissed the appeal, upholding his decision.
