The opponent is the holder of an earlier national registration of the verbal mark ‘HOLLESTA ХОЛЛЕСТА’, registered for goods in Class 5 – ‘pharmaceutical products’.
The opposition was filed against a misleadingly similar trademark applied for registration also for pharmaceutical products, namely the trademark “CHOLESTIN ХОЛЕСТИН” – verbal.
Goods and services of the conflicting trademarks
The Patent office accept:
The contested goods in class 5 are found by Opposition Division as being identical to those of the earlier trademark “Pharmaceuticals for the treatment of high cholesterol and the prevention of cardiovascular disease.” The contested goods in class 5 “analgesics; mineral food supplements; veterinary preparations; food additives; food supplements for non-medical purposes; food additives for veterinary use”. And services in class 35 “Retail and wholesale of pharmaceutical, veterinary, sanitary and medical preparations” are found as being similar to varying degrees to the goods of the earlier trademark which actual use has been proven.
Visually, the trademarks are similar in a high degree. The visual similarity of verbal marks is determined exclusively by the length of the characters and the words, the number of identical letters, syllables, word structure, etc. The earlier trademark consisted of 16 letters and the trademark applied for of 17, the trademarks are identical in a total of 12 of them: _HOL_EST_ and ХОЛ_ЕСТ, arranged in almost identical order. The words written in Cyrillic coincide completely in their first 3 letters – ” ХОЛ “. Indeed, the trademarks compared differ in the letter ‘C’ at the beginning of the mark applied for, the double ‘L’ (in Latin) and ‘L’ (in Cyrillic) in the middle of the earlier mark and in their endings respectively ‘IN’ – “A” (in Latin) and “IN” – “A” (in Cyrillic).
Aurally, there is a high degree of similarity between the trademarks. The trademarks coincide completely in the first 2 syllables and the consonant sounds “C” and “T” from the third syllable. The different sounds at the end of the two words are not enough to exclude the phonetic similarity between them due to the first CHOLEST sounds, although they reduce it to some extent.
Conceptually, neither of the signs has a meaning as a whole. Therefore, for consumers who will perceive the signs as fanciful, the meaning will not have an impact on the perception of the trademarks.
Relevant public — degree of attention
According to Court of Justice of the EU, 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.
On the base of the analisys carried out, from a factual and legal point of view it is necessary to conclude that the cumulative factual composition of Art. 12, para. 1, item 2 of the LMGI has been implemented in respect of the attacked goods and services, respectively the opposition, filed on this ground, is partially respected and the brand CHOLESTIN ХОЛЕСТИН is denied registration.