The opponent filed an opposition against some of the goods of European Union trade mark application for the word mark “HYALURONICA”.
The applicant is represented by the team of IP Consulting. The opposition was against all the goods in Classes 3 and 5. It was based on European Union trade mark registration for a figurative mark and the opponent invoked Article 8 (1)(b) EUTMR. The relevant territory is the European Union.
The goods on which the opposition is based are in Class 3. The contested goods are in Class 3 and 5. Therefore, SOME of the contested goods are identical or similar to the ones on which the opposition is based. The degree of attention for the goods in Class 3 is average. Оn the contrary, pharmaceuticals in Class 5, whether or not issued on prescription, the relevant public’s degree of attention is relatively high, understandably why.
The earlier mark is a figurative trade mark. It consists of a verbal element “PURE HYALURONIC”, the verbal element “N&B”, the verbal element “Natural is Better” and a small figurative device consisting of a leaf.
The contested sign “HYALURONICA” is an invented word. It does not exist as such in any language, although it evokes the idea of “HYALURONIC”. The public may consider that the relevant goods consist of cosmetic and pharmaceutical preparation that may contain “hyaluronic acid”. This element would be perceived by the relevant public throughout the relevant territory as a non-distinctive element. It is merely providing information about the characteristics of the goods concerned.
As is stated by the opponent, consumers usually focus on the beginning of a sign when they encounter a trade mark. But this principle is only one of the factors to be taken into account when assessing the similarity of the marks. Even so, the first element of the earlier mark is not the word “HYALURONIC”. It is “PURE”, so there is no coincidence.
Considering all above, the Opposition Division found there is no likelihood of confusion on the relevant public.
According to Article 109(1) EUTMR, the losing party in opposition proceeding must bear the fees and the costs incurred by the other party.
