EUIPO decided to reject the opposition against all the goods and services of EUTM application No 17 998 543 ‘ETHA’ due to the lack of likelihood of confusion with an earlier trade mark. Owner of the contested trademark is Fast Track EOOD represented by IPConsulting.
The opposition was based on international trade mark registration designating the European Union No 996 576, ‘Thea’.
A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the trademarks in question, come from the same undertaking or, from economically linked undertakings.
Relevant public — degree of attention
In the present case, the goods and services are directed at the public at large and at professional consumers with specific professional knowledge or expertise in the medical, nutritional or health field.
In relation to the opponent’s goods, which belong to the category of pharmaceutical preparations, it is apparent from the case-law that, insofar as pharmaceutical preparations, whether or not issued on prescription, are concerned, the relevant public’s degree of attention is relatively high.
For the contested goods of the EUTM application in Class 5, it is expected that the degree of attention of the relevant public when purchasing these goods will be higher than average.
As regards the contested services in Class 44, the degree of attention will also be relatively high since medical services concern the state of health of the consumers.
Comparison of trademark signs
Earlier trade mark
The earlier mark is the word mark ‘Thea’. The term ‘Thea’ will be perceived by a part of the relevant public as a female given name. As ‘Thea’ has no connection with the relevant goods it is normally distinctive. The verbal element ‘ETHA’ of the EUTM application is an artificial term and has no meaning for the public. It has no connection with the relevant goods and services and is thus normally distinctive.
The terms ‘Thea’ and ‘ETHA’ share the same four letters, but, as the applicant has pointed out, solely the letter ‘a’ has the same position within the words, namely at the end of both terms. The beginnings of the signs are markedly different, which is an important differentiating factor.
Given that the signs at issue are both four letters long and thus still relatively short the relevant public will perceive the differences more easily. Therefore, from an overall visual perspective the conflicting signs are similar to a low degree.
The overall impression given by the signs is sufficiently different for consumers to safely distinguish between the signs. Consequently, there is no likelihood of confusion on the part of the public.
Therefore, the opposition against EUTM application No 17 998 543 ‘ETHA’ must be rejected.