Laboratorios Ern, SA v EUIPO; Ascendo Medienagentur AG
Date of decision: 13.12.17
- dietary supplements and dietetic preparations Dietary supplements and dietetic preparations; Hygienic preparations and articles; Medical and veterinary preparations and articles' (5)
- dietetic foods adapted for medical use in any shape or form (5) (Spanish mark)
The GC upheld the BoA's finding that there was no likelihood of confusion between the marks pursuant to Art 8(1)(b).
The BoA was correct to identify that the relevant Spanish professionals and general public had a high level of attention in relation to the goods for medical use which directly affected the health of the user, and as average or normal in relation to goods which did not have the same immediate impact on health.
The GC endorsed the BoA's conclusion that 'dietetic foods adapted for medical use in any shape or form' were different from 'hygienic preparations and articles' – similarity could not be established merely because both were sold in pharmacies and may be used to have an impact on health. However, 'dietetic foods adapted for medical use in any shape or form' were similar to 'dietary supplements and medical and veterinary preparations and articles' covered by the mark applied for.
'DYNAMICS', the dominant element of the mark applied for, differed from the earlier mark in the final letters 'CS' which afforded the marks low visual similarity. The BoA had erred in finding that the signs were not conceptually similar, as the relevant Spanish public may understand both marks to evoke the idea of 'dynamism'. Nevertheless, the BoA had concluded that the similarity of the mark was no more than low to average. The decision that there was no likelihood of confusion was upheld.