Confondibilità rigettata in appello EUIPO

marchio posteriore for classes 5, 35 and 44, namely “pharmaceuticals”, “medical preparations”, “food supplements” and “dietetic substances for babies (colori rivendicati)
marchio anteriore designating, inter alia, classes 5, 30 and 32, “ia” designating goods in class 10 and “ia” designating services in class 35.

Il 1st board of appeal EUIPO 31.10.2023, case R 1529/2023-1, INTERAPOTHEK, S.A.U. v. Q4MEDIA rigetta per assebnza di confondibilità ex art. 8.1.b EUTMR.


<<Overall assessment of the likelihood of confusion
36 The enhanced distinctiveness of the earlier mark was not claimed. Its inherent
distinctiveness results from the distinctive element ‘iaʼ in the central and initial position
but is weakened by the fact that its second word ‘BABYʼ is descriptive. The last word
‘interapothekʼ cannot be seen as a meaningful expression: as explained before, even if its
part ‘apothekʼ can be related to ‘Apothekeʼ (German word for ‘pharmacyʼ) the
combination with the prefix ‘interʼ lacks any tangible sense and is not descriptive. The
element may be seen as allusive but still distinctive. Overall, the inherent distinctiveness
of the earlier mark is under average.
37 The level of attention of both, the professional and the general public is high. The mark
has been found aurally similar to an average degree but conceptually and visually only to
a low degree. For the relevant goods and services the visual aspect is not less important
than the aural one, because the goods are bought on sight and the services are often
contracted on basis of written descriptions (offers, catalogues, Internet searches).
Therefore, taking into consideration the high level of attention of the relevant public and
the weakened distinctiveness of the earlier mark, the likelihood of confusion cannot be
confirmed even for identical goods. Even less so can this likelihood exist for goods that
are only similar.
38 The other earlier marks invoked in the opposition are even less similar to the EUTM
application as they overlap with the latter in only two letters, but differ in a multitude of
factors (beginning, length, font of the letter ‘aʼ, colours, initial letter/sound, number of
syllables). The likelihood of confusion does not exist on the basis of these marks either.>>