JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
13 June 2019
(*)
(EU trade mark — Opposition proceedings — Application for EU word mark SUIMOX — Earlier EU word mark ZYMOX — Obligation to state reasons — Notification of a decision of the Board of Appeal — Good faith and diligence on the part of the addressee — Article 94(1) of Regulation (EU) 2017/1001 — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation 2017/1001)
In Case T‑366/18,
Pet King Brands, Inc., established in Bartlett, Illinois (United States), represented by T. Schmidpeter and S. Bauer, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by L. Rampini and H. O’Neill, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Virbac SA, established in Carros (France), represented by D.-I. Tayer, lawyer,
ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 21 March 2018 (Case R 1835/2017-5), relating to opposition proceedings between Pet King Brands and
Virbac,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, L. Madise and R. da Silva Passos (Rapporteur), Judges,
Registrar: E. Hendrix, Administrator,
having regard to the application lodged at the Court Registry on 8 June 2018,
having regard to the response of EUIPO lodged at the Court Registry on 17 September 2018,
having regard to the response of the intervener lodged at the Court Registry on 14 September 2018,
Having regard to the letter from the intervener lodged at the Court Registry on 4 March 2019, stating that it would not attend the hearing,
further to the hearing on 7 March 2019,
gives the following
Judgment
Background to the dispute
1        On 26 January 2016, the intervener, Virbac SA, filed an application for registration of a European Union trade mark with the European Union Intellectual Property Office (EUIPO), pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154,
p. 1)).
2        The mark for which registration was sought is the word sign SUIMOX.
3        The goods in respect of which registration was sought are in Class 5 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Veterinary preparations; veterinary preparations and animal health care products, including antibiotics for animals; nutritional supplements for veterinary use; sanitary preparations for veterinary use; dietetic substances for veterinary purposes; disinfectants for veterinary use; preparations for killing weeds and destroying vermin; vaccines for veterinary use’.
4        The EU
trade mark application was published in the Community Trade Marks Bulletin No 2016/033 of 18 February 2016.
5        On 9 May 2016, the applicant, Pet King Brands, Inc., filed a notice of opposition to registration of the mark applied for in respect of the goods listed in paragraph 3 above, pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001).
6        The opposition was based on the earlier EU word mark ZYMOX, registered on 18 July 2005 under number 871 232, for goods in Class 5 corresponding to the following description: ‘Medicated ear drops for domestic animals’.
7        The grounds of opposition were those laid down in Article 8(l)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).
8        On 21 October 2016, the list of goods designated in the trade mark application mentioned in paragraphs 1 to 4 above was limited to the following products: ‘Veterinary preparations; veterinary preparations and animal health care products, including antibiotics for animals; nutritional supplements for veterinary use; dietetic substances for veterinary purposes; preparations for killing weeds and destroying vermin; vaccines for veterinary use; the aforesaid goods not including ear drops for animals’.
9        On 30 June 2017, the Opposition Division dismissed the opposition in its entirety on the grounds that there was no likelihood of confusion.
10      On 21 August 2017, the applicant filed an appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the Opposition Division’s decision.
11      By decision of 21 March 2018 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal. First, it held that the relevant territory was the territory of the European Union. Second, it considered that, for the assessment of the likelihood of confusion, the relevant public was composed of both specialists and the general public with no specific medical, veterinary or pharmaceutical knowledge. Third, the Board of Appeal stated that veterinary products sold without prescription, as in the present case, benefit from a higher degree of attentiveness on the part of consumers, since those goods affect the health of their animals. It concluded that the degree of attentiveness on the part of the relevant public is therefore higher than average in relation to the goods in Class 5. Fourth, the Board of Appeal compared the goods covered by the earlier mark and by the mark applied for. It held, on the one hand, that the goods corresponding to ‘vaccines for veterinary use’, ‘nutritional supplements for veterinary use; dietetic substances for veterinary purposes’ and ‘preparations for destroying vermin; the aforesaid goods not including ear drops for animals’ are similar to an average degree to the goods designated by the earlier mark. On the other hand, the Board of Appeal considered that the goods corresponding to
‘preparations for killing weeds’ are different from the goods designated by the earlier mark. Fifth, the Board of Appeal compared the conflicting signs on the basis of the perception of the relevant public in the territory of the European Union. In that regard, it held that the conflicting signs were similar to a low degree visually and aurally, that they could not be compared conceptually and that, overall, they presented differences which were clearly perceptible and were therefore similar to a low degree visually and aurally, even though they are used for very similar goods. Sixth, in its global assessment of the likelihood of confusion between the conflicting signs, the Board of Appeal held that there was an overall low degree of similarity between those signs in the mind of the relevant public due to the presence of the common suffix ‘mox’, and the high degree of attentiveness displayed by that public in relation
to the goods in question, namely goods having an impact on animal health and, therefore, concluded that it was unlikely that consumers in the European Union would believe that the goods covered by the marks at issue come from the same undertaking or from undertakings that are economically linked.
Forms of order sought
12      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs.
13      EUIPO and the intervener contend that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
Law
14      In support of its action, the applicant relies on two pleas in law:
(i) infringement of essential procedural requirements and the obligation to state reasons in
Article 94(1) of Regulation 2017/1001 and (ii) infringement of Article 8(1)(b) thereof.
The first plea in law
15      The first plea in law is divided into three parts: (i) the contested decision did not contain a definition of ‘vermin’ and, therefore lacked a statement of reasons in that regard; (ii) the Board of Appeal failed to state reasons for the finding in the contested decision that
‘preparations for killing weeds’ are different from ‘medicated ear drops for domestic animals’; and (iii)
the Board of Appeal failed to state reasons in the contested decision for its refusal of the applicant’s request for a hearing.
16      It is appropriate to deal with all the three parts of the first plea in law together as they all concern the content of the version of the contested decision sent to the applicant which, the applicant claims, is incomplete.
17      As a preliminary point, regarding the obligation to state reasons for the contested decision, it must be held that, in the originating application, the applicant claims that that reasoning is insufficient because certain parts of the decision are incomplete or
contain
blank spaces. In that connection, according to the case-law, while it is true that the parties must show good faith and notify EUIPO in good time of any omissions or errors that they have detected in the documents sent to them, the fact remains that it is for EUIPO to prove that it satisfies its obligations (see, to that effect, judgment of 16 March 2017, Capella v EUIPO — Abus (APUS), T‑473/15, not published, EU:T:2017:174, paragraph 50 and the case-law cited).
18      In the present case, as a first step it is necessary to address the issue whether EUIPO has satisfied its obligations, specifically as regards the notification of the contested decision to the applicant. If this question is answered in the affirmative, as a second step, it is necessary to determine whether the Board of Appeal has infringed essential procedural requirements and Article 94(1) of Regulation 2017/1001, as the applicant claims. In the course of that examination, it must be ascertained whether the applicant was required to show diligence and good faith and, in the light of the case-law cited in paragraph 17 above, to notify EUIPO of any omissions in the contested decision.
19      As to the first question mentioned in paragraph 18 above, the case-law draws a distinction between, on one hand, the transmission of a document to the addressee, which is required for due notification, and, on the other hand,
actual knowledge of that document, which is not required for notification to be regarded as a due notification. According to that case-law, the validity of a notification to the addressee is in no way conditional on its having been actually brought to the notice of the person competent to deal with it under the internal rules of the entity addressed,
due notification of a decision being effected once it has been communicated to the addressee and the addressee is in a position to take cognisance of it. Thus, in order to assess the validity of a notification, only its external aspect is taken into consideration, that is to say, due transmission to the addressee, rather than its internal aspect, which concerns the internal functioning of the entity addressed (see judgment of 4 May 2017, Kasztantowicz v EUIPO — Gbb Group (GEOTEK), T‑97/16, not published, EU:T:2017:298, paragraph 39 and the case-law cited).
20      According to the case-law, with regard to the external aspect of the notification by fax, as in the present case, the notifier must establish that he has created the conditions for the fax to be transmitted to reach the addressee. He must therefore prove that not only has the fax been sent, but that it was effectively received, so that the addressee
was in a position to take cognisance of the notification. However,
the notifier is not required to establish that the addressee has actually taken cognisance of the notification (which corresponds with the internal aspect of the notification).
As a general rule, there is also no obligation on the
notifier or even the possibility to interfere in the internal functioning of the entity addressed in order to ensure it has actually taken cognisance of the notification
(see judgment of 4 May 2017, GEOTEK, T‑97/16, not published, EU:T:2017:298, paragraph 41 and the case-law cited).
21      Furthermore, it should be recalled that the contested decision is part of the case file before the Board of Appeal of EUIPO, transmitted to the General Court pursuant to Article 178(5) of the Rules of Procedure of the General Court, which is made available for the parties to consult.
22      In the present case, it is clear from the file that the contested decision was sent to the applicant on 9 April 2018, which, moreover, it does not deny, and which is also apparent from EUIPO’s response of 31 January 2019 to a question from the General Court for written answer prior to the hearing. Neither does the applicant challenge the means used by the Board of Appeal for the notification of the contested decision,
that is transmission by fax.
23      It follows that the contested decision was duly notified to the applicant.
24      As to the second question, mentioned in paragraph 18 above, concerning the alleged infringement of essential procedural requirements and
Article 94(1) of Regulation 2017/1001, and the applicant’s duty of diligence, it must be held, as a preliminary point, that the applicant bases its arguments on a version of the contested decision annexed to the originating application as Annex P.4, in which the last three lines of paragraph 29, paragraphs 30 and 31, the first six lines of paragraph 32 and paragraphs 52 to 59 are missing.
25      In that version of the contested decision, first, the definition of ‘vermin’ has been omitted, second, that version does not contain any comparison between ‘preparations for killing weeds’ and ‘medicated ear drops for domestic animals’ and, third, it also omits the grounds on which the Board of Appeal refused the applicant’s request for a
hearing.
26      In that connection, it must be observed, first, that in the version of the contested decision annexed to the originating application as Annex P.4, on page 9, paragraph 29 ends as follows: ‘A relevant definition of “vermin”, provided by the’. Second, those words are not even followed by a full stop. Third, page 10 of that version of the contested decision begins with the following words: ‘the Board endorses the Opposition Division’s finding in the dissimilarity of the goods at issue, as they are also usually provided by the same companies’. Fourth, those words are followed by paragraph 33 of the contested decision. Fifth, in that version of the contested decision, page 13 only contains, at the top, the title ‘On the opponent’s request for an oral hearing’ followed by a blank page.
27      Therefore, that version of the contested decision has obvious omissions. First of all, paragraph 29 ends before the middle of page 9 with an incomplete sentence, which is not even followed by a full stop, and the text which follows on page 10 is clearly not the continuation of that incomplete sentence. Further, the paragraph on page 10 which follows paragraph 29 is not paragraph 30, as is normal in an ascending numerical order, but paragraph 33. Lastly, page 13 contains only the heading ‘On the opponent’s request for an oral hearing’ and the rest is a blank page. Furthermore, with regard to the latter point, as the intervener rightly argues, it is surprising that a decision by the Board of Appeal omits the continuation of a paragraph the title of which is clearly marked at the top of the page. Moreover, as the intervener rightly argues, the normal structure of such a decision includes a costs paragraph at the end of the document, the absence of which should also have alerted the applicant to the existence of possible errors.
28      Therefore, it must be held that, even if the version of the contested decision containing the clear omissions mentioned in paragraphs 26 and 27 above is the version
notified to the applicant, it was for the latter, in such a situation, to inform the Board of Appeal as soon as it received that version of the contested decision.
29      Since the Board of Appeal
duly notified the contested decision to the applicant, as held in paragraph 23 above, and as the applicant was in a position to take cognisance of that decision, the Board of Appeal has fulfilled its obligations in the light of the case-law mentioned in paragraphs 17, 19 and 20 above and, in particular, the duty of notification laid down in Article 98(1) of Regulation 2017/1001 and Article 56(1) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1).
30      However, since the applicant failed to inform the Board of Appeal of the clear omissions mentioned in paragraphs 26 and 27 above, in the version of the contested decision it claims to have received, it has not shown evidence of good faith and diligence. After receiving notification of such a version of the contested decision, as it claims to have done, it should, in the light of the case-law cited in paragraph 17 above, have informed the Board of Appeal of those clear omissions as soon as it received that version of the contested decision. That would have enabled the Board of Appeal to check the version of the contested decision notified to the applicant and to send it a corrected version.
31      It follows, particularly in the light of the case-law cited in paragraph 17 above, that the applicant wrongly relies on that version of the contested decision, in support of its arguments that the Board of Appeal failed to provide a definition of ‘vermin’ or to state reasons regarding the comparison of ‘preparations for killing weeds’ and ‘medicated ear drops for domestic animals’, or any grounds for refusing the applicant’s request for a
hearing.
32      Therefore, it is appropriate to examine the allegation that the reasoning in the contested decision is insufficient, on the basis of the version of that contested decision in the case
file before the Board of Appeal.
33      In that connection, the applicant observes, in the first place, that in its statement of grounds for the appeal before the Board of Appeal, it did not agree with the Opposition Division’s findings that
‘medicated ear drops for domestic animals’ are not highly similar, but only similar, to ‘preparations for killing vermin [at issue]’. It points out that, in the contested decision, the Board of Appeal states that the relevant definition of ‘vermin’ given supports the Opposition Division’s findings regarding the difference between the relevant goods. However, according to the applicant, the Board of Appeal did not give a definition of ‘vermin’ in the contested decision.
34      However, as EUIPO and the intervener rightly observe, in paragraph 29 of the contested decision, the Board of Appeal based its decision on the definition of that word in another dictionary, namely the
Oxford Dictionaries which, according to the Board of Appeal, is more reliable than Wikipedia. According to the definition in that other dictionary, given by the Board of Appeal, ‘vermin’ are ‘wild animals that are believed to be harmful to crops, farm animals, or game, or which carry disease, e.g. rodents'. The Board of Appeal also stated in paragraph 29 of the contested decision that it thereby applied the case-law of the EU Courts, in so far as the information given in Wikipedia may be uncertain, since it can be changed at any time and, in some cases, by any visitor, even anonymously.
35      Therefore, it must be held that the Board of Appeal gave a definition of ‘vermin’ in the contested decision.
36      In the second place, the applicant claims in its statement of grounds for the appeal before the Board of Appeal that it challenged the Opposition Division’s findings that ‘preparations for killing weeds’ were regarded as different from ‘medicated ear drops for domestic animals’. The applicant claims that, in the contested decision, the Board of Appeal confirmed the Opposition Division’s findings on the similarity of the goods concerned without giving any reasoning in that regard.
37      However, as EUIPO and the intervener rightly argue, the Board of Appeal took the applicant’s arguments into account and also stated reasons for its decision in that regard. In paragraph 32 of the contested decision, the Board of Appeal found that the goods concerned did not have the same purpose: ‘preparations for killing weeds’ are intended for agricultural use, while ‘medicated ear drops for domestic animals’ are intended for animal health. Furthermore, the Board of Appeal also held that those goods were not offered in the same aisles in shops. EUIPO therefore rightly states that the Board of Appeal confirmed the Opposition Division’s findings, since it took the view that the goods concerned were different and that, accordingly, it cannot be held that the contested decision does not contain any reasoning on the findings relating to the comparison of the goods concerned.
38      Therefore, it must be held that the contested decision contains reasoning with regard to the comparison of the goods concerned, namely ‘preparations for killing weeds’ and ‘medicated ear drops for domestic animals’.
39      In the third place, the applicant submits that, in its statement of grounds for the appeal before the Board of Appeal, it had filed a request for a
hearing, in order to develop its arguments relating, in particular, to the very similar pronunciation of the conflicting marks. It argues that that request was dismissed
without any reason being given for such refusal, since, the applicant claims that the contested decision contains only the heading
‘On the opponent’s request for an oral hearing’, followed by a blank page.
40      EUIPO rightly responds, that it is clear from paragraphs 52 to 55 of the contested decision that the Board of Appeal duly took into account the applicant’s request, but, that in the exercise of its discretion
considered that it had all the information necessary to give a ruling and that any further arguments or evidence could have been presented in writing. As EUIPO states, the Board of Appeal also held, in paragraph 54 of the contested decision, that a hearing would unduly increase the duration and cost of the proceedings.
41      It is clear from the foregoing that the applicant is wrong to argue that the Board of Appeal infringed essential procedural requirements and Article 94(1) of Regulation 2017/1001.
42      Furthermore, as mentioned in paragraph 24 above, with regard to the arguments put forward by the applicant set out in
paragraphs 33, 36 and 39 above, the applicant bases its arguments on a version of the contested decision, annexed to the originating application as Annex P.4, in which the last three lines of paragraph 29, paragraphs 30 and 31, the first six lines of paragraph 32 and paragraphs 52 to 59 are missing.
43      It follows from the foregoing that the three parts of the first plea in law must be dismissed as unfounded and that, therefore, that plea in law must be dismissed in its entirety.
The second plea in law
44      The second plea in law concerns the infringement of Article 8(1)(b) of Regulation 2017/1001 and is divided into three parts: (i) the comparison of the goods, (ii) the comparison of the signs and, (iii) the overall assessment.
45      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for cannot be registered if because of its identity with or similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
46      According to established case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or from economically
linked undertakings constitutes a likelihood of confusion.
The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
47      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar.
Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14,
paragraph 42
and the case-law cited).
48      Where the protection of the earlier trade mark extends to the whole of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods in question in that territory. However, it must be recalled that
for a European Union trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation
2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
49      It is in the light of the above considerations that the second plea in law must be examined.
The relevant public and territory
50      In paragraphs 16 to 20 of the contested decision, the Board of Appeal defined the relevant public as consisting of both specialists and the general public with no specific medical, veterinary or pharmaceutical knowledge, and held that the goods at issue in the present case, whether or not they are issued on prescription, receive a higher than average degree of attentiveness on the part of the relevant public, since those goods affect animal health.
51      Furthermore, the Board of Appeal considered that the relevant territory was the territory of the European Union.
52      In the light of the evidence in the file, the contested decision must be confirmed in relation to those points, which, moreover, have not been disputed by the applicant.
Comparison of the goods
53      According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary.
Other factors may also be taken into account such as, for example, the distribution channels of the goods concerned
(see judgment of 11 July 2007, El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).
54      It is settled case-law that, when the goods covered by the earlier mark include the goods covered by the trade mark application, those goods are considered to be identical (see judgment of 24 November 2005, Sadas v OHIM –LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 34 and the case-law cited). That case-law applies mutatis mutandis where the goods
covered by the trade mark application include the goods covered by the earlier mark, since the inversion of the terms does not affect the requirement that the subject matter must be the same
(judgment of 8 March 2013, Mayer Naman v OHIM — Daniel e Mayer (David Mayer), T‑498/10, not published, EU:T:2013:117, paragraph 63).
55      As a preliminary point, it must be held that the applicant does not challenge the Board of Appeal’s finding that the goods corresponding to ‘veterinary preparations; veterinary preparations and animal health care products, including antibiotics for animals; the aforesaid goods not including ear drops for animals’ are highly similar to the goods designated by the earlier mark.
56      Having regard to the information in the file, the contested decision must be upheld in that regard.
57      In the first place, the applicant submits that ‘medicated ear drops for domestic animals’ are preparations containing active medical ingredients for the treatment of diseases, disorders or illnesses, such as inflammation, which are dripped into the ear of an animal, and that ‘vaccines for veterinary use’ are medical preparations administered to an animal in a particular way or are introduced into the body in order to produce their effects, that is to fight diseases or illnesses and to have a lasting positive effect on their general health. The applicant submits that, contrary to the Board of Appeal’s findings in the contested decision, ‘medicated ear drops for domestic animals’ and the ‘vaccines for veterinary use’ at issue therefore have the same nature. Furthermore, the applicant submits that those goods share the same producer, the same end users and the same distribution channels, as the Board of Appeal found. Therefore, according to the applicant, the degree of similarity between the ‘medicated ear drops for domestic animals’ and ‘vaccines for veterinary use’ should not be regarded as average, as the Board of Appeal concluded, but as high.
58      EUIPO and the intervener challenge the applicant’s arguments. EUIPO argues that, as stated in the contested decision, the goods at issue have the same producer, the same end users and the same distribution channels, but differ as to their nature. While it is true that the goods covered by the earlier mark and those covered by the mark applied for are medical preparations for animal health, the fact remains that, in the light of the case-law set out in paragraph 53 above, common general characteristics are not sufficient to support a finding that the goods in question have a high degree of similarity.
59      EUIPO rightly submits that those goods have different specific purposes, namely, on the one hand, as regards the goods covered by the earlier mark, to clean parts of the animal’s body in order to prevent bacterial and general infections and, on the other hand, as regards the goods covered by the mark applied for, to act on the animal’s immune system by injecting specific viruses. Also, EUIPO rightly points out the differences with regard to the composition of the goods at issue, containing, for example, antibiotics in the case of ear drops and viruses in the case of vaccines.
60      Therefore, the Board of Appeal rightly held that the degree of similarity between the ‘medicated ear drops for domestic animals’ and ‘vaccines for veterinary use’ should be regarded as average.
61      In the second place, the applicant submits that ‘medicated ear drops for domestic animals' and ‘nutritional supplements for veterinary use; dietetic substances for veterinary purposes’ have the same nature, producer, end users and distribution channels. Therefore, those goods have a high degree of similarity and the Board of Appeal was wrong to find that they were similar to an average degree. First, the applicant argues, all those goods typically comprise chemical compounds, namely vitamins and metallic and non-metallic salts. Second, the applicant claims that the Board of Appeal failed to take into account all the relevant factors for determining the similarity of the goods. It points out that ‘medicated ear drops for domestic animals' are mainly used for the treatment of ear infections in animals, including those caused by allergies, and that, in order to fully treat an animal which has infected ears as the result of food allergies, it may be advisable to change its diet using special nutritional or dietary supplements. According to the applicant, the goods at issue may therefore be complementary in the treatment of animal diseases, such as infected ears.
62      EUIPO and the intervener challenge the applicant’s arguments.
63      According to settled case-law, complementary goods or services are those which are closely connected in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the same undertaking is responsible for manufacturing those goods or for providing those services. By definition, goods intended for different publics cannot be complementary (see judgment of 22 January 2009, easyHotel, T‑316/07, EU:T:2009:14, paragraphs 57 and 58 and the case-law cited).
64      In the present case, EUIPO rightly argues, first, that the abovementioned goods have the same producer, end users, distribution channels and constituents, but differ as regards their purpose, method of use and their nature, as the goods designated by the mark applied for are mainly administered to animals by ingestion, which is not the case with ‘medicated ear drops for domestic animals’ which are intended to treat ear infections in animals.
65      Second, the applicant submits that ear infections in animals may be caused by mites, yeast, bacteria or allergies, in particular food allergies. According to the applicant, in order to fully treat an animal which has infected ears as a result of food allergies, it may be advisable to change the diet by using special nutritional or dietary supplements. Therefore, the applicant submits that the goods at issue may complement each other for the treatment of animal diseases, such as infected ears.
66      Even if that the applicant’s assertions are correct, that is only one example of a link with the goods at issue, namely, the treatment of ear infections in domestic animals caused by food allergies. However, the applicant does not claim that such a link also exists in the other examples it mentions, namely ear infections in domestic animals caused by mites, yeast, bacteria or non-food allergies.
67      Therefore, it must be held that the existence of a link between the goods at issue in just one case among those mentioned by the applicant cannot, in any event, justify a finding that, in the light of the case-law set out in paragraph 63 above, a use of
the goods at issue is indispensable or important for the use of the other goods. Furthermore, it must be held that even in the one case mentioned by the applicant, the existence of such a link is uncertain, as the applicant itself admits in paragraphs 30 and 31 of the originating application, stating that such complementary use ‘may be advisable’ and that the goods at issue ‘can complement each other’, which, in any event, is not sufficient to satisfy the test applied in the case-law mentioned above in order for the goods concerned to be regarded as complementary, namely that the use of the goods at issue is
indispensable or important for the use of the other goods.
68      Therefore, the applicant has failed to establish the existence of such complementarity in the present case.
69      Thus, as the Board of Appeal rightly held, the degree of similarity between ‘medicated ear drops for domestic animals’ and ‘nutritional supplements for veterinary use; dietetic substances for veterinary purposes’ must be regarded as average.
70      Third, the applicant challenges the findings of the Board of Appeal concerning the difference between ‘medicated ear drops for domestic animals’ and ‘preparations for destroying vermin; the aforesaid goods not including ear drops for animals’. On one hand, according to the applicant, as it also argued in relation to the first plea in law, in the contested decision, the Board of Appeal failed to define ‘vermin’ and, therefore, the applicant does not understand to which definition the Board of Appeal refers. On the other hand, in that context, the applicant submits that ‘vermin’ is in any event a word commonly used in the English language, which is known to the English-speaking population and therefore does not require any explanation, which includes, for example, mites, which are removed from the ears of domestic animals with medicated ear drops.
The applicant submits that the goods in question coincide as to their nature, purpose, manufacturers, distribution channels and end users and, therefore, are very similar.
71      EUIPO and the intervener challenge the applicant’s submissions, according to which, in particular, the adoption of a definition taken from the Oxford Dictionaries, the word ‘vermin’, referred to by the goods designated in the application for registration, does not include the animals referred to by the goods covered by the earlier mark, such as mites.
72      On one hand, as held in paragraph 35 above with respect to the analysis of the first plea in law, the argument that the Board of Appeal failed to provide any definition of ‘vermin’ in the contested decision must be dismissed.
73      On the other hand, as regards the definition of ‘vermin’, mentioned by the Board of Appeal in paragraph 29 of the contested decision taken from the Oxford Dictionaries, it must be held that such a definition is incomplete. As the General Court ascertained from the website mentioned by the Board of Appeal in paragraph 29 of the contested decision, while it is true that that word does have the meaning mentioned by the Board of Appeal, that is ‘wild animals that are believed to be harmful to crops, farm animals, or game, or which carry disease, e.g. rodents', the fact remains that, according to that definition in the Oxford Dictionaries, vermin can also mean ‘parasitic worms or insects’.
74      It follows, that, on one hand,
the goods referred to by the mark applied for aim to destroy ‘vermin’, which includes ‘parasitic worms or insects’ and, on the other hand, the goods covered by the earlier mark are also designed to destroy certain ‘parasitic worms or insects’, for example, mites, which are removed from the ears of domestic animals with medicated ear drops which are the goods covered by the earlier mark.
75      Therefore, even if the goods designated in the application for registration have a much wider scope of application than those referred to by the earlier mark, which cover products intended to destroy vermin other than those referred to by the goods covered by the earlier mark, the fact remains that some of the goods covered by the two marks have the same purpose, namely goods designed to destroy parasitic worms or insects, including those in domestic animals. Furthermore, while it is true that the application for registration expressly excludes ear drops for animals, that is of little importance. There is nothing to prevent a finding of a similarity, even a high degree of similarity,
of the same goods covered by the marks at issue.
76      It follows that the goods corresponding to ‘medicated ear drops for domestic animals’ and ‘preparations for destroying vermin; the aforesaid goods not including ear drops for animals’ must be regarded as having a high degree of similarity as the applicant rightly submits.
77      The Board of Appeal therefore committed an error of assessment by concluding, in paragraph 30 of the contested decision, that it was not possible to establish a greater than average degree of similarity between the goods at issue.
78      Fourth, the applicant challenges the Board of Appeal’s findings concerning the difference between ‘medicated ear drops for domestic animals’ and ‘preparations for killing weeds’,
taking
the view that the Board of Appeal failed to take into consideration its arguments with regard to the similarity of those goods. The applicant claims, first, that those goods share the same distribution channels and are generally supplied by the same companies and, second, that weedkillers must be compatible with domestic and wild animals. It concludes that the goods at issue should therefore be regarded as similar.
79      EUIPO and the intervener challenge the applicant’s arguments.
80      First, as it was held in paragraph 38 above in the examination of the first plea in law, the argument that,
in the contested decision, the Board of Appeal failed to take into account the applicant’s arguments relating to the similarity between ‘medicated ear drops for domestic animals’ and ‘preparations for killing weeds’ must be dismissed.
81      Second, the Board of Appeal correctly concluded, in paragraph 32 of the contested decision, that the goods at issue did not have the same purpose: ‘preparations for killing weeds’ are intended for agricultural use, as the applicant also admits with regard to the example it mentions in paragraph 39 of the originating application, whereas ‘medicated ear drops for domestic animals’ are intended for animal health. In that regard, and in the light of that difference in the purpose of the two kinds of goods, the mere fact that products for killing weeds must be compatible with animals does not mean that therefore the goods are similar.
82      Furthermore, the Board of Appeal also rightly states that those goods are not for sale on the same shelves in shops, which, moreover, is not disputed by the applicant, who simply states that those goods are for sale on shelves close to one another.
83      Therefore, the Board of Appeal rightly held that the goods corresponding to ‘medicated ear drops for domestic animals’ and ‘preparations for killing weeds’ were different.
Comparison of the signs
84      According to settled case-law, the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs in question, must be based on the overall impression given by the signs, bearing in mind, inter alia, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion.
In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
–       The distinctive and dominant elements of the mark applied for
85      First of all, in the applicant’s view, the Board of Appeal ignored its arguments with regard to the meaning of the final element ‘mox’ in the two conflicting signs. First, companies operating in the pharmaceutical sector often use a common suffix, such as ‘mox’ in the present case, to designate the common origin of their goods in order to draw the consumer’s attention to their origin. In the applicant’s view, experts and also end users do not focus their attention on the beginning of the mark, which is usually and in practice more noticed, but will also pay special attention to other elements or word endings. Second, the applicant states that, statistically, the letter ‘x’ appears less often than ‘z’ or ‘y’. It concludes that the identical suffixes ‘mox’ in the marks concerned will attract more attention than the initial elements, the suffix ‘mox’ being distinctive and dominant.
86      EUIPO and the intervener challenge the applicant’s arguments.
87      In that regard, as EUIPO
rightly observed, the first component of word marks may be more likely to catch the consumer’s attention than the components which follow (see, to that effect, judgment of 23 September 2009, GlaxoSmithkline and Others v OHIM — Serono Genetics Institute (FAMOXIN), T‑493/07, T‑26/08 and T‑27/08, not published, EU:T:2009:355, paragraph 68 and the case-law cited).
88      In that regard, it must be held that, while the principle set out in the case-law mentioned in paragraph 84 above, according to which the average consumer usually perceives a mark as a whole and does not examine its various details, remains valid, the applicant is wrong to argue that in the present case the Board of Appeal ignored its arguments on the meaning of the final element ‘mox’.
89      On one hand, in that regard, the applicant cites the judgment of 20 November 2007, Castellani v OHIM — Markant Handels und Service (CASTELLANI) (T‑149/06,
EU:T:2007:350). However, it must be held, as the intervener rightly points out, that that case concerned a specific category of goods in the wine sector, in respect of which the initial component ‘château’ is very common. Therefore, that case-law is insufficient to call into question the fact that the case-law mentioned in paragraph 87 above is relevant in the present case.
90      On the other hand, the applicant claims that, in the pharmaceutical products sector, both experts and end users also pay particular attention to other elements or to the endings of words and do not focus their attention on the beginning of a mark.
91      However, first, as EUIPO rightly argues, there is no evidence that consumers associate this type of suffix with the name of a specific undertaking. Even assuming that the applicant’s arguments are correct and there is also a likelihood of confusion between the marks simply because the use of such a suffix may indicate the common origin of the goods concerned, it must be held that the applicant does not claim that the suffix ‘mox’ at issue in the present case, is used in other marks belonging to it and, therefore, that that suffix indicates that it is one of its products. Second, as regards the applicant’s argument that, statistically, the letter ‘x’ appears less frequently than ‘z’ or ‘y’, particularly in German, English and French, which means that the attention of the relevant public is also focused on the suffix ‘mox’, it suffices to state, as EUIPO rightly argues, that not only is the letter ‘x’ part of the alphabet of those languages, but that its use is not unusual for the relevant consumers, as is illustrated by the examples provided by the applicant in paragraph 46 of the originating application.
92      Therefore, the applicant’s arguments set out in paragraph 85 above must be dismissed.
–       Visual comparison
93      The applicant claims that, visually, the conflicting signs both contain the component ‘mox’, which is the distinctive and dominant element. Furthermore, it notes that the two signs have a similar number of letters (five and six respectively) and, also that, in its view, there are certain similarities between the initial letters ‘z’ and ‘s’, since the letter ‘z’, in particular in handwritten form, can be seen as a vertically mirrored ‘s’ and vice versa. It concludes that, taking into account the significance of the element ‘mox’, the conflicting signs must be considered to have a high level of visual similarity.
94      EUIPO and the intervener challenge the applicant’s arguments.
95      In that regard, it must be held, first, as stated in paragraph 92 above, that the applicant’s arguments that the element ‘mox’ in the conflicting signs is a distinctive and dominant element, has been dismissed.
96      Second, the applicant’s argument that the two signs have a similar number of letters (five and six respectively), which contributes to a strong visual similarity between them cannot be accepted. The similar, if not identical, number of letters which make up the two word marks does not have, in itself, any particular importance for the public targeted by those marks. Since the alphabet is made up of a limited number of letters, which, moreover, are not all used with the same frequency, it is inevitable that many words will have the same number of letters and even share some of them, but they cannot, for that reason alone, be regarded as visually similar.
In addition, the public is not, in general, aware of the exact number of letters in a word mark and, consequently, will not notice, in the majority of cases, that two conflicting marks have the same or similar number of letters (see, to that effect, judgment of 25 March 2009, Kaul v OHIM — Bayer (ARCOL), T‑402/07, EU:T:2009:85, paragraphs 81 and 82).
97      Third, as regards the applicant’s argument that there is a certain similarity between the initial letters ‘z’ and ‘s’, especially because the letter ‘z’, in particular in handwritten form, can be seen as a vertically mirrored ‘s’ and vice versa, it must be observed that the two marks at issue are EU word marks. A word mark is a mark consisting entirely of letters, of words or of associations of words, written in printed characters in normal font, without any specific graphic element.
The protection which results from registration of a word mark concerns the word mentioned in the application for registration and not the specific graphic or stylistic elements accompanying that mark (see, to that effect, judgment of 13 February 2007, Ontex v OHIM —
Curon Medical (CURON), T‑353/04, not published, EU:T:2007:47, paragraph 74). The applicant’s claim is therefore irrelevant.
98      The Board of Appeal was therefore right to hold that the conflicting signs had a low degree of visual similarity.
–       Phonetic comparison
99      The applicant submits that, phonetically, the existence of similarity between the marks at issue in at least one of the languages spoken in the European Union is sufficient for a finding that there is a likelihood of confusion. Even though the pronunciation differs in other parts of the European Union, the phonetic similarity in the territory in question
is, according to the applicant, neither negated
nor diminished. In the present case, the applicant argues that the conflicting signs share the last syllable ‘mox’ and that, as far as concerns the first syllable, the letters ‘s’ and ‘z’ are pronounced as highly similar hissing sounds,
as for example in Germany, whereas in other languages they may
even sound identical, for example in the Dutch or French language. Furthermore, in some languages, the letters ‘y’ and ‘i’ can be pronounced in the same way or in a very similar manner, as in German, French and Latin languages. The applicant concludes, contrary to the findings of the Board of Appeal, that the relevant public will perceive both marks as highly similar
phonetically.
100    EUIPO and the intervener challenge the applicant’s arguments, contending in particular that, although, in certain languages the letters ‘s’ and ‘z’ are pronounced in a very similar manner, as in German, or in the same way, as in Dutch or French, the difference between the first syllables is nevertheless clearly audible in all the relevant languages, including those in which the letters ‘s’ and ‘z’ are pronounced in an identical manner.
101    In that regard, it should be recalled that, where the protection of the earlier trade mark extends to the whole of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods or services in question in that territory. However, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation
2017/1001 exists in part of the European Union. (see, to that effect, judgment of 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
102    However, in the light of the case-law cited in paragraph 84 above, the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the conflicting signs, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements.
103    In particular, the assessment of any phonetic similarity is but one of the relevant factors for the purpose of that global assessment. Therefore, one cannot deduce that there is necessarily a likelihood of confusion where mere phonetic similarity between two signs is established (judgment of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 35).
104    In the present case, in the contested decision, the Board of Appeal held that the degree of phonetic similarity between the conflicting signs must be regarded as weak and resulting specifically from the suffix ‘mox’. By referring to the existence of 24 official languages in the European Union, it thereby lowered the degree of phonetic similarity between the signs, which had been regarded as high by the Opposition Division by reason of the phonetic similarities in the first part of the conflicting signs, specifically in German.
105    In that connection, as regards the first syllable of each of the conflicting signs, it must be held, first, that, in certain languages, the letters ‘s’ and ‘z’ respectively,
which are the first letter of the mark applied for and the earlier mark, are pronounced in a similar manner, as in Dutch or French. Second, while it is true that the presence of the letter ‘u’ in the mark applied for after the first letter ‘s’ results in a certain difference in the pronunciation of the two marks in several languages, as for example in English, German, Dutch and Latin languages, the fact remains that the presence of the letter ‘i’ in the mark applied for and the letter ‘y’ in the earlier mark, which are pronounced in a similar manner in several languages, like the Latin languages, emphasises the phonetic similarity between the two marks.
106    While it is true that a difference in the first part of a word mark is that which generally has the greatest impact on the perception of consumers, the fact remains that, in the present case, the letters before the suffix ‘mox’ in each of the conflicting marks are not pronounced in such a way that the relevant public perceives a lesser degree of phonetic similarity, as the Board of Appeal held.
107    It follows from the foregoing that the Board of Appeal wrongly held that the phonetic similarity between the conflicting signs had to be regarded as low, since there is a high degree of phonetic similarity between the signs.
Global assessment of the likelihood of confusion
108    A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
109    The applicant submits that the Board of Appeal erred with regard to the importance to be attached to the relevant factors in the assessment of the likelihood of confusion. First, it takes the view that the goods covered by the earlier mark are very similar to ‘veterinary preparations; veterinary preparations and animal health care products, including antibiotics for animals; nutritional supplements for veterinary use; dietetic substances for veterinary purposes; preparations for destroying vermin; vaccines for veterinary use; the aforesaid goods not including ear drops for animals’ and at least similar to ‘preparations for killing weeds; the aforesaid goods not including ear drops for animals’ covered by the mark applied for. Second, it claims that the Board of Appeal failed to take account of the fact that the common element ‘mox’ must be regarded as a dominant and distinctive element. Third, it submits that, in paragraphs 19 and 20 of the contested decision, the Board of Appeal found a ‘higher than average level of attention’ on the part of the relevant public, whereas, in the overall assessment, in paragraph 50 of the contested decision it stated that the relevant public had a ‘high level of attention’. Fourth, the Board of Appeal failed to take account of the fact that the similarity of one single element of comparison and, in particular, a phonetic similarity of the word marks may give rise to a likelihood of confusion. Fifth, the Board of Appeal put too much weight on the visual comparison of the trade marks, whereas, as regards word marks, the phonetic comparison is more relevant than the visual comparison, in particular as in the present case, in which a prescription is unnecessary. Sixth, it submits that average consumers must
trust in their imperfect recollection of the two marks that they have kept in their minds when they compare them and it is therefore very likely that consumers may believe that the goods concerned, which are very similar, come from the same company, or at least, economically linked companies.
110    EUIPO and the intervener dispute the applicant’s arguments.
111    As to the first argument, set out in paragraph 109
above, concerning the nature of the goods, the degree of similarity, first, between the goods corresponding to: ‘veterinary preparations; veterinary preparations and animal health care products, including antibiotics for animals; the aforesaid goods not including ear drops for animals’ on one hand, and ‘medicated ear drops for domestic animals’, on the other, must regarded as high, as stated in paragraphs 55 and 56 above. Second, the degree of similarity between ‘vaccines for veterinary use’ and
‘nutritional supplements for veterinary use; dietetic substances for veterinary purposes’, on one hand, and ‘medicated ear drops for domestic animals’ on the other, must be regarded as average, as stated in paragraphs 60 and 69 above. Third, the goods corresponding to ‘preparations for killing weeds’ and ‘medicated ear drops for domestic animals’ must be regarded as different, as held in paragraph 83 above. Fourth, the goods corresponding to ‘preparations for destroying vermin; the aforesaid goods not including ear drops for animals’ and ‘medicated ear drops for domestic animals’ must be regarded as highly similar, as stated in paragraph 76 above.
112    It follows that there are similarities concerning the nature of the goods covered by the conflicting marks.
In that regard, while some of the goods covered by the mark applied for must be regarded as different from the goods covered by the earlier mark, there are goods covered by the mark applied for which have a high degree of similarity with the goods covered by the earlier mark and there are also goods covered by the mark applied for which have an average degree of similarity with the goods covered by the earlier mark.
113    As to the second argument mentioned in paragraph 109 above, it must be held, as is clear from paragraphs 87 to 92 above, the Board of Appeal rightly held that the element ‘mox’ in the marks concerned was not the dominant and distinctive element. That argument must therefore be dismissed.
114    As regards the third argument, set out in paragraph 109 above, as is clear from paragraphs 50 to 52 above,
the Board of Appeal rightly held that, in relation to the definition of the relevant public, the goods at issue in the present case, whether or not they are issued on prescription, benefit from a ‘higher than average’ level of attention on the part of the relevant public, since those goods concern animal health.
115    It is true that, in the overall assessment, the Board of Appeal stated, in paragraph 50 of the contested decision, that the relevant public had a ‘high’ level of attention. However, that classification does not introduce a difference in degree as compared with that given in connection with the definition of the relevant public. Therefore, it does not result from an error in the analysis carried out in the contested decision, contrary to the applicant’s assertions which are, moreover, unsupported. The two expressions ‘higher than average level of attention’ and ‘high level of attention’ must, in the circumstances of the case, be interpreted as meaning that the goods at issue benefit from a heightened level of attentiveness on the part of the relevant public, as the Board of Appeal stated in paragraph 19 of the contested decision.
116    It follows that the third argument mentioned in paragraph 109 above must be dismissed.
117    As to the fourth, fifth and sixth arguments set out in paragraph 109 above, although it is true that visually, the degree of similarity between the conflicting signs must be regarded as low, as stated in paragraph 98 above, it is also true that there is a high level of phonetic similarity between the two marks, as held in paragraph 107 above. However, as follows from the case-law mentioned in paragraphs 102 and 103 above, in order to refuse registration of an EU trade mark, it is not sufficient to establish the existence of phonetic similarity alone between the conflicting signs, regardless of the territory of the European Union in which such similarity exists.
118    As concluded in paragraphs 55, 56 and 76 above, the goods corresponding to ‘veterinary preparations; veterinary preparations and animal health care products, including antibiotics for animals; the aforesaid goods not including ear drops for animals’ and ‘preparations for destroying vermin; the aforesaid goods not including ear drops for animals’, on one hand, and ‘medicated ear drops for domestic animals’ on the other hand, must be regarded, as to their nature as having a high degree of similarity.
119    Therefore, having regard to a high level of phonetic similarity between the two marks, as found in paragraph 107 above, it is likely that, despite the low level of visual similarity of the conflicting marks and the heightened level of attention on the part of the relevant public, EU consumers will believe that those goods designated by the conflicting marks are from the same company or economically
linked companies, especially because the distribution channels of the goods in question may coincide, which EUIPO does not deny.
120    However, that strong phonetic similarity, on one hand, and the average level of similarity as to their nature of other goods covered by the conflicting marks, on the other hand, as mentioned in paragraphs 107 and 112 above, are unable to offset the low level of visual similarity of the conflicting marks, given the heightened level of attentiveness on the part of the relevant public. Therefore, it is unlikely that EU consumers will believe that the goods designated by the conflicting marks, in this case ‘vaccines for veterinary use’ and ‘nutritional supplements for veterinary use; dietetic substances for veterinary purposes’, on one hand, and ‘medicated ear drops for domestic animals’ on the other hand, originate from the same company or from economically linked companies.
121    Furthermore, have regard to the difference between the goods covered by the earlier mark and other goods covered by the mark applied for, as set out in paragraph 111 above, it is not more likely that EU consumers will believe that those goods, specifically ‘preparations for killing weeds’, on one hand, and ‘medicated ear drops for domestic animals’, on the other hand, come from the same company or from economically linked companies.
122    Therefore, the second plea in law must be upheld, as regards
‘veterinary preparations; the aforesaid goods not including ear drops for animals’, ‘veterinary preparations and animal health care products, including antibiotics for animals; the aforesaid goods not including ear drops for animals’ and ‘preparations for destroying vermin; the aforesaid goods not including ear drops for animals’.
123    In the light of all of the foregoing, the contested decision must be annulled in so far as it concerns ‘veterinary preparations; the aforesaid goods not including ear drops for animals’, ‘veterinary preparations and animal health care products, including antibiotics for animals; the aforesaid goods not including ear drops for animals’ and ‘preparations for destroying vermin; the aforesaid goods not including ear drops for animals’. However, the application must be dismissed in so far as it concerns the other goods designated in the trade mark application.
Costs
124    Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared. In this case, since the contested decision must be annulled only in part, it is appropriate to order the parties to bear their own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 March 2018 (Case R 1835/2017-5) in so far as it concerns ‘veterinary preparations; the aforesaid goods not including ear drops for animals’, ‘veterinary preparations and animal health care products, including antibiotics for animals; the aforesaid goods not including ear drops for animals’ and ‘preparations for destroying vermin; the aforesaid goods not including ear drops for animals’;
2.      Dismisses the action as to the remainder;
3.      Orders each party to bear its own costs.
Gervasoni
Madise
da Silva Passos
Delivered in open court in Luxembourg on 13 June 2019.
E. Coulon
S. Gervasoni
Registrar
President
*      Language of the case: English.