Judgment of the General Court (Ninth Chamber) of 13 June 2019 –

Pet King Brands v EUIPO — Virbac (SUIMOX)

(Case T‑366/18)

(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)

1. EU trade mark — Procedural provisions — Statement of reasons for decisions — Scope — Existence of clear shortcomings in the decision notified by the Board of Appeal — Obligation of the recipient to report such shortcomings to the Board — Good faith and diligence of the recipient (European Parliament and Council Regulation 2017/1001, Art. 94(1), 1st sentence) (see para. 17)

2. EU trade mark — Procedural provisions — Notification — Notification by fax (see paras 19, 20)

3. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word marks SUIMOX and ZYMOX (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 23, 43, 83, 92, 98, 107, 112, 113, 116, 123)

4. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 46-48, 84, 101, 103, 108)

5. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity between the goods or services in question — Criteria for assessment — Complementary nature of the goods or services (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 53, 54, 63)

6. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 87, 96, 97)

Re:

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.

Operative part

The Court:

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;