the word and figurative EUTM for
dietary supplements in Class 5. Spanish
company Laboratorios Ern, SA filed a
notice of opposition based on the earlier
Spanish word mark DYNAMIN, which
was registered for dietetic foods adapted
for medical use in Class 5. The
Opposition Division as well as the
Fourth Board of Appeal of EUIPO
rejected the opposition. The Board of
Appeal concluded that, taking into
account the normal distinctive character
of the earlier mark and the heightened
level of attention of the relevant public
for goods for medical use, there was no
likelihood of confusion.
the comparison between the signs at
issue must be made by considering the
mark applied for in its entirety, the
overall impression made in the minds of
the relevant public by that mark not
being dominated by any of its component
parts. The term dynamic cannot be
considered to be dominant in the mark
applied for. That term would neither
dominate the term life, which is
represented in the same way, nor the
figurative element, which occupies a
significant place in the sign, in view, in
particular, of its size, its position and its
bright colours. Due to the second word
of the mark applied for, life, and its
figurative element, which both have no
equivalent in the earlier mark, the Court
held that the marks at issue show a low
degree of visual and phonetic similarity.
The Court followed from all of the
foregoing that, specifically in light of the
normal distinctive character of the
earlier mark, the average or even high
level of attention in respect of a portion
of the goods at issue, the low degree of
the signs, and the lack of conceptual
similarity, there would be,
notwithstanding the identical character
of certain goods, no likelihood of
confusion between the signs at issue.
contested sign is certainly eye catching
due to its size, it tends to reinforce the
promotional character of the word
elements in the minds of the relevant
public because of its descriptiveness (the
leaf-shaped elements are merely
descriptive for dietary supplements).
Further, the second word of the mark
applied for, life, also does have a
descriptive meaning for dietary
supplements. This word will be associated
with human or animal life and bearing in
mind that the relevant goods are dietary
supplements, this element is non-
distinctive for such goods, since the Class
5 goods are used to maintain a healthy
life. In contrast, the first word of the
mark applied for, Dynamic, might be
linked to the Spanish word for dynamic,
namely dinámico, but it still shows a
normal level of distinctiveness, as the
Court affirmed. That said there are good
reasons for giving the first word of the
mark applied for, Dynamic, a dominant
role in the sign, in which case, the
decision might be that the signs are
confusingly similar.
Nobody would have anticipated
that our British friends would
really do it and vote for the
Brexit. But they did and the rest of
Europe is kind of shocked. We will
eventually all have to deal with the
aftermath of this political earth-
quake. It is probably too early to
foresee the impact this will have
on our IP world. The UK has not
even submitted the formal motion
to leave the EU. It can be guessed
that there are a lot of negotiations
taking place behind closed doors
in Brussels and elsewhere trying
to define the conditions under
which the Brexit may occur.
certainty that EU trademarks will
lose their validity in the UK but at
the same time a mechanism for
the conversion of EU trademarks
into national British trademarks is
likely to be implemented. Also on
the patent side the launch of the
European Unitary Patent and the
introduction of the Unified Patent
Court scheme will be in some way
affected or at least delayed. And
last but not least the European
Medicines Agency (EMA) will
probably have to move to another
EU Member State if the UK finally
leaves the EU. At the PTMG
Committee meetings we have
agreed that PTMG will only deal
with all these open questions at
one of our future conferences
once we have some kind of clarity.
It is by far too early for that now.
for our PTMG Autumn
Conference which will take place
in Oslo early in October. We are
proud that we will again be able to
present an interesting programme
to our friends and colleagues. I
hope to see many of you there.
See you in Oslo!
character of elements of a
composite trade mark