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2) Reemtsma Cigarettenfabriken GmbH (Reemark) (DE) based on an earlier registration of the word mark WEST registered in relation to goods in classes 1-33 and to services in classes 35-42 opposed to registration of a word and device mark Westel LUX in the name of SIA SATEKS - R (LV) for goods in class 11. The Board did not find the marks confusingly similar. The decision was motivated by the following arguments. The opponent's mark incorporated one English word, the meaning of which was known to the majority of Lithuanian consumers. The word "westel" in the opposed mark was a coined word. The word "lux" could be perceived as a term meaning "a unit of lighness", however in common speech it would be perceived as indication of the highest class of goods. Consequently it was concluded that semantically and visually the marks in general would be perceived differently. Attention was also drawn to the type of goods in class 11 that were normally bought not spontaneously like everyday goods, but after the buyer has carefully studied the characteristics of the goods, information about the manufacturer, etc. Based on the findings the Board rejected the opposition and the opposed mark was registered.
3) United Parcel Service of America, Inc. (US) based on earlier registrations of the word mark UPS for a broad range of goods and services in a number of classes, including services in classes 35, 36, 38, 39, 42, opposed to registration of a word and device mark incorporating the word UTS in the name of U.T.S. Europe B.V. (NL) for services in classes 35, 39, 42. The Board found the marks similar: the word elements were of the same length, the differing letter being in the middle. The graphics of the letters in the opposed mark was not found distinctive enough for the consumer not to be misled into thinking that the opposed mark is a graphic variation of the opponent's marks. The Board disregarded the opposed party's argument that the consumer would perceive the marks as trade names of the companies - United Parcel Service and U.T.S Europe - motivating it by the defendant's failure to submit evidence in proof of such perception of the marks by the average Lithuanian consumer. Services in class 35 were found similar because the opponent's mark related to a broad range of services including those in the defendant's application. "Transport, packing and storing of goods" in the opposed application in class 39 were found similar to the opponent's services in this class because they all related to transportation sphere. The applicant's services "organization of tours" was found not similar to "transport and storage" by designation, sphere and distribution channels. Services in class 42 were found dissimilar by their designation and purpose. The Board refused registration of the opposed mark in Lithuania for services in class 35 and partially in class 39. The Board allowed registration of the opposed mark in relation to services in class 42 and for dissimilar services in class 39.
4) KESKO OYJ (FI), the holder of an earlier registration for the mark JUST IN, opposed to registration of the mark JUSTME COLLECTION (logo) in the name of a Lithuanian manufacturer. The Board found the marks confusingly similar. Both marks relate to identical and similar goods in class 25, "clothes" in particular. The words JUST IN and JUSTME differ only in the last two letters. Similarity to the ear is created by identical stressed syllables at the beginning and the same length of the words. The marks were also found similar by connotation - both stand for "something very fashionable". Based on these findings the Board revoked registration of the opposed mark.
5) BISON CLUB A/S (DK) opposed to registration of the mark BISON in classes 25 and 35 in the name of a local holder on the grounds of similarity to the earlier word mark BISON CLUB in block letters in class 25 and to a trade name. The opposed mark contained the word BISON in big letters and a picture of a bison, both in red colour. The Board found the marks similar. The word "bison" was incorporated into both marks, the picture did not influence the conceptual perception of the mark because it was just an illustration of the word. The Board noted that the applicant had failed to submit any evidence in proof that "bison club" would be perceived as a meaningful phrase. Regard was also taken of the fact that sometimes consumers are devoid of the possibility to make a direct comparison between two marks There were no doubts about similarity of the goods in class 25, the Board also found similarity between the goods in class 25 and retail trade services, because the goods and services were found to be related. The Board also considered the issue of similarity between the opposed mark and the opponent's trade name. The opponent submitted documents in proof of a long-time use of the name in Lithuania as the name of a shop, as well as invoices and customs documents in proof of deliveries of the opponent's goods to Lithuania. The opposition on both grounds was upheld and registration of the opposed mark was invalidated.
6) The parties and circumstances in this opposition case were the same as above
except for some difference in the opposed mark. The opposed mark was registered
in black and white, the symbolic picture of a bison was located to the left
from the picture of a bison and there was also some difference in the word element.
Though the script of the letters in the opposed mark remained the same, this
time it was B!SON (with an exclamatory mark instead of the second "I").
Unlike the case above, this time the Board did not find confusing similarity.
Firstly, the Board noted that none of the elements in the opponent's mark was
repeated in the opposed mark. Attention was drawn to the conceptual difference.
The meaning of the opponent's mark "BISON CLUB" would be clear to
any consumer, while the opposed mark consisting of the letter B and SON at the
end separated by the exclamatory mark would not suggest any meaning. Thus, the
marks were found dissimilar visually, phonetically and conceptually. The proof
of use of the mark BISON CLUB was disregarded for the reason of dissimilarity
between the marks. The opposition was rejected.
7) A German holder of the word mark "OREGON" registered for goods in a number of classes including outwear, footwear etc. in class 25 opposed to registration of the mark "POLO & SWEAT, Oregon" for identical and similar goods in class 25 in the name of a Belgian holder. The Board did not find the marks to be confusingly similar. Besides the repeated word "Oregon", the opposed mark incorporated the words "Polo & Sweat" and a drawing of a tree. The opponent insisted that the words "polo" and "sweat" were descriptive in relation to the goods and submitted some evidence in proof of it. The Board found the proof to be not convincing. The Board fully disregarded the argument about the weak distinctiveness of the drawing of a "tree" in relation to the said goods. As a result the marks were found to be dissimilar by the overall impression. The opposition was rejected.
8) The Procter & Gamble Company (US) based on registration of the mark
PANTENE for hair care products opposed to registration of the mark PANTINA in
the name of PANTINA COSMETICS, US - for cosmetics goods, mainly beautycare and
skin care preparations. The Board did not find the marks to be confusingly similar.
Firstly, the Board noted that each of the marks was designated to be used for
"very particular" goods. The goods specified in the opponent's registration
were absent in the opposed mark. The goods relating to both marks were normally
sold in different departments of a cosmetics shop, though the opponent's goods
might just as well be sold in big trade centres. The marks themselves were not
found to be confusingly similar either. Note was taken of the specific script
of the opposed mark, particularly that of the first letter "P". Though
the words were of the same length (consisted of the same number of letters),
the repeated beginning was found to be insufficient for the finding of similarity.
The words were found dissimilar to the ear. The Board noted that the opposed
mark would be pronounced as it was spelled (letter by letter), while following
the rules of the English language the last letter "e" in the opponent's
mark would not be pronounced, consequently, the words differed in the number
of syllables (three and two). When considering the semantic aspect the Board
noted that both would be perceived as coined words, however the opposed mark
"repeated a part of the applicant's trade name". Based on such motivation
the Board rejected the opposition and the opposed registration remained valid.
9)
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Opposing Mark
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Opposed Mark
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MedOla
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The holder of the word mark "MedOla" for all goods in class 05 opposed to registration of the word-figurative mark MEDIOLA with a device of a bee for "medical dressings". The opposition was filed on absolute (deceptiveness) and relative (similarity to an earlier mark) grounds. The Board rejected the opposition filed on absolute grounds and considered only the issue of similarity. Since the earlier mark covered a broader list of goods the Board found the goods of the contested mark to be identical to the goods of the opposing mark. Comparing the marks the Board noted that the word in the opposed mark repeated its holder's trade name. Attention was drawn to the different height of the letters in the opposing mark (standard typeface upper letters M and O, the others being inscribed in small letters), the typeface, colours, and the device of a bee in the opposed mark, which the Board found important in creating different visual impression. With regard to phonetic aspect, it was noted that "I" in the middle of the opposed mark palatalized the preceding "D". Commenting on the semantic aspect, the Board noted that the element "Med" in the opposing mark could be associated with medicine, while the word in the opposed mark stood for its holder's trade name. The marks were found to be dissimilar by the overall perception and the opposition was rejected.
10)
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Opposing Marks
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Opposed Marks
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PASAKA (w)
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RYTO PASAKA (w)
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(similiar)
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(dissimiliar)
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The holder of the word and word-figurative marks PASAKA opposed to registration
of the following marks in the name of the same applicant: the word marks RYTO
PASAKA (Lithuanian for "the tale of the morning"), the word-figurative
mark RYTO PASAKA, the word-figurative mark PASAKA and another word-figurative
mark RYTO PASAKA with additional device elements. The oppositions were filed
in connection with identical or similar goods in classes 29 and 30. Since the
parties to the dispute as well as the opposing marks were the same, the oppositions
were considered during one hearing. The opposing word-figurative mark did not
contain any prominent device: just a word in an almost standard upper typeface
written inside a rectangular. The opposed word mark was found similar to each
of these two marks. The first of the opposed word-figurative marks neither incorporated
any imaginative picture - the word PASAKA in an almost standard upper typeface
inside an oval geometric figure with the word RYTO inside a rectangular placed
on the top of the oval. Comparing the word elements PASAKA and RYTO PASAKA with
regard to the semantic aspect the Board noted that the word "RYTO"
("morning") did not create any difference in the conceptual perception.
For this reason the word-figurative mark RYTO PASAKA in an oval was invalidated.
The two remaining opposed marks, besides the words and not highly imaginative
device elements, incorporated the picture of "three joyful characters in
a fairy town". The Board found this picture to be highly imaginative and
having a strong impact on the overall perception, which made the remaining two
opposed marks dissimilar to the opposing marks. Thus, the oppositions against
word and not highly imaginative word and device marks PASAKA and RYTO PASAKA
were upheld, while oppositions against two word-figurative marks with the same
words but an additional highly imaginative device in the right column) were
rejected and the latter two opposed marks remained in force.
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INTELS-LITHUANIA |