Healios v EUIPO - Helios Kliniken (Healios) (EU trade mark - Judgment) [2021] EUECJ T-591/19 (22 September 2021)

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(EU trade mark – Opposition proceedings – Application for EU figurative mark Healios – Earlier EU word mark HELIOS – Likelihood of confusion – Similarity of the signs – Similarity of the goods and services – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article (8(1)(b) of Regulation (EU) 2017/1001) – Genuine use of the earlier mark – Article 42(2) of Regulation No 207/2009 (now Article 47(2) of Regulation 2017/1001))

European Union Intellectual Property Office (EUIPO), represented by L. Rampini and V. Ruzek, acting as Agents,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Helios Kliniken GmbH, established in Berlin (Germany), represented by B. Michaelis, lawyer,

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 12 June 2019 (Case R 341/2018-5), relating to opposition proceedings between Helios Kliniken and Healios,

composed of D. Spielmann, President, U. Öberg (Rapporteur) and O. Spineanu-Matei, Judges,

having regard to the application lodged at the Court Registry on 28 August 2019,

having regard to the response of EUIPO lodged at the Court Registry on 3 December 2019,

having regard to the response of the intervener lodged at the Court Registry on 13 March 2020,

having regard to the measures of organisation of procedure of 15 September 2020 and the parties’ responses lodged at the Court Registry on 1 October 2020,

1 The present dispute concerns, in essence, the alleged likelihood of confusion between the figurative mark applied for, Healios, and the earlier word mark HELIOS, and the existence of a similarity between goods and services falling, generally, within the medical and hospital field and aimed at a relevant public with a high level of attention.

2 On 17 June 2015, the applicant, Healios KK, filed an application for registration of an EU 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)).

3 The EU trade mark in respect of which registration was sought is the following figurative sign:

4 The goods and services in respect of which registration was sought are in Classes 1, 5, 10, 40 and 44 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 for each of those classes:

– Class 1: ‘Stem cells for scientific purposes; Stem cells other than for medical or veterinary purposes; Stem cells for research purposes; Diagnostic reagents and preparations, except for medical or veterinary use; Biological preparation for use in cell culture other than for medical or veterinary use’;

– Class 5: ‘Pharmaceutical, veterinary and sanitary preparations; Stem cells for medical purposes; Cellular function activating agents for medical purposes; Stem cells for veterinary purposes; Ophthalmic preparations; Pharmaceutical preparations for peripheral nervous system; Cardiovascular pharmaceutical preparations; Sanitary preparations for medical use; Pharmaceutical preparations and substances for the treatment of damaged skin and tissue; Pharmaceutical preparations and substances for use in the fields of anaesthesia, oncology, urology and gynaecology; Surgical implants grown from stem cells’;

– Class 10: ‘Medical apparatus; Medical instruments for cutting tissue; Needles for medical purposes; Medicinal catheters; Medical instruments for interstitial thermotherapy of biological tissue; Prosthetic tissues for parietal use; Prosthetic tissues for visceral use; Artificial bones for implantation; Syringes for medical purposes and for injections’;

– Class 40: ‘Custom manufacture of products for the pharmaceutical, chemical and food industries by compressing and compacting powders and granules; Custom manufacture of pharmaceuticals; Treatment of biopharmaceutical materials; Processing of biopharmaceutical materials for others’;

– Class 44: ‘Medical services; Medical consultations; Medical information; Ophthalmology services; Preparation and dispensing of medications; Medical screening; Dietary and nutritional guidance; Medical services relating to the removal, treatment and processing of stem cells; Medical services relating to the removal, treatment and processing of human blood, umbilical cord blood, human cells, stem cells and bone marrow’.

5 On 10 September 2015, the intervener, Helios Kliniken GmbH, filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 4 above.

6 The opposition was based on the EU word mark HELIOS, filed on 13 June 2005 and registered on 7 December 2009 under No 4492062 in respect of services in Classes 35, 37, 42 and 44 and corresponding to the following description for each of those classes:

– Class 35: ‘Drawing up and management of medical and administrative data’;

– Class 44: ‘Hospitals; providing of food and drink in the hospital sector; professional consultancy (non-business) with regard to the purchasing of all hospital requisites; information services in the field of health care, namely exchange of digital data between hospitals and clinics, or with others’

7 The ground relied on in support of the opposition was that there was a likelihood of confusion on the part of the relevant public.

8 On 28 June 2016, the applicant asked the intervener to produce proof of genuine use of the earlier mark.

9 On 20 December 2017, the Opposition Division rejected the opposition on the ground that the evidence furnished by the intervener was insufficient to prove genuine use of the earlier mark.

10 On 14 February 2018, the intervener lodged an appeal against the decision of the Opposition Division.

11 By decision of 12 June 2019 (‘the contested decision’), the Fifth Board of Appeal of EUIPO annulled the Opposition Division’s decision and partially allowed the opposition, namely for some of the goods in Classes 1 and 10, and for all of the goods and services in Classes 5, 40 and 44 and covered by the mark applied for.

12 In particular, first of all, the Board of Appeal found the additional evidence lodged by the intervener relating to the use of the earlier mark to be admissible, and specified that only the services ‘medical and bacteriology laboratories’ in Class 42 and ‘hospitals’ in Class 44 and covered by the earlier mark were related to the question of genuine use in the context of the assessment of a likelihood of confusion on the part of the relevant public (‘the related services covered by the earlier mark’), since the other services covered by the earlier mark were entirely unrelated to the goods and services covered by the application for registration. In that regard, it stated that the evidence made it possible to conclude that the earlier mark had been put to genuine use in relation to those services.

13 It added that the relevant public consisted, first, of scientists for the goods in Class 1 covered by the mark applied for and, secondly, of average consumers and medical personnel for the goods and services in Classes 5, 10, 40 and 44 covered by the mark applied for and the related services covered by the earlier mark. Given the goods and services at issue, the Board of Appeal held that the relevant public has a high level of attention.

14 Next, the Board of Appeal found that the ‘stem cells for scientific purposes’ and ‘stem cells for research purposes’ in Class 1 covered by the mark applied for were similar to the related services covered by the earlier mark, that the ‘medical apparatus’ in Class 10 covered by the mark applied for were similar, at least to a low degree, to the related services covered by the earlier mark, that all the goods in Classes 5 and 40 covered by the mark applied for were similar to the related services covered by the earlier mark and that all the services in Class 44 and covered by the mark applied for were identical to the services ‘hospitals’ covered by the earlier mark. It did, however, state that the other goods in Classes 1 and 10 and covered by the mark were dissimilar to the related services covered by the earlier mark.

15 Lastly, the Board of Appeal found that the signs at issue were very similar visually and phonetically, and conceptually similar, or even different or neutral, depending on whether the relevant public associates the element ‘Healios’ of the mark applied for with a misspelling of the element ‘helios’ in the earlier mark. It concluded that there was a likelihood of confusion on the part of the relevant public in respect of all the goods and services at issue, with the exception of those goods in Classes 1 and 10 which were covered by the mark applied for and were different from the related services covered by the earlier mark.

19 In support of its action, the applicant submits, in essence, that proof of genuine use of the earlier mark has not been provided, at least for the ‘medical and bacteriology laboratories’ in Class 42, that the goods and services at issue are different, and that the signs at issue are similar to a low degree or even dissimilar, so that a finding of no likelihood of confusion on the part of the relevant public is appropriate.

Application ratione temporis of the regulations on the EU trade mark

20 As a preliminary point, it should be noted, considering the date on which the application for registration at issue was filed, namely 17 June 2015, which is determinative for the purposes of identifying the applicable substantive law, that the facts of the case are governed by the substantive provisions of Regulation No 207/2009, as amended, (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited).

21 Furthermore, in so far as, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation 2017/1001.

22 Consequently, in the present case, as regards the substantive rules, references made to the articles of Regulation 2017/1001 in the contested decision and by EUIPO must be understood as referring to the identical articles of Regulation No 207/2009.

23 As a preliminary point, it should be noted, in view of the parties’ arguments, reiterated at the hearing, that they do not, in essence, dispute the Board of Appeal’s findings that the relevant public is the German public, which, whether consisting only of scientists in the field of chemistry and biology, or of both the general public and health professionals, perennially displays a high level of attention.

24 The Board of Appeal found that the evidence submitted by the intervener demonstrated genuine use of the earlier mark in Germany during the period from 9 July 2010 to 8 July 2015 (‘the relevant period’) for the related services covered by the earlier mark.

25 The applicant submits that genuine use of a mark can be proved only by solid and objective evidence of effective and sufficient use of the mark on the market. The affidavit of the intervener’s managing director should have been corroborated by other credible and objective evidence. In the absence of such evidence, proof of genuine use of the earlier mark, at least for ‘medical and bacteriology laboratories’ in Class 42, has not been provided.

27 By virtue of Article 42(2) of Regulation No 207/2009, an applicant for an EU trade mark against which opposition has been filed may require proof that the earlier mark relied on in support of that opposition has been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered, and on which the opposition is based, during the five years preceding publication of the application.

28 Rule 22(2) of Commission Regulation (EC) No 2868/95 of 13 December 1995, implementing Regulation No 40/94 (OJ 1995 L 303, p. 1) (replaced by 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)) provides that, if the opposing party does not furnish proof of use of the earlier mark or show that there are proper reasons for non-use within the period specified by EUIPO, then EUIPO is to reject the opposition. According to Rule 22(3), proof of use must relate to the place, time, extent and nature of use made of the earlier trade mark for the goods and services in respect of which it is registered and on which the opposition is based. Furthermore, Rule 22(4) provides that the proof of use shall, in principle, be confined to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and to the statements in writing referred to in Article 78(1)(f) of Regulation No 207/2009.

29 However, those provisions do not seek to assess commercial success or to review the economic strategy of an undertaking; nor are they intended to restrict trade mark protection to the case where large-scale commercial use has been made of the marks (judgment of 26 September 2013, Centrotherm Systemtechnik v centrotherm Clean Solutions, C‑609/11 P, EU:C:2013:592, paragraph 72).

30 There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (see, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43). Furthermore, the condition as to genuine use of the mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly (see, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 37).

31 When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of the goods or services at issue, the characteristics of the market and the scale and frequency of use of the mark. To examine, in a particular case, whether an earlier trade mark has been put to genuine use, an overall assessment must be carried out, which takes into account all the relevant factors of the particular case (judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraphs 40 and 42).

32 Genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned (judgments of 12 December 2002, Kabushiki Kaisha Fernandes v OHIM – Harrison (HIWATT), T‑39/01, EU:T:2002:316, paragraph 47, and of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 28).

33 In the present case, it is apparent from the contested decision and from the documents in the file submitted by EUIPO to the Court that the intervener produced a certain number of documents for the purposes of establishing genuine use of the earlier mark for the related services covered by the earlier mark during the relevant period.

34 In that regard, the applicant does not dispute the admissibility of the additional evidence lodged by the intervener before the Board of Appeal. Nor do the parties dispute that only the services ‘medical and bacteriology laboratories’ in Class 42 and the ‘hospitals’ in Class 44 and covered by the earlier mark related to the issue of genuine use in the context of the assessment of a likelihood of confusion on the part of the relevant public, since the other services covered by the earlier mark were entirely unrelated to the goods and services covered by the mark applied for, nor that the place of use of that mark for those services was Germany.

35 It is apparent from EUIPO’s file and from paragraphs 7 and 11 of the contested decision that, in the proceedings before the Opposition Division and the Board of Appeal, the intervener produced a number of documents, grouped by category and featuring among them the following items of evidence:

– An affidavit of 5 October 2016 signed by the intervener’s managing director mentioning, inter alia, the fact that the hospital group owned or controlled by the intervener consists of 112 acute care and rehabilitation facilities, treats more than 47 million patients annually, and that the earlier mark was used between June 2010 and June 2015, due, in particular, to the word element ‘HELIOS’ being affixed to the façades of hospital buildings belonging to that group and at the entrances to those buildings, to its presence in hospital brochures and in advertisements and gifts, and, in particular, to its use in the context of commercial consulting services in view of the purchasing department for the entire hospital market, and to public information services via the website www.helios-kliniken.de (item 1);

– a dispatch notice, delivery notes, invoices and various purchase agreements for the delivery of certain medical and pharmaceutical products and hospital material for the years 2010 to 2015, some of those documents having been signed by departments of the hospital group owned or controlled by the intervener for internal group deliveries and others identifying external suppliers (items numbered 7, 8, 16, 17 and 18);

– a list of hospitals and other establishments in the group owned or controlled by the intervener in Germany, extracts from websites with the description and organisational chart of that group, as well as tables showing the number of beds per establishment and per medical unit in 2010, the number of employees in 2010, 2011, 2012 and 2014, and providing information relating to the turnover, medical objectives and performance indicators between 2010 and 2014 (items numbered 10, 19, 20, 22, 23, 24, 25, 26 and 29);

– photographs representing the intervener’s promotional material, menus offered by restaurants within the hospitals owned or controlled by the intervener, an order sheet from the catering provider, a kitchen sign and a page from a ‘HELIOS Kliniken’ brochure relating to medical treatment (items numbered 11, 12, 13, 14, 15);

– photographic reproductions of the façades and the entrances to the hospitals and clinics belonging to the group owned or controlled by the intervener, as well as copies of official documents and printouts from that group’s website showing, inter alia, the composition of the names of the establishments belonging to it (items numbered 21, 24, 26, 27 and 28).

36 First of all, as regards the duration of use of the earlier mark, the Court finds that the documents provided by the intervener cover the whole of the relevant period, namely the years 2010 to 2015.

37 Next, as regards the place of use of the earlier mark, the evidence relied on by the Board of Appeal establishes to the requisite legal standard that that mark was used in Germany. Some of the documents submitted by the intervener to constitute proof of genuine use are written in German, the intervener’s headquarters and its various hospitals and clinics are in Germany and the name of the intervener’s website mentioned in item 1 ends in ‘.de’.

38 Lastly, as regards the extent of use of the earlier mark, it should be noted that use of the company name, trade name or shop name can be regarded as genuine use of the registered mark where the sign is affixed to the goods marketed or where, even if the sign is not affixed, there is use in relation to the goods or services where that sign is used in such a way as to establish a link between the sign constituting the company, trade or shop name and the goods marketed or the services provided (see, by analogy, judgment of 11 September 2007, Céline, C‑17/06, EU:C:2007:497, paragraphs 22 and 23 and the case-law cited).

39 In order to assess the evidential value of the documents lodged in the file, regard should be had to the credibility of the account it contains and, in that regard, take account, in particular, of the origin of the document, the circumstances of its preparation, to whom it is addressed and whether it seems from the content to be sensible and reliable (judgments of 7 June 2005, Lidl Stiftung v OHIM – REWE-Zentral (Salvita), T‑303/03, EU:T:2005:200, paragraph 42, and of 15 December 2005, BIC v OHIM (Shape of a flint lighter), T‑262/04, EU:T:2005:463, paragraph 78).

40 According to the affidavit from the intervener’s managing director, (item 1), mentioned in paragraph 35 above, the earlier mark was put to genuine use for the related services covered by the earlier mark on account of, inter alia, the affixing of the word element ‘HELIOS’ to the façades and entrances of hospital buildings belonging to the group owned or controlled by the intervener, the purchase of materials and medicines intended for those hospitals and the presence of the earlier mark on various promotional items of that group.

41 In that regard, it should be noted that the statements contained in that affidavit are, as regards the services ‘hospitals’ in Class 44 and covered by the earlier mark, supported by other evidence lodged by the intervener.

42 Thus, the documents mentioned in paragraph 35 above provide direct information on the type of hospital services actually offered under the earlier mark and their extent, as well as the number of establishments, employees, beds and patients. The photographs of the façades of hospital and clinic buildings belonging to the group owned or controlled by the intervener demonstrate public use of the earlier mark for the ‘hospitals’ in Class 44, as well as the presence of that mark on the group’s promotional items.

43 It is also apparent from the documents lodged by the intervener that the earlier mark is used and represented together with other word elements, such as ‘Klinik’, ‘Kliniken’, ‘Klinikum’ or ‘Service’.

44 According to point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009, proof of genuine use of a trade mark also includes proof of its use in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered.

45 Having regard to the nature of the ‘hospitals’ covered by the earlier mark and in Class 44, the words ‘Klinik’, ‘Kliniken’, ‘Klinikum’ or ‘Service’, which follow the element ‘HELIOS’, will be perceived by the relevant public as having a descriptive purpose and of playing only an ancillary role. The most distinctive element remains the word element ‘helios’ which constitutes the earlier mark and which retains its function of indicating the commercial origin of the services concerned. The representations of the earlier mark which include the word elements ‘Klinik’, ‘Kliniken’, ‘Klinikum’ and ‘Service’ may therefore be regarded as confirming a use of that mark in representations which do not alter its distinctive character.

46 Therefore, the word elements attached to the earlier mark and featuring in the evidence produced by the intervener do not prevent consumers from perceiving that mark as an indication of the origin of the services it designates, with the result that the Board of Appeal did not err in finding that proof of genuine use of the earlier mark for the ‘hospitals’ in Class 44 on the territory concerned during the relevant period had been provided.

47 However, the same does not apply to the ‘medical and bacteriology laboratories’ in Class 42.

48 First, the information contained in the affidavit of the intervener’s managing director (item 1), according to which the earlier mark had been put to genuine use during the relevant period for the ‘medical and bacteriological laboratories’ in Class 42 is, according to the Board of Appeal, corroborated by the items numbered 7, 17 and 29. At the hearing, EUIPO added that proof of such use was also provided by the items numbered 9, 22 and 26.

49 Whilst the items numbered 7 and 17 consist of a dispatch note relating to a medicinal product sent to one of the intervener’s clinics and invoices sent to certain hospitals in the group owned or controlled by the intervener, nothing allows a finding either that the medicinal product was intended for a laboratory or that the invoices originate from a laboratory belonging to the intervener. Those invoices mention only the pharmacy of the hospital belonging to that group, as sender. Nor does item 29 allow the laboratory revenues for the years 2013 to 2015, mentioned therein, to be regarded as an indication that the earlier mark was used publicly and outwardly in relation to the ‘medical and bacteriology laboratories’ in Class 42, within the meaning of the case-law cited in paragraph 30 above.

50 Similarly, the business card in item 9 does not allow a finding that the person it mentions works in one of the intervener’s laboratories, which, moreover, the intervener acknowledged at the hearing, and item 22 does not mention that the intervener provides medical and pharmaceutical laboratory services. Whilst item 26 indicates that the intervener offers medical services including, inter alia, research, it does not, on its own, corroborate the affidavit from the intervener’s managing director.

51 Secondly, at the hearing, EUIPO acknowledged that proof of genuine use of the earlier mark for the ‘medical and bacteriology laboratories’ in Class 42 was debatable.

52 It follows that the Board of Appeal erred in finding that proof of genuine use of the earlier mark for the ‘medical and bacteriology laboratories’ in Class 42 had been provided.

53 Therefore, the applicant's argument based on an incorrect assessment of the evidence relating to genuine use of the earlier mark must be rejected as regards the services ‘hospitals’ in Class 44. However, it is upheld as regards the ‘medical and bacteriology laboratories’ in Class 42.

54 Since the question of proof of use of the earlier mark is preliminary to the question of whether there is a likelihood of confusion between the signs at issue within the meaning of Article 8(1)(b) of Regulation No 207/2009, given the lack of proof of genuine use of the earlier mark for the ‘medical and bacteriology laboratories’ in Class 42, the Board of Appeal could not take those services into account when ruling on the question of any likelihood of confusion on the part of the relevant public.

55 However, according to settled case-law, if, in the particular circumstances of the case at hand, an error could not have had a decisive effect on the outcome, the argument based on such an error relating to the assessment of the facts is ineffective and cannot therefore be sufficient to justify the annulment of the decision that is being contested (see, to that effect, judgment of 7 September 2017, VM v EUIPO – DAT Vermögensmanagement (Vermögensmanufaktur), T‑374/15, EU:T:2017:589, paragraph 143 (not published) and the case-law cited).

56 That error by the Board of Appeal is not therefore automatically such as to vitiate the reasoning set out in the contested decision, since it is clear, on reading all the grounds of that decision, that the Board of Appeal also took the services ‘hospitals’ in Class 44 as a basis for finding a likelihood of confusion on the part of the relevant public.

57 The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components. 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 engage in an analysis of 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).

58 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 overall, according to the relevant public’s perception of the signs and the goods or services in question, and taking into account all factors relevant to the circumstances of the case, and in particular similarity between the trade marks and between 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).

59 Those factors include, inter alia, the degree of similarity between the signs at issue and the goods or services in question and also the strength of the earlier mark’s reputation and its degree of distinctive character, whether inherent or acquired through use (judgments of 24 March 2011, Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraph 64, and of 4 March 2020, EUIPO v Equivalenza Manufactory, C‑328/18 P, EU:C:2020:156, paragraph 57).

60 In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited). The relevant public for the assessment of the likelihood of confusion is composed of users likely to use both the goods and services covered by the earlier mark and those covered by the mark applied for (see judgment of 14 June 2018, Emcur v EUIPO – Emcure Pharmaceuticals (EMCURE), T‑165/17, not published, EU:T:2018:346, paragraph 18 and the case-law cited, upheld on appeal by order of 8 January 2019, Emcur v EUIPO, C‑533/18 P, not published, EU:C:2019:2).

61 In the present case, the Court will examine whether the Board of Appeal was right to find that there was a likelihood of confusion on the part of the relevant public. Given the conclusions drawn in paragraphs 53 and 54 above, that analysis will take account only of the services ‘hospitals’ in Class 44 and covered by the earlier mark.

62 The Board of Appeal found that all the goods in Class 1 and covered by the mark applied for were dissimilar to the related services covered by the earlier mark, with the exception of ‘stem cells for scientific purposes’ and ‘stem cells for research purposes’, which were similar to those services. It also found that all the goods in Class 5 and covered by the mark applied for were similar to the related services covered by the earlier mark and that all the goods in Class 10 and covered by the mark applied for were dissimilar to the related services covered by the earlier mark, with the exception of ‘medical apparatus’, which had at least a low degree of similarity with those services. Lastly, it found that all the services in Class 40 and covered by the mark applied for were similar to the related services covered by the earlier mark and that all the services in Class 44 and covered by the mark applied for were identical to the services ‘hospitals’ covered by the earlier mark.

63 The applicant submits that the Board of Appeal did not take sufficient account of the distribution channels of the goods and services at issue, failing which it would have found a lack of similarity between those goods and services.

65 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, inter alia, their nature, their intended purpose and 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 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).

66 As regards, more particularly, the complementarity of the goods and services, it must be recalled that goods or services which are complementary are those where there is a close connection between them, 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 responsibility for the production of those goods or provision of those services lies with the same undertaking. Thus, for the purposes of the assessment of whether the goods and services are complementary, the perception of that public of the importance of a product or service for the use of another product or service should, ultimately, be taken into account (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 22 and the case-law cited).

67 As a preliminary point, it must be stated that, while the intervener has requested that the notice of opposition be accepted in its entirety, it does not put forward any argument seeking to call into question the Board of Appeal’s assessment that some of the contested goods in Classes 1 and 10 and covered by the mark applied for are dissimilar to the related services covered by the earlier mark. Accordingly, the intervener’s head of claim cannot call into question the Board of Appeal’s assessment in that regard, which, moreover, neither the applicant nor EUIPO disputes.

68 As regards the ‘stem cells for scientific purposes’ and ‘stem cells for research purposes’ in Class 1 and covered by the mark applied for, the Court finds that those goods are different in nature from the services ‘hospitals’ in Class 44 and covered by the earlier mark. Apart from the fact that they consist of raw materials used for scientific and research purposes with a view to subsequent processing, they are also supplied by specialised manufacturers and sold via distribution channels dissimilar to those for the services ‘hospitals’. Nor is there any competitive relationship between those goods and services.

69 As regards the assessment as to whether there is a link of complementarity between the services ‘hospitals’ covered by the earlier mark and the contested goods in Class 1, it should be noted that, even if there is some link between the goods and services at issue, particularly in so far as stem cells may be used in the treatment of patients, that fact alone is not sufficient for them to be regarded as complementary in the present case.

70 The Board of Appeal’s finding that similarity can be ascertained from the fact that the ultimate purpose of those goods can overlap with their medical application cannot be accepted. Given the wide variety of goods capable of having a medical purpose, that factor is not sufficient to establish similarity of the goods and services at issue.

71 Therefore, the ‘stem cells for scientific purposes’ and the ‘stem cells for research purposes’ in Class 1 and covered by the mark applied for are different from the services ‘hospitals’ in Class 44 and covered by the earlier mark. The Board of Appeal was wrong therefore to find that they were similar.

72 As regards the contested goods in Class 5 and covered by the mark applied for, the conclusion that there is no similarity with the ‘hospitals’ in Class 44 and covered by the earlier mark must also be reached in respect of ‘veterinary preparations’, ‘stem cells for medical purposes; cellular function activating agents for medical purposes; stem cells for veterinary purposes’ and ‘surgical implants grown from stem cells’.

73 First, ‘stem cells for medical purposes; cellular function activating agents for medical purposes’ and ‘surgical implants grown from stem cells’ in Class 5 and covered by the mark applied for are different in nature from the services ‘hospitals’ in Class 44 and covered by the earlier mark. Moreover, it is not sufficiently apparent from the evidence in the file that those goods have the same origin and use the same distribution channels as the services ‘hospitals’.

74 Furthermore, the mere finding that those goods and services all pursue the same objective, in that, in the aggregate, they fall within the field of health, relate to the medical field and are intended for use in the context of therapeutic treatment is not sufficient to allow a conclusion that they are similar. Given the wide variety of goods likely to be used in a hospital, that factor cannot be sufficient to establish that the goods and services at issue are similar.

75 Secondly, the purpose of the ‘veterinary preparations’ and the ‘stem cells for veterinary purposes’ in Class 5 and covered by the mark applied for is to treat the health condition of animals and not humans. Their nature, purpose and method of use are, therefore, different from those of the services ‘hospitals’ in Class 44 and covered by the earlier mark.

76 The manufacturers and suppliers of those goods are also different from those of hospital services, with the result that they also differ in the channels and methods of distribution used for their marketing. Those goods and services are not, moreover, either in competition or complementary, since hospital services do not include administration of veterinary preparations or stem cells for veterinary purposes.

77 Therefore, it must be held that the Board of Appeal erred in finding that the goods and services mentioned in paragraph 72 above were similar.

78 However, as regards ‘pharmaceutical and sanitary preparations’ and ‘ophthalmic preparations; pharmaceutical preparations for peripheral nervous system; cardiovascular pharmaceutical preparations; sanitary preparations for medical use; pharmaceutical preparations and substances for the treatment of damaged skin and tissue; pharmaceutical preparations and substances for use in the fields of anaesthesia, oncology, urology and gynaecology’ in Class 5 and covered by the mark applied for, it is often the case that, in hospitals, hospital services include the administration of such pharmaceutical, sanitary or ophthalmic substances and preparations for medical or pharmaceutical purposes. Furthermore, oncology, urology and gynaecology are not only practised by specialist doctors in independent practice but also, notably, within hospitals.

79 Consequently, the contested goods referred to in paragraph 78 above have the same purpose and are complementary to the services ‘hospitals’ in Class 44 and covered by the earlier mark, with the result that the Board of Appeal was entitled to find that they were similar.

80 As regards the ‘medical apparatus’ in Class 10 and covered by the mark applied for, they include, inter alia, thermometers, blood pressure measuring apparatus or crutches, and are capable of being used during or after hospital treatment. Such goods are not, however, as a rule, obtained in hospitals, with the result that, as the Board of Appeal correctly found in paragraph 40 of the contested decision, those goods are similar to a low degree to the services ‘hospitals’ in Class 44 and covered by the earlier mark.

81 As regards the contested services in Class 40 and covered by the mark applied for, like the goods referred to in paragraph 78 above they are generally provided and administered within hospitals in the context of therapeutic treatments, with the result that the Board of Appeal did not err in finding that they were similar to the services ‘hospitals’ in Class 44 and covered by the earlier mark.

82 As regards the contested services in Class 44 and covered by the mark applied for, it must be held that ‘medical services relating to the removal, treatment and processing of stem cells; medical services relating to the removal, treatment and processing of human blood, umbilical cord blood, human cells, stem cells and bone marrow’ have a particular nature and purpose, in that they concern the transformation of the raw materials that are human blood, umbilical cord blood, human cells, stem cells and bone marrow. On account of those characteristics, those services are normally offered by institutes or laboratories specialising in those fields and are not marketed via the same distribution channels as the services ‘hospitals’ covered by the earlier mark.

83 If those services are intended for, or may be used in the context of, therapeutic treatment, the mere finding that all the services at issue pursue the same objective, in that they fall within the field of health and relate to the medical field, is not sufficient reason to conclude that they are identical.

84 Therefore, the Board of Appeal erred in finding, in paragraph 43 of the contested decision, that the services mentioned in paragraph 82 above and covered by the mark applied for were identical to the services ‘hospitals’ in Class 44 and covered by the earlier mark; the services at issue must be regarded as being different.

85 As regards ‘medical services; medical consultations; medical information; ophthalmology services; preparation and dispensing of medications; medical screening; dietary and nutritional guidance’ in Class 44 and covered by the mark applied for, they are characterised by a close connection with the services ‘hospitals’ in Class 44 and covered by the earlier mark.

86 Such services are generally provided when delivering the services ‘hospitals’ covered by the earlier mark and may be regarded as falling under the services ‘hospitals’, which constitute a broader category, with the result that those services must be regarded as identical.

87 Therefore, the Court concludes that the Board of Appeal did not err in finding that the services referred to in paragraph 85 above were identical to the services ‘hospitals’ in Class 44 covered by the earlier mark.

88 The case-law cited by EUIPO at the hearing is not such as to call into question the conclusions set out in paragraphs 71, 77 and 84 above. In the judgment of 14 June 2018, EMCURE (T‑165/17, not published, EU:T:2018:346, paragraphs 57 to 61), the Court found similarity between the ‘medical services; pharmacy advice; dentistry; healthcare services; veterinary services; veterinary assistance’ in Class 44 and covered by the mark applied for in that case with the ‘pharmaceutical products, veterinary products, preparations for healthcare, dietetic substances for medical purposes and food supplements’ in Class 5 and ‘nasal douches’ in Class 10 covered by the earlier marks. The Court based that finding on, inter alia, the fact that the goods and services at issue in that case pursued the same aim, were complementary and could share the same distribution channels, so that the relevant public might believe that the same undertaking was responsible for manufacturing the goods and providing the services.

89 Furthermore, in the judgment of 14 June 2018, EMCURE (T‑165/17, not published, EU:T:2018:346), the connection between the contested goods in Class 5 and the services in Class 42 resulted, inter alia, from the fact that the applicant had correctly argued that pharmaceutical companies were involved in research, development and innovation activities, with the result that the relevant public was entitled to believe that the responsibility for research services lay with the same undertaking as manufactured pharmaceutical products or that an undertaking offering the services in question was economically linked to the undertaking manufacturing those products. The same does not apply in the present case, proof of genuine use of the earlier mark for the ‘medical and bacteriology laboratories’ in Class 42 not having been provided.

90 In any event, if the Court was thus led to take into account the common objective of the goods and services at issue of providing care in the medical field (judgments of 18 October 2007, AMS v OHIM – American Medical Systems (AMS Advanced Medical Services), T‑425/03, EU:T:2007:311, paragraph 60, and of 7 November 2019, Intas Pharmaceuticals v EUIPO – Laboratorios Indas (INTAS), T‑380/18, EU:T:2019:782, paragraph 134), it did so for the purpose of comparing certain specific medical services and goods and not in order to draw a general conclusion that all goods and services falling generally within the health field are similar.

91 The Board of Appeal found that the signs at issue displayed a high degree of visual and phonetic similarity. It added that those signs were conceptually similar for the part of the relevant public that perceived the word element ‘HEALIOS’ as a misspelling of the word element ‘HELIOS’ and not similar, or were neutral, for the remaining part of that public.

92 The applicant submits that the graphic element of the signs at issue and the degree of attention of the relevant public were not sufficiently assessed when those signs were compared. The relevant public, having a high level of attention and generally paying greater attention to the beginning of a sign than to its end, makes a clear distinction between those signs, which, moreover, display only a low degree of similarity, or are even dissimilar.

94 First of all, if the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a word sign, he or she will break it down into elements which, for him or her, suggest a concrete meaning or which resemble words known to him or her (see, to that effect, judgments of 6 October 2004, VITAKRAFT, T‑356/02, EU:T:2004:292, paragraph 51, and of 13 February 2007, RESPICUR, T‑256/04, EU:T:2007:46, paragraph 57).

95 The relevant consumer will break down the word sign even if only one of its elements is familiar to him or her (see judgment of 24 March 2021, Creaton South-East Europe v EUIPO – Henkel (CREATHERM), T‑168/20, not published, EU:T:2021:160, paragraph 37 and the case-law cited).

96 Furthermore, assessment of the similarity between two signs means more than taking just one component of a composite sign and comparing it with another sign. On the contrary, the comparison must be made by examining each of the signs in question as a whole, which does not preclude the overall impression being dominated, in certain circumstances, by one or more of its components (see, to that effect, judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited).

97 In that regard, it is common ground between the parties that the earlier mark is a word mark composed of the element ‘HELIOS’ and that the mark applied for is a figurative mark consisting of the word element ‘Healios’, represented in a standard black font, the letter ‘h’ being in upper case, and a figurative element representing three half-moons yellow, orange and red in colour, rotating around each other.

98 Where a mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more easily refer to the goods in question by quoting their name than by describing the figurative element of the mark (judgment of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37; see, also, judgment of 15 June 2017, Fakro v EUIPO – Saint Gobain Cristalería (climaVera), T‑457/15, not published, EU:T:2017:391, paragraph 62 and the case-law cited).

99 In the present case, while the figurative element of the mark applied for as described in paragraph 97 above will not go unnoticed, the word element of that mark, because of its position, its font size and its bold, black type will, however, be visually more striking than that figurative element, which will be perceived by the relevant public as being purely decorative.

100 It follows that the word element ‘Healios’ is the dominant and most distinctive element of the mark applied for.

101 As regards the visual comparison of the signs at issue, it should be noted that they share the letters ‘h’, ‘e’, ‘l’, ‘i’, ‘o’ and ‘s’ and differ in the presence of the letter ‘a’ and the figurative elements of the mark applied for. The presence of an additional letter in the mark applied for and the use of the colours yellow, orange and red in the figurative elements of that mark are not, however, capable of offsetting the similarities arising from the presence of the combination of the letters ‘h’, ‘e’, ‘l’, ‘i’, ‘o’ and ‘s’, placed in the same order.

102 Therefore, the Board of Appeal did not err in finding, in paragraph 46 of the contested decision, a high degree of visual similarity between the signs at issue.

103 As regards the phonetic comparison of the signs at issue, it must be stated that they will differ slightly due to the presence of the letter ‘a’ in the word element ‘Healios’ of the mark applied for. However, even if the relevant German public might pronounce the three syllables ‘he’, ‘a’ and ‘lios’ within the mark applied for differently from the elements ‘he’ and ‘lios’ in the earlier mark, the additional syllable ‘a’ in the mark applied for is not sufficient to rule out a high degree of phonetic similarity between the signs at issue.

104 Therefore, the Board of Appeal did not err in finding, in paragraph 47 of the contested decision, a high degree of phonetic similarity between the signs at issue.

105 As regards the conceptual comparison of the signs at issue, the Court observes that the relevant public consists of scientists in the field of chemistry and biology or health professionals and, for some of the goods and services at issue, of the general public, in both cases demonstrating a high degree of attention, or both the general public and health professionals.

106 A significant part of the relevant public will be likely, on account of its medical and linguistic knowledge, to perceive the element ‘Heal’ within the mark applied for as referring to the field of healing and health care and the term ‘HELIOS’ of the earlier mark as referring to the Greek sun god. For that part of the relevant public, the signs at issue are conceptually different.

107 For the part of the relevant public which will not associate the element ‘Heal’ of the mark applied for with the field of healing or which will not perceive the element ‘HELIOS’ of the earlier mark as a reference to the Greek sun god, the signs at issue are not conceptually similar. Furthermore, for the part of that public which will not attribute a meaning to any of the signs at issue, no conceptual comparison is possible (see, by analogy, judgments of 22 June 2004, Ruiz-Picasso and Others, v OHIM – DaimlerChrysler (PICARO), T‑185/02, EU:T:2004:189, paragraph 55, and of 19 December 2019, Vins el Cep v EUIPO – Rotkäppchen-Mumm Sektkellereien (MIM NATURA), T‑589/18, not published, EU:T:2019:887, paragraph 56 and the case-law cited).

108 However, contrary to EUIPO’s submission, it is unlikely that a part of that public will perceive the word element ‘Healios’ of the mark applied for as a misspelling of the Greek word ‘helios’, even if that relevant public has knowledge of Greek mythology.

109 Accordingly, the signs at issue must be regarded as being conceptually different, or not similar, depending on whether the relevant public attributes a meaning to the word element ‘Heal’ of the mark applied for or to ‘HELIOS’ of the earlier mark, whereas the conceptual comparison is not possible with regard to the part of that public which will not attribute a meaning to any of the word elements of those signs.

110 The Board of Appeal incorrectly held, therefore, in paragraph 48 of the contested decision, that the signs at issue were conceptually similar for a part of the relevant public.

111 The Board of Appeal found that, in view of the average distinctiveness of the earlier mark and the similarity of the signs at issue, there was a likelihood of confusion on the part of the relevant public with regard to those goods and services covered by the mark applied for which were identical or similar to the related services covered by the earlier mark.

112 In its replies to the measures of organisation of procedure, the applicant submits, in essence, that the goods and services covered by the mark applied for are different from the services concerned covered by the earlier mark and that, even if they had to be regarded as similar to a low degree, there would be no likelihood of confusion, particularly because of the low degree of similarity between those signs and the high degree of attention of the relevant public.

114 A global assessment of the likelihood of confusion implies some interdependence of the factors taken into account and, in particular, of the similarity of the trade marks and the similarity of the goods or services concerned. Accordingly, a lesser degree of similarity between the goods or the services designated may be offset by a greater 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, 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 74).

115 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, 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).

116 As the Court has stated above, as regards the ‘stem cells for scientific purposes’ and ‘stem cells for research purposes’ in Class 1, the ‘veterinary preparations’, ‘stem cells for medical purposes’; cellular function activating agents for medical purposes; stem cells for veterinary purposes’ and ‘surgical implants grown from stem cells’ in Class 5, and the ‘medical services relating to the removal, treatment and processing of stem cells; medical services relating to the disposal, treatment and processing of human blood, umbilical cord blood, human cells, stem cells and bone marrow’ in Class 44 and covered by the mark applied for, one of the cumulative conditions necessary for the application of Article 8(1)(b) of Regulation No 207/2009 is not satisfied, with the result that there is no likelihood of confusion.

117 As regards the other goods and services concerned and covered by the mark applied for, the Court found that they were identical or similar, at least to a low degree, to the services ‘hospitals’ in Class 44 and covered by the earlier mark.

118 Nor is it disputed that the relevant public demonstrates a high level of attention, and the Board of Appeal rightly concluded that the signs at issue displayed a high degree of visual and phonetic similarity.

119 It is apparent from the case-law of the Court of Justice that the global assessment of the likelihood of confusion implies that conceptual differences between two signs at issue may counteract phonetic and visual similarities between them, provided that at least one of those signs has, from the point of view of the relevant public, a clear and specific meaning, so that the public is capable of grasping it immediately (see judgment of 4 March 2020, EUIPO v Equivalenza Manufactory, C‑328/18 P, EU:C:2020:156, paragraph 74 and the case-law cited). It should be noted that such is not the case here, in view of the different meanings that the relevant public is likely to attribute to the word elements ‘Healios’ and ‘HELIOS’ of the signs at issue, even their lack of meaning.

120 Since the earlier mark has an average degree of inherent distinctiveness, the relevant public will be likely to believe that the goods and services concerned come from the same undertaking, with the result that the Board of Appeal correctly found that there was a likelihood of confusion on the part of the relevant public in respect of ‘pharmaceutical and sanitary preparations’, ‘ophthalmic preparations; pharmaceutical preparations for peripheral nervous system; cardiovascular pharmaceutical preparations; sanitary preparations for medical use; pharmaceutical preparations and substances for the treatment of epidermal and tissue damage; pharmaceutical preparations and substances for use in the fields of anaesthesia, oncology, urology and gynaecology’ in Class 5; ‘medical apparatus’ in Class 10, all the services in Class 40, and ‘medical services’; ‘medical consultations’; ‘medical information’; ‘ophthalmological services’; ‘preparation and dispensing of medications’; ‘medical screening’; ‘dietary and nutritional guidance’ in Class 44 and covered by the mark applied for.

121 Consequently, in the light of the foregoing, the present action must be upheld in part and the contested decision annulled in so far as the Board of Appeal found a likelihood of confusion on the part of the relevant public in respect of ‘stem cells for scientific purposes’ and ‘stem cells for research purposes’ in Class 1; ‘veterinary preparations’; ‘stem cells for medical purposes’; ‘cellular function activating agents for medical purposes’; ‘stem cells for veterinary use’ and ‘surgical implants gown from stem cells’ in Class 5; and the ‘medical services relating to the removal, treatment and processing of stem cells’; medical services relating to the removal, treatment and processing of human blood, umbilical cord blood, human cells, stem cells and bone marrow’ in Class 44 and covered by the mark applied for.

123 Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, each party bears its own costs.

124 In the present case, since the action has been upheld in respect of only some of the goods and services covered by the mark applied for, each party must be ordered to bear its own costs.

1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 June 2019 (Case R 341/2018-5) in so far as it concerns the goods and services in Classes 1, 5 and 44 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 corresponding to the following description for each of those classes:

– Class 1: ‘Stem cells for scientific purposes’, ‘Stem cells for research purposes’;

– Class 5: ‘Veterinary preparations’, ‘Stem cells for medical purposes; Cellular function activating agents for medical purposes; Stem cells for veterinary purposes’, ‘Surgical implants grown from stem cells’;

– Class 44: ‘Medical services relating to the removal, treatment and processing of stem cells; Medical services relating to the removal, treatment and processing of human blood, umbilical cord blood, human cells, stem cells and bone marrow’;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Healios v EUIPO - Helios Kliniken (Healios) (EU trade mark - Judgment) [2021] EUECJ T-591/19 (22 September 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T59119.html Cite as: EU:T:2021:606, [2021] ETMR 62, ECLI:EU:T:2021:606, [2021] EUECJ T-591/19

Court of Justice of the European Communities (including Court of First Instance Decisions)