Background
Coloplast A/S (Coloplast) applied to register an international trademark SENSURA MIO in class 10 for ostomy bags and parts and fitting therefor (not included in other classes) and medical devices, namely, receptacles for the collection of excretions from the human body in relation to ostomy. The mark is based on a Danish trademark registration on 14 August 2013.
The Patent and Registration Office (PRH) denied the registration (decision 10 June 2015) because the mark is liable to be confused with an earlier European Union trademark (EUTM) registration MIO (no. 8175473), registered on 5 April 2011. The EUTM MIO is registered in class 10 for infusion and injection devices for administering drugs; parts and fittings for the aforesaid goods.
Coloplast filed an appeal to the Market Court against the PRH's decision.
The Market Court issued its decision 430/16 on 8 July 2016.
Coloplast filed an appeal to the Market Court against the PRH's decision.
The Market Court issued its decision 430/16 on 8 July 2016.
According to section 14 paragraph 1 sub-paragraph 9 of the Finnish Trademarks Act (7/1964), a trademark shall not be registered if it is liable to be confused with a European Union trademark within the meaning of section 57 that has been registered on the basis of an earlier application.
According to section 6 paragraph 1 of the Act, trade symbols shall be regarded under this Act as liable to cause confusion only if they apply to goods of identical or similar type.
The court referred to the established case-law and stated the following:
In assessing the similarity of the goods or services concerned, all the relevant factors relating to those goods or services themselves 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. The comparison of the goods or services should also focus on their distribution channels and their usual origin.
The applied mark SENSURA MIO covers the following goods in the class 10: ostomy bags and parts and fitting therefor (not included in other classes) and medical devices, namely, receptacles for the collection of excretions from the human body in relation to ostomy.
The earlier EUTM MIO is registered in class 10 for infusion and injection devices for administering drugs; parts and fittings for the aforesaid goods.
The court stated that the goods are medical apparatus or instruments. The goods are not in competition and their intended purpose is not the same. However, both goods are part of health care functions and in that sense the goods are similar and their usual origin and their distribution channels are similar. The court stated that the goods are, to some extent, similar.
The court assessed then the relevant public. The court referred to the case-law of the Court of Justice (CJ). CJ has ruled that:
For the purposes of that global appreciation, the average consumer of the category of products concerned is deemed to be 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 C-342/97 Lloyd, para 26.]
The court stated that the relevant public consists, on the one hand, of medical or health professionals. The other part of the relevant public, emphasized by the court, consists of consumers who are using ostomy bags and other accessories related to ostomy. The court stated that the attentiveness of these consumers is considerably higher.
The likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case. The global appreciation of the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The perception of marks in the mind of the average consumer of the type of goods or services in question plays a decisive role in the global appreciation of the likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. [See C-251/95 SABEL, paras 22-23.]
The applied mark SENSURA MIO consists of the words "sensura" and "mio". The court considered that the word "SENSURA" is the most dominant and distinctive element of the mark. However, the word "MIO" is not completely insignificant.
The earlier EUTM MIO consists of the word "mio" and, according to the court, the mark has a normal distinctiveness.
The two marks have a visual difference based on the amount of the words described above. Nevertheless, the court stated that the marks have, to some extent, a visual similarity.
The two marks have also an aural difference based on the amount of the words described above. The court considered that the relevant Finnish public is paying more attention on the beginning of the marks. Therefore, the word element "SENSURA" is the most dominant element when assessing the pronunciation of the applied mark SENSURA MIO. The court stated that there is a low degree of aural similarity.
The words "sensura" or "mio" do not have any clear meaning among the relevant Finnish public. The word "mio" is Italian. The court stated that the relevant Finnish public does not, per se, understand Italian. However, the relevant Finnish public might still understand the meaning of the word "mio" because it has similarities with the corresponding Swedish word "min" and the corresponding English word "mine". Therefore, there is a low degree of conceptual similarity.
Based on the assessment above, the court stated that the conflicting marks are, to some extent, similar.
It was now time to draw some conclusions. The court repeated that the goods are, to some extent, similar. The earlier EUTM MIO consists of the word "mio" and is thus wholly included in the applied mark SENSURA MIO. However, the word element SENSURA is the most dominant element of the applied mark SENSURA MIO. The court concluded that, after taking into account the differences and the high level of attention of the relevant public, the applied mark SENSURA MIO is not confusable with the EUTM MIO.
It was now time to draw some conclusions. The court repeated that the goods are, to some extent, similar. The earlier EUTM MIO consists of the word "mio" and is thus wholly included in the applied mark SENSURA MIO. However, the word element SENSURA is the most dominant element of the applied mark SENSURA MIO. The court concluded that, after taking into account the differences and the high level of attention of the relevant public, the applied mark SENSURA MIO is not confusable with the EUTM MIO.
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