The General Court of the European Union has ruled in case T‑817/19, Olimp Laboratories sp. z o.o v EUIPO.
This case concerns an attempt by Olimp Laboratories to register the following European trademark in class 05 – Pharmaceutical preparations, Pharmaceutical preparations for the treatment of eye diseases and conditions; Medical preparations; Eye drops, Preparations for ocular lubrication, Medicated eye-washes, Eye lotions for medical use; Topical anti-infective substances for the treatment of infections of the eye; Cachets for pharmaceutical purposes, Capsules for medicines, Lozenges for pharmaceutical purposes, Lozenges for pharmaceutical purposes; Medicines for human purposes, Tonics [medicines], Medicines for medical purposes, Adjuvants for medical purposes, Medicaments in liquid form; Ointments for pharmaceutical purposes, Eye ointment for medical use; Eye pads for medical use, Eye compresses; analgesic and anti-inflammatory preparations; Medicinal herbs.
Against this application an opposition was filed by OmniVision GmbH based on an earlier European trademark for HYLO-VISION in class 05 – Dietary supplements and dietetic preparations; Medical and veterinary preparations and articles.
Both the EUIPO Opposition division and the Board of Appeal upheld the opposition finding the signs similar enough.
The decision was appealed. Olimp Laboratories argued that the earlier mark is devoid of distinctive character. The element VISION is used by many producers of such products. On the other hand HYLO refers to sodium hyaluronate.
The General Court disagreed and dismissed the appeal.
The Court found the goods as identical. In terms of the signs, the Court considered that the stylistic elements of the mark applied for are purely decorative. The figurative element of an eye and the word HYDRO have low distinctive character. In addition, VISION is descriptive for the goods at hand.
The Court found the claim for relation between HYLO and sodium hyaluronate as not proved and insufficient.
When it comes to the comparison between the marks, the Court considered them visually and phonetically similar. Conceptual similarity was found only in regard to the VISION element but not for the signs as a whole.
The difference between the mark in the letters L and DR was not enough to overcome the similarity.
The EUIPO decision was upheld