Board of Appeal: no likelihood of confusion between UNOVET and INNOVET
The Board of Appeal has dismissed an opposition filed by an Italian company against the registration of the word mark UNOVET based on the earlier trademark INNOVET (Decision No 2038-o, 21 November 2022).
Background
On 17 May 2021, Estonian company AS Magnum Veterinaaria applied to register the word mark UNOVET in Class 5 (Application No M202100706). Innovet Italia Srl, an Italian company, opposed the application before the Board of Appeal based on the earlier word mark INNOVET in Class 5 (EUTM Registration No 015868706).
Opponent’s arguments
The opponent argued that there was similarity and a risk of association between the marks. Therefore, the application should be refused under Article 10(1)(2) of the Estonian Trademark Act, according to which legal protection cannot be granted to a trademark which is similar to an earlier trademark which has been given legal protection for identical or similar goods or services, if there is a likelihood of confusion on the part of the consumers, which includes a likelihood of association with the earlier trademark.
The opponent alleged that the trademarks UNOVET and INNOVET had a high degree of similarity both visually and phonetically, as the signs were both word marks with the same structure (‘NOVET’). Phonetically, the difference in the initial letters of the marks (‘U’/‘I’) might remain unnoticeable to consumers, as both signs begin with vowels with a soft pronunciation. Semantically, both marks did not have a clear meaning that would allow the local consumer to distinguish between them. Since the only difference between the marks was essentially their first letter, consumers might assume that the mark UNOVET was a variation of the mark INNOVET or a sign belonging to the same series.
Applicant’s arguments
The applicant stated that UNOVET and INNOVET were not visually similar. Although both trademarks ended with ‘_NOVET’,the elements ‘UNO + VET’ and ‘INNO + VET’ could be visually distinguishable. In the applicant’s opinion, this distinction was justified by the fact that ‘vet’ is a commonly known abbreviation in Estonia, meaning ‘veterinary’. Since both trademarks relate to veterinary products, the existence of such an abbreviation within the marks was understandable and foreseeable for consumers. The applicant alleged that veterinary products are bought by highly qualified and knowledgeable consumers (generally veterinarians), who would definitely associate the element ‘vet’ with veterinary products.
The applicant further pointed out that the Court of Justice of the European Union has confirmed the principle that consumers pay more attention to the beginning of trademarks than to the end. Since the dominant and distinctive initial parts of the trademarks (‘UNO’ and ‘INNO_’) were sufficiently different visually, the overall visual impression was also different.
The applicant also alleged that a phonetic similarity resulting from the common part ‘_NOVET’ was unlikely. The applicant was of the opinion that the consumer would not pronounce the marks as ‘U-NOVET’ and ‘IN-NOVET’; on this basis, no phonetic similarity arose. Further, the pronunciation, rhythm and intonation of the syllables were sufficiently different.
While, taken as a whole, the trademarks UNOVET and INNOVET did not have a direct meaning, the elements ‘UNO’, ‘INNO’ and‘VET’ had, in the applicant’s opinion, a certain meaning which the average consumer, who is reasonably well informed, would understand or with which they would form certain associations.
Decision
The board fully agreed with the views expressed by the applicant. From a semantic point of view, the difference between the trademarks was particularly clear in the board’s opinion, and the semantic aspect, in turn, had an impact on the visual and phonetic perception of the trademarks.
According to the board, the element ‘inno’ was most likely to be perceived by the consumer as a reference to the term‘innovative’ or ‘innovation’, as an equivalent prefix or abbreviation. The element ‘uno’ was likely to be perceived by the consumer as a basic Italian word meaning the number one. The board agreed with the applicant that, although knowledge of the Italian language is not widespread among Estonian consumers, the meaning of this simple and common word was very likely to be known. Regardless of whether the consumer perceived the element ‘inno’ as a word referring to ‘innovation’ and ‘uno’ as a word referring to the number one, or perceived them as corresponding to male names, the elements ‘inno’ and ‘uno’ were different from a semantic point of view.
The element ‘vet’ was neither dominant nor distinguishable in either of the trademarks, and both trademarks contained other elements that were more distinctive to the consumer and were located at the beginning of the marks, thus making them more apparent and memorable. Therefore, the element ‘vet’ could not be a factor in the likelihood of confusion assessment.
In view of the above, the consumer would perceive the trademark INNOVET, as a whole, as referring to innovative veterinary medicine. The trademark UNOVET would be associated with the meaning of ‘one veterinary medicine’, which may in turn be perceived as an indication by the proprietor of the trademark that the veterinary products offered would be the consumer’s first,preferred choice compared to products used in the treatment of animals offered by other producers. In those circumstances, the board was of the opinion that the meaning of the trademarks INNOVET and UNOVET were clearly different.
The board concluded that, although the goods in Class 5 covered by the marks were identical, the parties’ trademarks, as a whole, were sufficiently different. In particular, given the semantic difference between the marks, it was unlikely that the marks would be confused or associated.
Anneli Kapp, Patendibüroo KÄOSAAR
This article first appeared in WTR Daily, part of World Trademark Review, in February/2023. For further information, please go to www.worldtrademarkreview.com.
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