Judgment of the General Court (Fifth Chamber) of 22 September 2021 –
Healios v EUIPO – Helios Kliniken (Healios)

(Case T‑591/19)

(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))

EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Criteria for assessment – Requirement of solid and objective evidence

(Council Regulation No 207/2009, Art. 42(2); Commission Regulation No 2868/95, Art. 1, Rule 22(2) and (3))

(see paras 30-32, 38)

2.	EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Probative value of the evidence – Criteria for assessment (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 39)

EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Similarity of the marks concerned – Criteria for assessment – Composite mark

(Council Regulation No 207/2009, Art. 8(1)(b))

(see paras 57, 94-96, 98)

EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Criteria for assessment

(Council Regulation No 207/2009, Art. 8(1)(b))

(see paras 58, 59, 114, 115)

EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Assessment of the likelihood of confusion – Determination of the relevant public – Attention level of the public

(Council Regulation No 207/2009, Art. 8(1)(b))

(see para. 60)

EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Similarity between the goods or services in question – Criteria for assessment – Complementary nature of the goods or services

(Council Regulation No 207/2009, Art. 8(1)(b))

(see paras 65, 66)

EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Figurative mark Healios and word mark HELIOS

(Council Regulation No 207/2009, Art. 8(1)(b))

(see paras 116-118, 120, 121)

EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Similarity of the marks concerned – Whether conceptual differences may neutralise visual or aural similarities – Conditions

(Council Regulation No 207/2009, Art. 8(1)(b))

(see para. 119)

Re:

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.

Operative part

The Court:

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’;

2.	Dismisses the action as to the remainder;

3.	Orders each party to bear its own costs.