I. FACTS AND PROCEDURE - (1.) ON 19.4.1999 Mr. Philippe Mailhebiau, "the applicant", filed application No. 1149095 to register the sign "E.O.B.B.D." as a trade mark in classes 3, 5 and 42. The applicant was represented by David Keltic Associates, authorised to represent others before the Office. The application was published in Community Trade Marks Bulletin No. 03/2000 of 10.1.2000. ON 133.2000 B. Braun-Dexon, S.A., "the opponent", filed a notice of opposition to the application. The opponent was represented by Ms Adclaida Ponti Sales, authorised to represent others before the Office. The opposition is based on Spanish trade mark registration No. 946 750 of the word mark "BED". It was filed on 6.6.1980 and registered on 21.4.1982 for a range of goods in class 5. The opponent has proved he is the current owner of the registered mark by filing a copy of the registration certificate. The opponent bases his opposition on all the goods which are covered by his registration namely: "Pharmaceutical and veterinary products and preparations, disinfectants; menstruation pants, hygienic pads and tampons; biological products for pharmaceutical use; dietetic substances for medical use for babies and sick people; materials for dressings; material for stopping teeth, dental wax; air fresheners; preparations for destroying vermin, herbicides, fungicides; medicinal additives for forage; chemical products for medical use" (class 5). The opponent does not direct his opposition against all of the goods and services of the application but only against the following goods: "Pharmaceutical; veterinary and sanitary preparations; medicinal oils; essential oils for medical use; aromatherapy oils for medical use; dietetic substances adapted for medical use food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides; herbicides" (class 5). The grounds of the opposition are those of Article 8(1)(b) of Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community trade mark ('CTMR') (OJ OHIM 1/95.p.52). ON 4.7.2000 the applicant was notified of the opposition which had been given number B 251 910. English was established as the language of the proceedings. The original cooling-off period of two months was extended for four months. The adversarial part of the proceedings began on 5.1.2001. Both parties filed observations and evidence within the time limits given by the Office. The Office considers that it has sufficient information and now gives a ruling on the opposition. II. ARGUMENTS OF THE PARTIES The opponent claims that there is a likelihood of confusion because of the similarity of the marks, especially from a phonetic point of view, and because the is goods covered by the two marks are identical or very similar. The applicant argues that the two marks are different enough, both visually and phonetically, to prevent any likelihood of confusion. III. DECISION A. ON THE ADMISSIBILITY OF THE OPPOSITION The opposition fee has been paid in accordance with the Regulation. The opposition has been entered within the time limit, form and conditions prescribed. Consequently, the opposition is admissible. B. ON THE SUBSTANCE According to Article 8(1)(b) CTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered: If because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark. Comparison of goods The opponent's goods are: "Phannaceutical and veterinary products and preparations, disinfectants; menstruation pants, hygienic pads and tampons; biological products for pharmaceutical use; dietetic substances for medical use for babies and sick people; materials for dressings; material for stopping teeth, dental wax; air fresheners; preparations for destroying vermin, herbicides, fungicides; medicinal additives for forage; chemical products for medical use" (class 5). The applicant's contested goods are: "Pharmaceutical; veterinary and sanitary preparations; medicinal oils; essential oils for medical use; aroma therapy oils for medical use; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides; herbicides" (class 5). They are identical in their majority and very similar as regards those of them which arc not exactly reproduced in the two lists of goods, such as medicinal oils; essential oils for medical use; aromatherapy oils for medical use, whose medical purpose makes them similar to the opponent's pharmaceutical and veterinary products and prepa rations.
(2.) Comparison of signs The average consumer is deemed to be reasonably well informed and reasonably observant and circumspect (see Judgment of the Court of Justice, Case C-210/96, Gut Springenheide and Rudolf Tusky v. Oberkreisdirektor des Kreises Steinfurt, [1998], OJ OHIM 3/99 p. 575, paragraph 31; Judgment of the Court of Justice, Case C-342/97 Lloyd Schuhfabrik Meyer v. Klijsen Handel, BV [1999], OJ OHIM 12/99, paragraph 26). The consumers' level of attention is likely to vary according to the category of goods or services involved, and he normally perceives a mark as a whole and does not proceed to analyse its details. Trade marks have to be compared by making a global appreciation of the visual, aural or conceptual similarity between them bearing in mind, in particular, their distinctive and dominant components (Judgment of the Court of Justice, Case C-342/97 Lloyd Schuhfabrik Meyer v. Klijnsen Handel "Lloyd/Loint's", OJ OHIM 12/99, paragraph 25). The trade marks to be compared are the following: BBD (Earlier mark) and (CTMA). Any conceptual comparison seems to be irrelevant, as no clear meaning can be connected with either part of the marks in question. From a phonetic point of view, although the signs contain the same three letters in the same order, they are likely to be pronounced with all their letters BE - BE - DE - and E - O - BE - BE - DE, according to Spanish rules of pronunciation. The rest of the elements of the later mark are unpronounceable graphical features. A visual comparison of the two trade marks shows that they contain the same three letters in the same order. The figurative elements in the later mark, contribute to visually differentiating the marks. However, as the opponent claims, they are figurative elements closely related to the goods in question. Therefore, the dominant elements of the marks are the two respective acronyms, BED and EOBDD. If it cannot be denied that there is a certain level of visual and phonetic similarity owing to the common letters BBD, the Office considers that the earlier mark is a three letter-mark and that the first parts of the marks in question are different, the difference being represented by the two vowels EO, which are totally different from the following letters. Considering the above reasons and the fact that the letters composing the five-letter CTMA are to be seen as equally dominant and that a mark has to be considered as a whole, the Office concludes that the marks are dissimilar overall. Conclusion The risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion within the meaning of Article 8(1)(b) CTMR (see Judgment of the Court of Justice, Case C-251/95 Sabel BV v. Puma AG, Rudolf Dossler Sport [1997] OJ OHIM 1/98, p.89, paragraphs 16 to 18; Judgment of the Court of Justice, Case C-39/97 Canon Kabushiki Kaisha v. Metro-Goldwyn-Mayer Inc. [1998] OJ OHIM 12/98, p.1421, paragraph 30). The appreciation of the likelihood of confusion on the part of the public depends on numerous elements and it must be appreciated globally, taking into account all factors relevant to the circumstanced of the case (see Lloyd Schuhfabrik, paragraph 18; Sabel, paragraph 22). Taking into account all the relevant factors of the case, it is concluded that, considering the dissimilarity of the marks, in spite of the identity and similarity of the goods, there is no likelihood of confusion on the part of the public in the territory in which the earlier mark is protected, i.e., Spain in connection with the goods in question. C. COSTS According to Article 81(1) CTMR, the losing party in opposition proceedings must bear the fees incurred by other party, as well as all costs. According to Rule 94(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing the CTMR ('IR') (OJ OHIM 2-3/95, p.258), the apportionment of costs it dealt with in the decision on the opposition. Since the opponent is the losing party in the opposition proceedings, he must bear all costs incurred by the other party in the course of these proceedings. ON THESE GROUNDS, THE OFFICE DECIDES: 1. Opposition number B 251 910 is rejected in its entirety. 2. The costs are to be borne by the opponent.;