The Ecuadorian IP Office rejected three oppositions filed on the grounds of trademark BLACK DAYS against one of the largest Ecuadorian drug store chains for BLACK FYBECA DAYS AND DESIGN in classes 03, 05, and 44.
The IP Office verified the ownership of the BLACK DAYS mark to protect general services in class 35. When analyzing the marks in conflict, the IP Office used the standard rules regarding similarities in the phonetic, orthographic, and conceptual fields, as well as considering whether the design or the word has more prominence in the mark. The IP Office concluded that even though there is a coincidence in the terms BLACK, and DAYS, it did not find confusing similarities when analyzing the whole impression of the marks. The examiner further stated that the term FYBECA in the mark clearly identifies the commercial origin of the products or services.
When analyzing the possible similarity of the goods or services, the IP Office determined that BLACK DAYS broadly describes services in class 35 as promotion and advertising of different products. It did not find a connection with products in class 03 and 05 or services in class 44 claimed by BLACK FYBECA DAYS.
In the decision regarding classes 35 vs 03, the IP Office also found that there are other marks such as BLACK SEVEN, BLACK WEEK, 24/7 BLACK FRIDAY, and VIVE BLACK FRIDAY WOW in the name of different registrants.
Finally, in all three decisions, the IP Office granted the registration of BLACK FYBECA DAYS, with a disclaimer for BLACK or DAYS, apart from the mark as shown.
This decision seems to be issued by taking the standard analysis between marks and the connection between products. If appeals were filed, we would expect the Appeal Board (Organo Colegiado de Derechos Intelectuales – OCDI) to issue a more thorough analysis of the main issues such as the scope of protection of a mark in class 35, effectiveness of a class 35 mark to protect advertising of products or the descriptiveness of BLACK DAYS in relation to promotions or advertisement of products.