OPPOSITION No B 2 606 971

ForFarmers Corporate Services B.V., Kwinkweerd 12, 7241CW Lochem, The Netherlands (opponent), represented by Novagraaf Nederland B.V., Hoogoorddreef 5, 1101 BA Amsterdam, The Netherlands (professional representative)

a g a i n s t

Biochem Zusatzstoffe Handels- und Produktionsgesellschaft mbH, Küstermeyerstr. 16, 49393 Lohne, Germany (applicant), represented by Busse & Busse Patent- und Rechtsanwälte Partnerschaft mbB, Grosshandelsring 6, 49084 Osnabrück, Germany (professional representative).

On 23/05/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 606 971 is upheld for all the contested goods and services.

2.        European Union trade mark application No 14 419 766 is rejected in its entirety.

3.        The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against all the goods and services of European Union trade mark application No 14 419 766. The opposition is based on, inter alia, Benelux trade mark registration No 893 378. The opponent invoked Article 8(1)(b) EUTMR.

LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s Benelux trade mark registration No 893 378.

1. The goods and services

The goods and services on which the opposition is based are the following:

Class 1: Chemicals used in agriculture, horticulture and forestry (except fungicides, herbicides and preparations for destroying vermin); fertilizers.

Class 5: Veterinary preparations and substances; nutritional additives for animals for veterinary purposes; preparations for destroying vermin, fungicides, herbicides.

Class 31: Animal foodstuffs.

Class 35: Looking after the economic and commercial interests of members, being agricultural undertakings; lobbying for commercial purposes; organization of trade fairs, exhibitions and other similar events for commercial and/or promotional purposes; commercial information and business consultancy with respect to the agricultural sector; business management; business administration; office functions; advertising.

Class 36: Looking after the financial interests of members, being agricultural undertakings; financial affairs; insurance; financial information and consultancy with respect to the agricultural sector.

Class 42: Technical and scientific research; quality control services, in relation to the execution of a regulatory recognition criteria, including issuing recognitions, surveying of candidates for recognition awards, and giving information and consultancy to the candidates with regard to the regulatory recognition criteria; consultancy and information with respect to quality care, quality control and quality guarantee; issuing declarations, certificates and similar documents according to recognitions criteria.

Class 45: Looking after the legal interests of members, being agricultural undertakings; lobbying, other than for commercial purposes.

The contested goods and services are the following:

Class 5: Pharmaceutical and veterinary preparations; Animal feed additives.

Class 31: Fodder.

Class 35: Wholesaling and retailing and mail order, including via the Internet, of pharmaceutical and veterinary preparations, animal feed additives and foodstuffs for animals.

Class 44: Consultancy in the field of animal nutrition; Creation of nutrition plans for animals.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 5

The contested veterinary preparations are identically contained in both lists of goods.

A pharmaceutical preparation refers to any kind of medicine, that is, a substance or combination of substances for treating or preventing disease in people or animals. Therefore, the contested pharmaceutical preparations include, as a broader category the opponent’s veterinary preparations. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested animal feed additives are identical to the opponent’s nutritional additives for animals for veterinary purposes.

Contested goods in Class 31

The contested Fodder is included in the broad category of the opponent’s Animal foodstuffs. Therefore, they are identical.

Contested services in Class 35

Retail services concerning the sale of particular goods are similar to a low degree to those particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

Therefore, the contested retailing, including via the Internet, of pharmaceutical and veterinary preparations, animal feed additives and foodstuffs for animals are similar to a low degree to the opponent’s veterinary preparations; nutritional additives for animals for veterinary purposes; animal foodstuffs.

The same principles apply to services rendered in connection with other types of services that consist exclusively of activities revolving around the actual sale of goods, such as wholesale services, internet shopping or mail order services in Class 35. Therefore, the contested wholesaling and mail order, including via the Internet, of pharmaceutical and veterinary preparations, animal feed additives and foodstuffs for animals are similar to a low degree to the opponent’s veterinary preparations; nutritional additives for animals for veterinary purposes; animal foodstuffs.

Contested services in Class 44

The contested Consultancy in the field of animal nutrition are services that may be provided in the same point of sale, as are the opponent’s goods in Class 31, namely animal foodstuffs. Furthermore, the goods and services under comparison target the same public and they may be complementary. They are similar to a low degree.

The contested Creation of nutrition plans for animals are similar to a low degree to the opponent’s goods in Class 31, namely animal foodstuffs as they all may originate from the same undertaking. The goods and services under comparison target the same public and they may be complementary.

2. Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods and services found to be identical and similar to a low degree are directed at the public at large, for example the Class 31 goods, and at business customers with specific professional knowledge or expertise as regards some specialised goods and services. The public’s degree of attentiveness may vary from average to high, depending, in particular on the specialised nature, or terms and conditions of the purchased goods and services.

3. The signs

	4FARM!
Earlier trade mark	Contested sign

The relevant territory is the Benelux.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23).

The unitary character of the Benelux trade mark means that an earlier Benelux trade mark has identical protection in the relevant territories. Earlier Benelux trade marks may therefore be relied upon to challenge any subsequent application for a trade mark that would prejudice their protection, even if this is only in relation to the perception of consumers in part of the Benelux (see by analogy, 07/09/2006, C-108/05, Europolis, EU:C:2006:530).

In the present case, the Opposition Division finds it appropriate to focus the comparison of the signs on the French-speaking part of the relevant public.

The earlier mark is a figurative mark consisting of the word ‘FARMERS’ written in green lower case letters, except for the first capital letter ‘F’. Above the letter ‘A’, there is the number ‘4’ written in lighter shade of green. The letter ‘F’ is stylised having two upper lines depicted in two shades of green.

The element ‘FARMERS’ of the earlier mark, by virtue of its large size, is the dominant element as it is the most eye-catching within the sign.

The contested sign consists of the number ‘4’ and the word ‘FARM’ written in standard uppercase letters, followed by the exclamation mark.

In both marks the relevant public will perceive the numeral ‘4’. However, as a whole, the signs have no meanings for the relevant public and are, therefore, distinctive.

Visually, the signs coincide in the number ‘4’ and in the letter sequence ‘FARM*’. They differ in the additional final letters ‘ERS’ of the earlier sign, the stylisation and the colours applied in the earlier mark and in the exclamation mark of the contested sign. The signs differ in the arrangement of the elements of both signs, while in the earlier mark the number ‘4’ is written above the verbal element, in the contested sign the number is placed in front of the term ‘FARM’, which is followed by the exclamation mark.

Therefore, the signs are similar to a low degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘F-A-R-M’ and the numeral ‘4’, present identically in both signs. The pronunciation differs in the sound of the final letters in the earlier mark, namely ‘E-R-S’. A possible difference can be attributed to the exclamation mark in the contested sign, which would give a slightly different intonation to the pronunciation of the contested mark.

Therefore, the signs are aurally similar to an average degree.

Conceptually, although the signs as a whole do not have any meaning for the relevant public, the number ‘4’ included in both signs, will be perceived in both signs and to that extent the signs are similar to an average degree.  

The exclamation mark in the contested sign bears a concept of an exclamation. It leaves a specific impression on the consumer which can be remembered.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

It must be emphasised that likelihood of confusion implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between the goods or services. Accordingly, a lesser degree of similarity between the marks may be offset by a greater degree of similarity between the goods or services, and vice versa.

In the present case, the goods have been found identical and the services similar to a low degree. Furthermore, the signs are similar, due to the fact that they coincide in the number ‘4’ and the letter sequence ‘FARM*’. In this regard, it must be noted that the said elements constitute at the same time the only verbal elements of the contested sign.

The stylised letter ‘F’, the colours used and the arrangement of the elements of the earlier mark as well as the exclamation mark of the contested sign do not have a significant influence on the perception of the marks at issue by the average consumer. As a consequence, it is reasonable to assume that consumers would believe that the marks in question come from the same undertaking or, as the case may be, from economically-linked undertakings.

Considering all the above, there is a likelihood of confusion on the part of the French-speaking part of the public. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Therefore, the opposition is well founded on the basis of the opponent’s Benelux trade mark registration No 893 378. It follows that the contested trade mark must be rejected for all the contested goods and services.

As the earlier Benelux trade mark registration No 893 378 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods and services against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Liliya YORDANOVA

Marzena MACIAK

Volker MENSING

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.