OPPOSITION DIVISION

OPPOSITION No B 2 828 690

Agronutrition, 3 avenue de l'Orchidée – Parc Activestre, 31390 Carbonne, France

(opponent), represented by Bringer IP, Immeuble Atria, 8 Esplanade Compans

Caffarelli, 31000 Toulouse, France (professional representative)

a g a i n s t

Probelte S.A.U, Calle Antonio – Belmonte Abellan Nº 3 – 7, 30100 Murcia, Spain

(applicant), represented by Almudena Abellán Pérez, Plaza de la Fuensanta nº 2-

REASONS

The opponent filed an opposition against all the goods of European Union trade mark

application No 15 850 051 for the word mark ‘ABINE’. The opposition is based on

European Union trade mark registration No 15 715 824 for the word mark ‘ABINEL’.

The opponent invoked Article 8(1)(b) EUTMR.

PRELIMINARY REMARKS

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95

have been repealed and replaced by Regulation (EU) 2017/1001 (codification),

Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU)

2017/1431, subject to certain transitional provisions. All the references in this

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.

Decision on Opposition No B 2 828 690 page: 2 of 5

a) The goods

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

Class 1: Fertilisers, and chemicals for use in agriculture, horticulture and forestry;

on the ground that they appear in the same or different classes under the Nice

Classification.

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.

The contested goods pest control preparations and articles; fungicides; herbicides;

acaricides; insecticides are goods that may be used for protecting crops and, in

general, plants in agriculture and horticulture from harmful pests and disease. These

goods and the opponent’s manure have a similar purpose, method of use and end

has to be rejected. They are considered similar to a low degree.

b) 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 found to be similar to a low degree are directed at the

public at large and partly also at a specialised public, such as agronomists and

farmers, with specific professional knowledge or expertise.

The degree of attention may vary from average to high depending on the specific

Decision on Opposition No B 2 828 690 page: 3 of 5

c) The signs

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).

Neither “ABINEL” nor “ABINE” has a meaning in relation to the goods in question for

the relevant public and are therefore distinctive.

Visually, both signs are word marks. They coincide in the letters “A-B-I-N-E”, which

form the entire contested sign. They differ only in the additional letter “L” at the end of

the earlier mark. Therefore, the signs are visually highly similar.

Aurally, irrespective of the different pronunciation rules in different parts of the

relevant territory the pronunciation of the marks coincides in the sound of the five

territory. Since a conceptual comparison is not possible, the conceptual aspect does

not influence the assessment of the similarity of the signs.

As the signs have been found similar in at least one aspect of the comparison, the

examination of likelihood of confusion will proceed.

d) 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

Decision on Opposition No B 2 828 690 page: 4 of 5

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on

market, the association which can be made with the registered mark, the degree of

EU:C:1999:323, § 18; 11/11/1997, C 251/95, Sabèl, EU:C:1997:528, § 22).

large or professionals with a degree of attention ranging from average to high. The

The signs are visually and phonetically similar to a high degree. The marks differ only

in the final letter “L” of the earlier mark which is not shared by the contested mark.

That is not sufficient to clearly differentiate between the marks. Consumers generally

tend to focus on the first element of a sign when being confronted with a trade mark.

This is justified by the fact that the public reads from left to right, which makes the

part placed at the left of the sign (the initial part) the one that first catches the

attention of the reader.

Furthermore the average consumers rarely have the chance to make a direct

comparison between different marks, but must trust in their imperfect recollection of

them (22/06/1999, C 342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

of confusion implies some interdependence among 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 goods or services may be

offset by a greater degree of similarity between the marks, and vice versa. In the

present case, this principle is of particular importance considering that the signs

under comparison are similar to a high degree.

Considering all the above, there is a likelihood of confusion on the part of the public

and the opposition is well founded on the basis of the opponent’s European Union

trade mark registration No 15 715 824. It follows that the contested trade mark must

be rejected for all the contested goods.

COSTS

According to Article 109(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.

Decision on Opposition No B 2 828 690 page: 5 of 5

costs to be paid to the opponent are the opposition fee and the costs of

According to Article 67 EUTMR, any party adversely affected by this decision has a

right to appeal against this decision. According to Article 68 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 for

appeal must be filed within four months of the same date. The notice of appeal will be

deemed to have been 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 Article 109(8) EUTMR

(former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be