OPPOSITION No B 2 753 815
Arvensis Agro, S.A., Ctra. Castellón, Km. 212, 50740, Fuentes de Ebro, Zaragoza, Spain (opponent), represented by Elzaburu, S.L.P., Miguel Angel, 21, 28010 Madrid, Spain (professional representative)
a g a i n s t
Albaugh UK Ltd., 1 Northumberland Avenue, Trafalgar Square, London WC2N 5BW, United Kingdom (applicant).
On 12/06/2017, the Opposition Division takes the following
1. Opposition No B 2 753 815 is upheld for all the contested goods.
2. European Union trade mark application No 15 411 978 is rejected in its entirety.
3. The applicant bears the costs, fixed at EUR 620.
The opponent filed an opposition against all the goods of European Union trade mark application No 15 411 978. The opposition is based on European Union trade mark No 13 419 106 and Spanish trade mark registration No 3 533 250. 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 European Union trade mark No 13 419 106.
- The goods and services
The services on which the opposition is based are the following:
Class 35: Sale of chemicals used in agriculture, manures, fertilisers, amino acids for phytosanitary purposes, micronutrients for application to crops, stimulating activators for plants, preparations for destroying vermin, fungicides, herbicides.
The contested goods are the following:
Class 1: Fertilisers, and chemicals for use in agriculture, horticulture and forestry.
Class 5: Pest control preparations and articles.
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 1
Retail services concerning the sale of particular goods are similar (to a low degree) to these particular goods (05/05/2015, T-715/13, Castello (fig.) / Castelló y Juan S.A. (fig.) et al., EU:T:2015:256, § 33). Although the nature, purpose and method of use of these goods and services are not the same, it should be noted that they have some similarities, as they are complementary and the services are generally offered in the same places as those where the goods are offered for sale. Furthermore, they target the same public.
The chemicals used in agriculture are the same as the chemicals for use in agriculture, horticulture and forestry. This is because the same chemical product, which might come from the same manufacturer, with the same chemical characteristics, nature and purpose, can be used in both horticulture and forestry.
Therefore, the contested fertilisers, and chemicals for use in agriculture, horticulture and forestry are similar to a low degree to the opponent’s services.
Contested goods in Class 5
A similar reasoning applies to the contested goods in Class 5, which are pest control preparations and articles.
The goods of the opponent´s services (chemicals used in agriculture, manures, fertilisers, amino acids for phytosanitary purposes, micronutrients for application to crops, stimulating activators for plants, preparations for destroying vermin, fungicides, herbicides) require a few processing steps to be considered finished products, such as pest control preparations (the contested goods). Such chemicals may be considered to already have the same inherent purpose. Furthermore, the same (agro-) chemical companies may produce the semi-processed goods, as well as the final product (08/10/2012, R 1631/2012-1, QUALY / QUALIDATE, § 27-28). Therefore, pest control preparations and articles are similar to a low degree to the opponent’s services.
- 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.
The conflicting goods primarily target farmers and gardeners; the latter group includes both professionals and members of the general public. All consumers will pay an above average degree of attention when purchasing these goods, since the purpose of each product is rather specific, in terms of which pest they control, or, in the case of fertiliser, which is the most appropriate to use in certain conditions. Furthermore, all consumers are aware of the potential health risks these products may present to the person working with them or to others, at least when applied incorrectly.
As regards the general public, it must be assumed that purchases of fertilisers will be infrequent and will usually be made with professional assistance at specialist outlets. Consumers would be expected to pay a high degree of attention because these products can be hazardous; the same applies for business customers, who will also pay a high degree of attention.
- The signs
Earlier trade mark
The relevant territory is the European Union.
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 earlier figurative trade mark consists of the word ‘arvensis’, written in lower case characters, and geometric figurative elements, whereas the contested mark is a word mark, ‘Arvens’.
Furthermore, when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37; decisions of 19/12/2011, R 233/2011-4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011-5, Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).
The earlier mark has no elements that could be considered clearly more distinctive or more dominant than other elements.
Visually, the signs coincide in ‘arvens’. The contested sign is included in the earlier mark. However, the earlier sign has a different ending, ‘–is’. The stylisation and figurative elements of the earlier mark have no counterparts in the contested sign. As the contested sign is a word mark, it is the word that is protected, and not its written form.
Therefore, the signs are visually similar to an average degree.
Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sounds of the letters [arvens], present in both signs. The pronunciation differs in the sounds of the last letters of the earlier mark, [is].
Therefore, the signs are aurally highly similar.
Conceptually, neither ‘ARVENSIS’ nor ‘ARVENS’ has a meaning for the public in the relevant 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.
- 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 in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.
- Global assessment, other arguments and conclusion
In the present case, the goods are similar to a low degree.
The Court has set out the essential principle that evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17). In the present case, the low degree of similarity between the goods and services, together with the degree of visual and aural similarity between the marks, will have to be taken into account when assessing the likelihood of confusion between the marks.
The earlier mark’s inherent distinctiveness was found to be normal.
Moreover, it should also be taken into account that 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).
Taking account of the above, as well as of the visual and aural similarities between the signs due to the inclusion, in full, of the contested sign ‘Arvens’ at the beginning of the earlier mark’s word element, and taking into consideration the interdependence of the relevant factors, the Opposition Division concludes that the relevant public in the European Union could reasonably believe that the contested goods, even if similar only to a low degree to the opponent’s services, come from the same undertaking or from economically linked undertakings.
Even a high degree of attention for some of the goods would not eliminate the likelihood that the consumer will think that the contested mark is in some way economically linked to the earlier mark.
Considering all the above, the Opposition Division finds that there is a likelihood of confusion and therefore the opposition is well-founded on the basis of the opponent’s European Union trade mark registration.
It follows from the above that the contested trade mark must be rejected for the goods.
As earlier right European Union trade mark No 13 419 106 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent, namely the Spanish trade mark registration No 3 533 250 (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).
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
Loreto URRACA LUQUE
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.