OPPOSITION No B 3 043 182

Biosa Danmark Aps, Sonnerupvej 41, Dragebjerggård, 3300 Frederksværk, Denmark (opponent), represented by Patrade A/S, Ceresbyen 75, 8000 Aarhus C, Denmark professional representative)

a g a i n s t

VitalAnalyse, Wedels vei 1, 0287 Oslo, Norway (applicant).

On 30/11/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 043 182 is upheld for all the contested goods.

2. European Union trade mark application No 17 470 824 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 470 824 for the word ‘BiosaVital’. The opposition is based on international trade mark registration designating the European Union No 1 280 989 for the word ‘BIOSA’. 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.

a) The goods and services

The goods (and services) on which the opposition is based are, inter alia, the following:

Class 1: Compost; soil conditioning preparations; chemical compositions for water treatment; preparations of microorganisms, other than for medical and veterinary use.

Class 31: Agricultural, horticultural and forestry products as well as grains (not included in other classes); live animals; fresh fruits and vegetables; seeds; natural plants and flowers; foodstuffs and fodder for animals; malt.

The contested goods are the following:

Class 1: Cultures of microorganisms, other than for medical and veterinary use; manures with added microorganisms; microorganisms for use in stimulation of plant growth; mixtures of chemicals and microorganisms for increasing the nutritional value of animal fodder [other than for veterinary use]; compost activators; organic fertilizers.

Class 31: Animal foodstuffs.

Contested goods in Class 1

Micro organisms are microscopic organisms that comprises either a single cell, cell clusters, or no cell at all. Microbiological culture, or microbial culture, is a method of multiplying microbial organisms by letting them reproduce in predetermined culture media under controlled laboratory conditions. Micro organisms are very diverse (they include bacteria, fungi, archaea, and protists; microscopic plants (green algae); and animals such as plankton) and live in all parts of the biosphere where there is liquid water, including soil, hot springs, on the ocean floor, high in the atmosphere and deep inside rocks within the Earth's crust. They are used in a wide range of different areas, such as biological treatment of sewage and industrial waste effluent and nutrient recycling in ecosystems as they act as decomposers, improving the nutrition and fertility of the soil and increasing plants’ health.

Consequently, all the contested goods in Class 1 (i.e. cultures of microorganisms, other than for medical and veterinary use; manures with added microorganisms; microorganisms for use in stimulation of plant growth; mixtures of chemicals and microorganisms for increasing the nutritional value of animal fodder [other than for veterinary use]; compost activators; organic fertilizers) are to be considered identical to the opponent’s broad category of preparations of microorganisms, other than for medical and veterinary use in Class 1, either because they include, are included in, or overlap with, these earlier goods of the opponent in Class 1.

Contested goods in Class 31

Animal foodstuffs are identically included (despite the use of a slightly different wording) in both lists of goods in Class 31.

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 case at hand, the goods found to be identical are both every day consumer goods such as foodstuffs for animals and specialised goods (Class 1 goods). They are therefore directed at the public at large as well as at professionals.

The level of attention can vary from low to high depending on the goods and their specialised nature or purpose, the frequency of purchase and because certain specialised goods will often be selected carefully.

c) The signs

BIOSA	BiosaVital
Earlier trade mark	Contested sign

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).

Both signs are word marks. The earlier mark consists of the string of letters ‘BIOSA’; the contested sign consists of the string of letters ‘BiosaVital’.

The common element ‘BIOSA’ as a whole is meaningless for at least a substantial part of the relevant public throughout the relevant territory.

The verbal component of the contested sign ‘Vital’ is meaningful for inter alia the English-speaking part of the public in the relevant territory. As regards the contested sign, although it is composed of one verbal element, it must indeed be noted that consumers, when perceiving a verbal sign, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58). In the present case, this is further enhanced by the fact that the first letter of the identical letter string ‘Biosa’ as well as the first letter of the additional string of letters ‘Vital’, in the contested sign, is depicted in upper case. Consequently, amongst others the English-speaking part of the relevant public will perceive the English term ‘vital’ (as the adjective referring to something relating to life or to something necessary for the success or continued existence of something) in the contested sign, preceded by the meaningless letter string ‘Biosa’.

To take into account the semantic content of this meaningful element in the conceptual comparison of the signs, the Opposition Division finds it appropriate to focus the comparison on the English-speaking part of the public, such as consumers in the United Kingdom, Ireland and Malta, as well as consumers who have sufficient knowledge of English as a foreign language.

As seen above, the earlier mark is meaningless as a whole and thus of normal distinctiveness; the same goes for the initial component ‘Biosa’ in the contested sign. The string of letters ‘Vital’ will be perceived as detailed above and thus be associated with life and vitality; hence this element is allusive to, if not descriptive of, a characteristic of the goods at stake (namely, it refers the result of the goods in question, namely that these goods give strength and vitality to the organism, the soil etc.). Consequently, this element is at best of limited distinctiveness (if any) in relation to the goods at issue.

Also, account must be taken of the fact that consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because 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.

Conceptually, neither of the signs has a meaning as a whole. Although the additional verbal component ‘Vital’ of the contested sign will evoke a concept, it is not sufficient to establish any significant conceptual dissimilarity, as this element is non-distinctive (and thus not able to indicate the commercial origin) or at best allusive (and thus in any event not capable to create a significant conceptual distance). The attention of the relevant public will be attracted by the common fanciful verbal element ‘Biosa’, which has no meaning and in relation to which a conceptual comparison is not possible, so that the conceptual aspect cannot significantly influence the assessment of the similarity of the signs.

Visually and aurally, both marks are word marks. They are similar to the extent that they coincide in the letters ‘Biosa’, present identically in both signs and which forms the entire earlier mark and the beginning (and normally distinctive element) of the contested sign. On the other hand, they differ in the ending letters ‘Vital’ in the contested sign, which however is of, at best, limited distinctiveness. Therefore, the signs are visually and aurally highly similar.

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 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.

e) Global assessment, other arguments and conclusion

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or

economically linked undertakings.

In the present case the goods are identical and the signs are visually and aurally highly similar. The earlier mark is entirely comprised in the contested sign, of which it also forms the beginning (which will first catch the attention of the public) as well as the more (if not only) distinctive element. The only differing verbal element ‘vital’ is at most weak (if not devoid of distinctiveness) for the reasons stated above in section c) of this decision and it has, therefore, a very limited impact on the relevant public.

Despite the high degree of attention for part of the goods, the relevant consumers under analysis will not be able to distinguish the signs and thus the commercial origin of the goods in question solely on the basis of the difference of the non-distinctive or (at most) weak element. Moreover, due to the identical distinctive element ‘Biosa’ at the beginning of the signs, the public is likely to be misled that the goods in question come from the same or economically linked undertakings.

Account is taken of the fact 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, § 26). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

In the present case, it is indeed highly conceivable that the relevant consumer (whether professional or not) will perceive the contested sign as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods that it designates.

Considering all the above, there is a likelihood of confusion at least on the part of the English-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 international trade mark registration designating the European Union No 1 280 989. 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.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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

Aldo BLASI

Edith Elisabeth VAN DEN EEDE

Francesca CANGERI SERRANO

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.