OPPOSITION Nо B 3 103 347

Stoller Europe, S. L. U., C/ Max Planck, 1 Elche Parque Empresarial, 03203 Elche, Spain (opponent), represented by Padima, Explanada de España, nº 11, Piso 1º, 03002 Alicante, Spain (professional representative)

a g a i n s t

Agrido Science Ltd., Borisova 8 Str., 7000 Ruse, Bulgaria (applicant), represented by Georgi Yankov, Borisova 8 Str., Fl. 3, 7000 Ruse, Bulgaria (professional representative).

On 27/01/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 103 347 is upheld for all the contested goods.

2. European Union trade mark application No 18 115 408 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 (in Class 1) of European Union trade mark application No 18 115 408 ‘Bud hunter’ (word mark). The opposition is based on European Union trade mark registrations No 14 496 814 ‘BUD POWER’ (word mark) and No 18 041 724 ‘BUD FEED’ (word mark). 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 registration No 14 496 814 ‘BUD POWER’.

a) The goods

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

Class 1: Manures; phosphates; nitrogenous fertilisers; chemical substances for preserving foodstuffs; industrial chemicals.

Class 5: Herbicides; fungicides; disinfectants; sanitary preparations for medical purposes; preparations for destroying noxious animals.

The contested goods are the following:

Class 1: Liquid fertilisers; nutritional substances [fertilizers] in liquid form for use in agriculture; seaweeds [fertilisers]; seaweeds [fertilizers]; nitrogenous fertilizer; nitrogenous fertilizers; nitrogenous fertilisers; organic fertilisers; organic fertilizers; fish meal fertilisers; fish meal fertilizers; fertilisers; fertilizers; fertilizers, lawn fertilizers, grass fertilizers; manganese fertilizer; phosphates [fertilizers]; phosphates [fertilisers]; potassium fertilizers; chemical fertilizers; natural fertilizers; mixed fertilizers; inorganic fertilizers; hydroponic fertilizers; bone meal [fertilizer]; fertiliser for soil and potting soil; fertilisers for soil and potting soil; fertilisers, and chemicals for use in agriculture, horticulture and forestry; growing media, fertilizers and chemicals for use in agriculture, horticulture and forestry; plant hormones (phytohormones); nutrients for plants; chelated substances for use as supplements for plant foliage; growing media for plants; amino acids for industrial purposes; amino acids for scientific purposes.

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.

Nitrogenous fertilizer(s) (mentioned three times in the applicant’s list of goods) are identically included in both lists of goods.

Manure is defined as ‘animal faeces, sometimes mixed with chemicals, that is spread on the ground in order to make plants grow healthy and strong; any material, esp. chemical fertilizer, used to fertilize land’ (information extracted from Collins English Dictionary on 20/01/2021 at https://www.collinsdictionary.com/dictionary/english/manure). The contested liquid fertilisers; nutritional substances [fertilizers] in liquid form for use in agriculture; seaweeds [fertilisers]; seaweeds [fertilizers]; organic fertilisers; organic fertilizers; fish meal fertilisers; fish meal fertilizers; fertilisers; fertilizers; fertilizers, lawn fertilizers, grass fertilizers; manganese fertilizer; phosphates [fertilizers]; phosphates [fertilisers]; potassium fertilizers; chemical fertilizers; natural fertilizers; mixed fertilizers; inorganic fertilizers; hydroponic fertilizers; bone meal [fertilizer]; fertiliser for soil and potting soil; fertilisers for soil and potting soil; fertilisers, and chemicals for use in agriculture, horticulture and forestry; growing media, fertilizers and chemicals for use in agriculture, horticulture and forestry; nutrients for plants; chelated substances for use as supplements for plant foliage; growing media for plants are at least similar to the opponent’s manures (if not even identical) because these goods coincide at least in nature and purpose. They may also coincide in method of use. Moreover, they have the same usual commercial origin and target the same users via the same distribution channels.

The contested amino acids are produced, for example, by protein hydrolysis or chemical synthesis. However, chemicals are ‘substances that are used in a chemical process or made by a chemical process’ (information extracted from Collins English Dictionary on 07/01/2020 at https://www.collinsdictionary.com/dictionary/english/chemical). Therefore, and contrary to the applicant’s arguments, the contested amino acids for industrial purposes could be a product of a chemical process or reaction. Therefore, they are included in, or overlap with, the broad category of the opponent’s industrial chemicals. Therefore, they are identical.

The contested amino acids for scientific purposes are similar to the opponent’s industrial chemicals. They could have the same nature, as explained above, and they are usually produced by the same manufacturers and the public they target overlaps.

Finally, the contested plant hormones (phytohormones) are similar to the opponent’s manures. They have the same nature, methods of use, distribution channels and relevant public. They are usually produced by the same manufacturers.

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 identical or similar are directed at the public at large (e.g. home gardeners) as well as business customers (e.g. professional farmers) with specific professional knowledge or expertise.

Although, as claimed by the opponent and supported by a compilation of screenshots of supermarket’s websites submitted as Annex 1, the goods in question are not necessarily expensive, the degree of attention of the public cannot be considered as low, since these goods may contain specialised additives, which determine their properties and effect, and may potentially have a hazardous impact on nature or the environment. Therefore, the general public, as well as the specialised public, is considered to show a degree of attention that varies from average to higher than average (25/06/2016, R 1182/2015‑5, HORTY / Horti-Cote et al., § 18-20; 02/07/2015, R 2724/2014‑1, PLANT HEALTH CARE (FIG. MARK), § 18).

c) The signs

BUD POWER	Bud hunter
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).

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Both signs are word marks and, as such, have no elements that could be considered clearly more dominant (eye-catching) than other elements.

The common element ‘BUD’ of the signs is meaningless in certain territories, for example in those countries where English is generally not understood, such as Bulgaria, the Czech Republic, Greece, Spain, Italy, Latvia, Lithuania or Poland. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the part of the public in those countries that does not understand English. Since the verbal element ‘BUD’ is meaningless for this part of the public, it will be perceived as distinctive.

The second element ‘POWER’ of the earlier mark will most likely be associated with a clear meaning by the majority, if not the entire relevant public, because it is a widespread English word commonly used throughout the relevant territory (10/12/2013, T‑467/11, 360° Sonic Energy, EU:T:2013:633, § 47). In the context of the relevant goods, the element ‘POWER’ will be regarded as referring to ‘strength’ (information extracted from Cambridge Dictionary on 20/01/2021 at https://dictionary.cambridge.org/dictionary/english/power). Because it implies that the goods give growing power, strength to the plants or that the goods themselves are strong and effective, the element ‘POWER’ is laudatory and hence weak for all the goods at issue.

As a result, the element ‘BUD’ is the most distinctive element of the earlier mark.

The second element ‘hunter’ of the contested sign is meaningless for the relevant public and therefore distinctive to a normal degree for the contested goods. Bearing in mind that the element ‘Bud’ is also meaningless and distinctive for the relevant public, the contested sign has no element that could be considered more distinctive than the other.

Visually, the marks share the element ‘BUD’, which appears at the beginning of both signs. Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark, as they read from left to right. Moreover, the marks have the same structure – being made of two words – and they have very similar lengths – eight versus nine letters. The marks differ in their second elements, ‘POWER’ in the earlier mark and ‘hunter’ in the contested sign, which, however, include the same ending – ‘ER’. Considering the limited distinctiveness of the second element ‘POWER’ of the earlier mark, it is concluded that the signs are visually similar to an average degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the signs at issue have the same phonetic structure since they are both two-word marks – ‘BUD’ and ‘POW-ER’ versus ‘Bud’ and ‘hun-ter’– which comprise the same number of syllables, namely three. The first syllable ‘BUD’ is identically presented and pronounced in both signs. The last syllable of the earlier mark corresponds to the ending of the last syllable of the contested sign. Therefore, the signs are aurally similar to an average degree.

Conceptually, although the public in the relevant territory will perceive the meaning of the earlier mark as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually 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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as normal despite the presence of the weak element ‘POWER’.

e) Global assessment, other arguments and conclusion

The Court has stated that likelihood of confusion must be appreciated globally, taking into account all the factors relevant to the circumstances of the case; this appreciation depends on numerous elements and, in particular, on the degree of recognition of the mark on the market, the association that the public might make between the two marks and the degree of similarity between the signs and the goods and services (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

Furthermore, 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 covered are from the same or economically linked undertakings.

The earlier trade mark has a normal degree of distinctiveness. The contested goods are identical or similar to the opponent’s goods. The relevant public are the public at large and professionals. The degree of attention of the relevant public is deemed to vary between average and higher than average. However, 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).

The signs are visually and aurally similar to an average degree. Furthermore, if they are conceptually not similar, the fact remains that this is because the earlier sign includes a laudatory and hence weak differing element ‘POWER’, while the contested mark will not be associated with any meaning at all.

Due to the identical first and distinctive element in the conflicting signs, the relevant public may perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49). Although the signs are not conceptually similar, as explained above, the concept in the earlier mark is based on a laudatory element, which is not sufficient to rule out the likelihood that consumers will perceive them as originating from the same undertaking or economically linked undertakings.

The above findings are not altered by the applicant’s reference to the registration of EUTM No 15 991 664 ‘BUD IGNITOR’, since the existence of one further trade mark registration comprising the same common element ‘BUD’ cannot lead by itself to the conclusion that such trade marks peacefully coexist on the market or that the consumers have become accustomed to trade marks including this element.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public in Bulgaria, the Czech Republic, Greece, Spain, Italy, Latvia, Lithuania or Poland and therefore the opposition is well founded on the basis of the opponent’s European trade mark registration No 14 496 814 ‘BUD POWER’.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to those of the earlier trade mark.

The opponent has also based its opposition on European Union trade mark registration No 18 041 724 ‘BUD FEED’, registered for goods in Classes 1 and 5. As the earlier European Union trade mark registration No 14 496 814 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 right invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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, 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

Marine DARTEYRE

Birgit FILTENBORG

Francesca DRAGOSTIN

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.