OPPOSITION No B 3 107 366

Ascenza Agro, Av. Rio Tejo, Herdade Das Praias, 2910-442 Setúbal, Portugal (opponent), represented by Natacha Alves Batista, Av. Rio Tejo, Herdade das Praias, 2910-440 Setúbal, Portugal (professional representative)

a g a i n s t

EuroChem Group AG, Baarerstrasse 37, 6300 Zug, Switzerland (applicant), represented by Isenbruck Bösl Hörschler Partg MBB, Seckenheimer Landstr. 4, 68163 Mannheim, Germany (professional representative).

On 14/12/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 107 366 is upheld for all the contested goods.

2. European Union trade mark application No 18 117 923 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 18 117 923 ‘stimulUS’. The opposition is based on Portuguese trade mark registration No 541 831 ‘STIMULUS’. The opponent invoked Article 8(1)(a) and (b) EUTMR.

PRELIMINARY REMARK

Although the opponent's name as indicated in the notice of opposition is different from that indicated in the registration certificate of the earlier mark invoked, the opponent claimed in a document filed together with the notice of opposition that the two entities are in fact the same, just the name was changed. Opposition Division notes that the former name of the company registered under EUIPO ID 760331, was SAPEC AGRO S.A. This company name was changed to ASCENZA AGRO S.A. following a request for recordal of a name change submitted to the Office on 26/02/2018 and recorded on 07/03/2018. Therefore, even if the name of the owner of the earlier mark as reflected on the Portuguese register is different from that of the opponent in the present proceedings, it concerns the same legal entity as shown by the Office records and the opposition must thus be considered to be substantiated.

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

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

Class 1: Chemicals used in agriculture, horticulture and forestry; fertilizers.

The contested goods are the following:

Class 1: Chemicals used in agriculture, horticulture and forestry; fertilizers, chemical products for fertilizers.

Chemicals used in agriculture, horticulture and forestry; fertilizers are identically included in both lists of goods.

The contested chemical products for fertilizers are contained in and, therefore, identical to the opponent’s broad category of chemicals used in agriculture, horticulture and forestry.

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 are directed both at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention is considered to be above average since the goods at issue are chemicals which may have a significant effect on health and environment.

c) The signs

STIMULUS	stimulUS
Earlier trade mark	Contested sign

The relevant territory is Portugal.

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 consist of the same verbal element, ‘STIMULUS’ only in different cases. This word as such is meaningless in Portuguese, however, it can safely be presumed that the public will perceive it as alluding to the Portuguese equivalent ‘estímulo’. In the absence of any direct relation to the goods, this verbal element has average distinctiveness.

Visually, the signs coincide in their only element and they differ in the use of a combination of lowercase and uppercase letters in the contested sign. Since the capitalization of certain letters in the contested sign is not a usual way of writing, it will attract consumer’s attention to a certain extent. However, the fact remains that the signs are composed of the same letter string and lack any other differentiating element or feature. Overall, the signs are highly similar.

Aurally, given the coincidence in the signs’ only verbal element, the signs are identical.

Conceptually, as explained above, both signs will be understood as referring to the same, distinctive concept. Therefore, they are identical.

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 covered are from the same or economically linked undertakings.

In the present case, the goods are identical, and the signs are identical aurally and conceptually and highly similar visually. As explained above, the contested sign reproduces the same verbal element composing the earlier mark, and the irregular capitalisation of two letters in the contested sign will not preclude the relevant public from perceiving that fact. Consumers will, therefore, be led to believe that the identical goods come from the same or linked undertakings.

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

Therefore, the opposition is well founded on the basis of the opponent’s Portuguese trade mark registration invoked. It follows that the contested trade mark must be rejected for all the contested goods.

Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(1)(a) EUTMR.

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

Rasa BARAKAUSKIENÉ

Ferenc GAZDA

Biruté SATAITE-GONZALEZ

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.