B17 Berris Agricultural Co. Inc. v. Abyadang, GR 183404, 13 October 2010, Second Division, Nachura (J) - SIASOCO

B17 Berris Agricultural Co. Inc. v.
Abyadang, GR 183404, 13 October
2010, Second Division, Nachura [J]
On January 16, 2004, respondent Norvy A. Abyadang (Abyadang), proprietor of NS Northern Organic
Fertilizer, with address at No. 43 Lower QM, Baguio City, filed with the Intellectual Property Office (IPO) a
trademark application for the mark "NS D-10 PLUS" for use in connection with Fungicide (Class 5) with
active ingredient 80% Mancozeb. The application, under Application Serial No. 4-2004-00450, was given due
course and was published in the IPO e-Gazette for opposition on July 28, 2005.
On August 17, 2005, petitioner Berris Agricultural Co., Inc. (Berris), with business address in Barangay
Masiit, Calauan, Laguna, filed with the IPO Bureau of Legal Affairs (IPO-BLA) a Verified Notice of
Opposition4 against the mark under application allegedly because "NS D-10 PLUS" is similar and/or
confusingly similar to its registered trademark "D-10 80 WP," also used for Fungicide (Class 5) with active
ingredient 80% Mancozeb. The opposition was docketed as IPC No. 14-2005-00099.
Director Estrellita Beltran-Abelardo (Director Abelardo) of the IPO-BLA Issued order declaring
Respondents mark is confusingly similar.
Respondent upon issuance of the decree file a motion for reconsideration, which petitioner
opposed. The MR is denied.
Aggrieved, Abyadang filed an appeal on August 22, 2006 with the Office of the Director General, Intellectual
Property Philippines (IPPDG), the appeal is also denied.
Petition for review to Ca is filed by Respondent. Petition is granted. CA sides with Respondent
Petitioner appeals to the Supreme Court
SC
In determining similarity and likelihood of confusion, jurisprudence has developed tests—the Dominancy Test
and the Holistic or Totality Test. The Dominancy Test focuses on the similarity of the prevalent or dominant
features of the competing trademarks that might cause confusion, mistake, and deception in the mind of the
purchasing public. Duplication or imitation is not necessary; neither is it required that the mark sought to be
registered suggests an effort to imitate. Given more consideration are the aural and visual impressions created
by the marks on the buyers of goods, giving little weight to factors like prices, quality, sales outlets, and
market segments
In contrast, the Holistic or Totality Test necessitates a consideration of the entirety of the marks as applied to
the products, including the labels and packaging, in determining confusing similarity. The discerning eye of
the observer must focus not only on the predominant words but also on the other features appearing on both
labels so that the observer may draw conclusion on whether one is confusingly similar to the other
Applying the Dominancy Test, it cannot be gainsaid that Abyadang’s "NS D-10 PLUS" is similar to
Berris’ "D-10 80 WP," that confusion or mistake is more likely to occur. Undeniably, both marks pertain to the
same type of goods – fungicide with 80% Mancozeb as an active ingredient and used for the same group of
fruits, crops, vegetables, and ornamental plants, using the same dosage and manner of application. They also
belong to the same classification of goods under R.A. No. 8293. Both depictions of "D-10," as found in both
marks, are similar in size, such that this portion is what catches the eye of the purchaser. Undeniably, the
likelihood of confusion is present.
This likelihood of confusion and mistake is made more manifest when HOLISTIC TEST s applied, taking into
consideration the packaging, for both use the same type of material (foil type) and have identical color
schemes (red, green, and white); and the marks are both predominantly red in color, with the same phrase
"BROAD SPECTRUM FUNGICIDE" written underneath. 1awphi1
Considering the buyers of the product are mainly farmers, they may be misled that "NS D-10
PLUS" could be an upgraded formulation of the "D-10 80 WP
Verily, the protection of trademarks as intellectual property is intended not only to preserve the goodwill and
reputation of the business established on the goods bearing the mark through actual use over a period of time,
but also to safeguard the public as consumers against confusion on these goods
Petition is GRANTED

B17 Berris Agricultural Co. Inc. v. Abyadang, GR 183404, 13 October 2010, Second Division, Nachura (J) - SIASOCO

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B17 Berris Agricultural Co. Inc. v. Abyadang, GR 183404, 13 October 2010, Second Division, Nachura (J) - SIASOCO

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B17 Berris Agricultural Co. Inc. v.

Abyadang, GR 183404, 13 October

2010, Second Division, Nachura [J]

Petitioner appeals to the Supreme Court

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