BERRIS AGRICULTURAL CO., INC. vs. NORVY ABYADANG. G.R. No. 183404. October 13, 2010

BERRIS AGRICULTURAL CO., INC. vs. NORVY ABYADANG. G.R. No. 183404.
October 13, 2010
FACTS: Abyadang filed a trademark application with the IPO for the mark “NS D-10 PLUS” for use in connection
with Fungicide. Berris Agricultural Co., Inc. filed an opposition against the trademark citing that it is confusingly
similar with their trademark, “D-10 80 WP” which is also used for Fungicide also with the same active ingredient.
The IPO ruled in favor of Berries but on appeal with the CA, the CA ruled in favor of Abyadang.
ISSUE: Whether there is confusing similarity between the trademarks.
RULING: Yes. According to Section 123.1(d) of R.A. No. 8293, a mark cannot be registered if it is identical with a
registered mark belonging to a different proprietor with an earlier filing or priority date, with respect to: (1) the same
goods or services; (2) closely related goods or services; or (3) near resemblance of such mark as to likely deceive or
cause confusion.
Comparing Berris’ mark “D-10 80 WP” with Abyadang’s mark “NS D-10 PLUS,” as appearing on their
respective packages, one cannot but notice that both have a common component which is “D-10.” On Berris’
package, the “D-10” is written with a bigger font than the “80 WP.” Admittedly, the “D-10” is the dominant feature
of the mark. The “D-10,” being at the beginning of the mark, is what is most remembered of it. Although, it
appears in Berris’ certificate of registration in the same font size as the “80 WP,” its dominancy in the “D-10 80
WP” mark stands since the difference in the form does not alter its distinctive character.
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 the Holistic Test is 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.
Considering these striking similarities, predominantly the “D-10,” the buyers of both products, mainly
farmers, may be misled into thinking that “NS D-10 PLUS” could be an upgraded formulation of the “D-10 80 WP.”
Moreover, notwithstanding the finding of the IPPDG that the “D-10” is a fanciful component of the
trademark, created for the sole purpose of functioning as a trademark, and does not give the name, quality, or
description of the product for which it is used, nor does it describe the place of origin, such that the degree of
exclusiveness given to the mark is closely restricted,[46] and considering its challenge by Abyadang with respect to
the meaning he has given to it, what remains is the fact that Berris is the owner of the mark “D-10 80 WP,” inclusive
of its dominant feature “D-10,” as established by its prior use, and prior registration with the IPO. Therefore, Berris
properly opposed and the IPO correctly rejected Abyadang’s application for registration of the mark “NS D-10
PLUS.”
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.

BERRIS AGRICULTURAL CO., INC. vs. NORVY ABYADANG. G.R. No. 183404. October 13, 2010

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BERRIS AGRICULTURAL CO., INC. vs. NORVY ABYADANG. G.R. No. 183404. October 13, 2010

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BERRIS AGRICULTURAL CO., INC. vs. NORVY ABYADANG. G.R. No. 183404.

October 13, 2010

ISSUE: Whether there is confusing similarity between the trademarks.

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