Aceto Agricultural Chemicals Corp. v. Bayer Aktiengesellsschaft, 2012 WL 3095060 (S.D.N.Y. 2012)

The Southern District of New York ruled in favor of a plaintiff in its request for a declaratory judgment that its use of the PROFINE 75 mark in connection with an herbicide product did not infringe Bayer’s PROLINE mark applied to a fungicide. Applying the eight Polaroid factors for likelihood of confusion, the court found that Aceto’s PROFINE 75 mark, in spite of the PROLINE mark’s moderate strength as a suggestive mark, did not have a credible likelihood of confusion with the senior mark. Though the strength of the PROLINE mark favored Bayer’s counterclaim of trademark infringement, the court still found a low likelihood of consumer confusion, based mostly on its findings of (1) a lack of similarity in the product packaging of the two products, (2) a large separation in the geographic areas in which each product was marketed, (3) a complete absence of evidence of actual confusion between the marks, (4) precautions taken by Aceto before registering the mark, precluding a finding of bad faith, (5) the high quality of Aceto’s allegedly-infringing product, (6) and the care taken by the highly sophisticated consumers of PROFINE 75 products. The court found the final factor to be especially important in its ruling, finding that “these farmers invest significant amounts of money in crop protection products each growing season and depend on their crop yields for their livelihood.” As such, they were unlikely to be confused by the mere similarities in spelling and sound between the two marks.