Döhler beats Kerry Group in EU trademark appeal
German ingredients supplier Döhler has prevailed over Irish food company Kerry Group in a trademark dispute at the EU General Court.
Last week’s ruling means that Kerry Group’s Luxembourg subsidiary has been blocked from registering two EU trademarks covering a ‘taste modulation’ system.
Kerry Luxembourg filed to register two EU trademarks in 2016 for ‘TasteSense’ and ‘TasteSense by Kerry’.
On the group’s website, TasteSense is described as a set of “masking and mouthfeel solutions” which uses taste modulation technology to manage the texture and aftertaste of food and drinks.
The trademark applications covered goods like flavour improvers, chemical food additives, and fruit and vegetable extracts.
Döhler opposed the applications, arguing that the marks would cause confusion with the German company’s MultiSense brand, protected by an EU trademark covering a wide range of goods and services including artificial sweeteners.
The European Union Intellectual Property Office (EUIPO) denied registration of the Kerry Group marks, finding there was a likelihood of confusion with the Döhler brand in non-English speaking parts of the EU.
Kerry Group appealed, and subsequent proceedings focused on the non-English speaking public in Spain and Poland as these were the two examples cited by the EUIPO in its original decision.
The EUIPO had concluded that, as the word ‘sense’ had no meaning in Spanish or Polish, consumers were more likely to focus on that shared element of the marks than ‘multi’.
Kerry Group argued on appeal that the Spanish and Polish populations had “substantial knowledge” of English as a second language and would be able to understand the terms ‘sense’ and ‘taste’, allowing them to clearly differentiate between the brands.
On appeal, the General Court ruled that the EUIPO was wrong on the Polish public’s understanding of ‘sense’, but correct about the Spanish public.
Polish consumers would consider ‘sense’ to be an equivalent to the Polish word ‘sens’, the court found.
But, it added, consumers were not likely to make a semantic link between ‘sense’ and any word in the Spanish language.
“It follows that, visually and phonetically, the signs at issue are similar, at the very least as far as the Spanish public is concerned,” the judgment read.
The court dismissed Kerry Group’s appeal and ordered it to pay costs.
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