EU General Court rejects Super Bock Group TM appeal

Portugese beer maker Super Bock Group (SBG) has failed to stop the registration of a trademark which it said would infringe one of its own.

In a decision handed down yesterday, December 12, the EU General Court said SBG could not stop Polish company Agus from registering the trademark ‘Crystal’ on the basis of an earlier trademark, because the goods covered by both marks are not in competition with each other.

In 2016, Agus, which makes and sells dehydrated foods, filed an application to register ‘Crystal’ in class 30 for goods such as coffee, tea, foodstuffs made from cereals and cocoa.

SBG said it would infringe its earlier trademark ‘Cristal’ which is registered in class 32 for non-alcoholic beverages and beers.

In 2017, the opposition was rejected by the European IP Office’s Opposition Division, finding that the goods covered by the earlier trademark and applied-mark are not similar. SBG appealed, but the Board of Appeal upheld the earlier decision.

In its decision this week, the General Court said the fact that the goods covered by Agus’ mark and SBG’s trademark are sold side by side in commercial establishments is not sufficient to establish a similarity, or that they are in competition.

SBG argued that the goods covered by its earlier trademark were in competition with those covered by the earlier trademark. It said the relevant public, the Portuguese, has the habit of going to a restaurant or bar and during a meal, drinking a beer and ordering a coffee.

“A person who wishes to consume beer will consider coffee, tea or cocoa as a ‘viable option’ for a socialising function. It said this means the goods have the same nature and can be substituted for one another,” SBG said.

“However, the mere fact that beer as well as coffee, tea, chocolate beverages and cocoa are served in a restaurant or bar does not make it possible to conclude that a consumer who goes to such an establishment will regard a coffee, a tea, a chocolate beverage or a cocoa as an alternative to a beer,”  the General Court said.

It said the beverages covered by the marks were dissimilar in nature and differ in their intended purpose.

“Whereas beer is intended to quench thirst … and is consumed cold in the context of festive, leisure and social activities … that is not the case with regard to beverages covered by the applied-for mark which are consumed hot, but are not intended to quench thirst,” the court said.

It also said the presence, or absence, of alcohol was a significant difference between the goods, and the fact they may be consumed in the same place does not affect this finding.

SBG also argued that the goods covered by its mark are complementary to those covered by the applied-for mark because there are breweries that add coffee or tea to beers.

But the General Court said the mere fact that some breweries do this is not sufficient to establish that coffee or tea and beer are complementary goods.

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