General Court puts cornet designs on ice
The European General Court has granted two applications declaring that designs covering ice cream cornets and the box for the cornets are invalid.
In two separate rulings, the General Court annulled decisions made by the European Union Intellectual Property Office’s (EUIPO) Third Board of Appeal in September 2016.
Turkey-based chocolate company Şölen Çikolata Gıda Sanayi ve Ticaret had appealed against the decisions to the General Court.
Elka Zaharieva, a Bulgaria-based individual, had registered two Community designs featuring the words ‘Bobo cornet’ in 2013.
The following year, Şölen filed an invalidity application, relying on a figurative mark featuring the words ‘Ozmo cornet’. Şölen also relied on cornet wrapping and packaging, which enjoy copyright protection under Bulgarian law, the company said.
In April 2015, the EUIPO’s Invalidity Division rejected Şölen’s invalidity actions, finding that there was no likelihood of confusion. Şölen appealed against the decision, but in September 2016, the appeal was dismissed by the Third Board of Appeal.
The appeal board found that the goods covered by Şölen’s mark were directed at the general public in Bulgaria, while the product portrayed by the contested design was directed at professional consumers in the confectionery industry.
Again, Şölen appealed against the decision. Now, the Turkish company has secured a win at the General Court.
The court agreed with Şölen that the packaging in the form of a cone (as shown by one of the contested designs) is not intended to be sold separately from the ice cream itself.
It added that consumers of ice cream wrapped in such packaging must be said to form part of the relevant public.
“Accordingly, the Board of Appeal was incorrect to find that that packaging was, in the vast majority of cases, intended for professional consumers in the confectionery industry and not also for the general public, like the goods covered by the earlier mark,” said the General Court.
The court concluded that the appeal board wasn’t entitled to find that there was no confusion between the marks, so it annulled the decision. The court also granted Şölen’s applications for a declaration that the contested designs are invalid.
The decisions are available here and here.
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