Greek company fights off Intersnack opposition at EU court
The EU General Court today handed victory to a Greek personal hygiene company, annulling a decision by the European Union Intellectual Property Office (EUIPO) to reject a snack-related trademark.
In July 2014, Greece-based Septona applied to register figurative mark ‘Welly’ as an EU trademark (EUTM). The mark, which features the word ‘Welly’ in white on a black square, covers class 30 for foods such as rice cakes, cereal bars and cake dough.
Septona, which produces personal hygiene products, operates a ‘Welly’ brand, covering breakfast cereals and rice cakes.
German snack brand Intersnack Group opposed the trademark, based on two earlier EU figurative marks: number 8,353,203, which depicts the word ‘Kelly’s’ in white on a red background, and number 11,719,283, which consists of the first logo and the word ‘Chips’ in yellow.
Both of Intersnack’s trademarks covered class 30, among other classes.
In June 2016, the EUIPO’s Opposition Division rejected the opposition in its entirety after finding that there was no likelihood of confusion. Intersnack appealed against the decision.
The following year, the EUIPO’s First Board of Appeal annulled the Opposition Division’s decision, rejected the EUTM application and ordered Septona to pay the costs.
This time, Septona appealed against the decision to the EU General Court.
The Greek company argued that the appeal board had erred in finding that the level of attention of the relevant public was below average and that the comparison of the goods and the analysis of the similarities of the signs were incorrect.
While Septona agreed with the EUIPO that the relevant public consists of average consumers, it claimed that the contested decision was contradictory as it concluded that the level of attention is lower than average for the goods concerned.
After finding that the Board of Appeal didn’t err, the General Court moved on to comparing the goods. Again, the court sided with the EUIPO.
However, the court went on to find that trademarks are only slightly similar in visual terms and that the appeal board had made an error of assessment in finding that the similarity was above average.
On phonetic similarity, the court sided with Septona, finding that the “letters placed at the beginning of each word element, namely the letter ‘w’ for one and the letter ‘k’ for the other, are, as the applicant rightly points out, markedly different letters”.
Septona also argued that the ‘Kelly’s’ has a meaning which will be immediately understood by the public, in particular by English-speaking consumers, as a surname or a first name, and that the word ‘Welly’ is a common noun.
The court said: “It follows that, for many consumers, the signs at issue are conceptually different and that, for those consumers who do not understand that the word ‘Kelly’s’, with the letter ‘k’ in upper case, is a name and do not perceive any concept in the word ‘welly’, the conceptual comparison of the signs at issue is neutral.”
Finally, the court concluded that there was no risk that the public might believe that the goods come from the same undertaking and that the Board of Appeal erred in holding that the conditions for the existence of a likelihood of confusion were met.
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