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10 March 2023TrademarksLiz Hockley

Nestlé loses EU court appeal to revive ‘A2’ trademark

EU General Court determines similarity with The a2 Milk Company mark | Signs held to be phonetically similar with visual differences.

The EU General Court has rejected a bid by Nestlé to overturn a decision revoking a trademark by the European Union Intellectual Property Office (EUIPO) Board of Appeal.

The court delivered the judgment on Wednesday, March 8.

Nestlé obtained international registration of the figurative sign ‘A2’ in October 2018, but the following year it was opposed by The a2 Milk Company on the grounds that there was likelihood of confusion between Nestlé’s mark and its own.

Both marks cover goods in classes 5 and 29, which include “Dietetic foodstuffs” “beverages and substances for medical and clinical use” “dietetic supplements for medical use” and “milk and dairy products”.

In November 2020, The a2 Milk Company’s opposition was upheld, a decision that Nestlé then appealed.

The Board of Appeal dismissed Nestlé’s appeal on the grounds that there was a likelihood of confusion between the signs.

It opined that although the goods covered by the marks mainly targeted the general public, they were also aimed at a more “specialist public” with specific professional knowledge or expertise, such as medical professionals or pharmacists, and that the level of attention of that public could vary from average to high.

Phonetically similar

The board concluded, inter alia, that although the signs were visually similar to a low degree, they were phonetically similar to a high degree, if not identical. The conceptual comparison of the signs was deemed to be “neutral”.

Nestlé contested this view, arguing that the board had erred in finding a likelihood of confusion, and that the board did not correctly examine the perception of the mark by the relevant public.

It claimed that the board made mistakes in the visual comparison of the signs, as well as the degree of phonetic similarity, and applied the wrong case-law and considerations in its assessment.

However, the court concurred with the Board of Appeal’s findings and upheld its decision. It said that despite visual differences, the alphanumeric elements common to both signs would be perceived as a distinctive combination and dominant element in those signs.

It determined that: “it was highly conceivable that, confronted with the international registration at issue, consumers would perceive it as a variation of the earlier international registration, configured in a different way according to the type of goods covered”.

Nestlé has been ordered to pay costs.

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