Peppa Pig creators win trademark invalidity claim
The creators of children’s animated series “ Peppa Pig” have been successful in their bid to cancel a trademark they said would be confusing against one of their earlier marks.
Earlier today, March 21, the EU General Court ruled that a mark applied for by Xianhao Pan was invalid after Entertainment One and Astley Baker Davies opposed Pan’s application.
In 2013, Pan was granted a trademark for the figurative sign of a tapir head on a human body and the word ‘Tobbia’ in bold, black text underneath. The mark was in the colours yellow, blue, red and pink and was registered for clothing, footwear and headgear.
But, Peppa Pig’s creators said it would be confusing against an earlier black and white mark which was registered for the same goods. The earlier trademark was for the words ‘Peppa Pig’, with the cartoon character Peppa standing on top of the ‘pa’ in ‘Peppa’.
In 2017, the First Board of Appeal of the European Intellectual Property Office (EUIPO) invalidated Pan’s mark because it found the applied-for mark and the earlier trademark visually, phonetically and conceptually similar.
Although the General Court said the applied-for mark and earlier trademark differed in the colours of the marks, it ruled that the differences between the marks “are not capable of outweighing the similarities”.
It agreed with the Board of Appeals and said, “the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details”, and therefore it was right in finding the marks were visually similar overall.
The court also said the Board of Appeals was correct in its assessment that there is a certain correlation between the element ‘peppa’ and the element ‘tobbia’ because both words contain the repetition of a strong consonant.
It said the marks were conceptually similar since they both represent a pig and contrary to Pan’s claims, “it is unlikely that the public will associate the mark Tobbia with a tapir”.
In his appeal to the General Court, Pan said the Board of Appeals failed to state the reasons for opposing an earlier decision by the Cancellation Division of the EUIPO which upheld his applied-for mark.
Today, the General Court said the Board of Appeals’ obligation to state the reasons for its own decision “did not create an obligation for it to point out all the incorrect aspects of the Cancellation Division’s decision”.
“It is sufficient for it to state the reasons on which its own decision is based,” the court said today.
Pan also argued that the Board of Appeals incorrectly considered documents submitted by Entertainment One and Astley Baker Davies which were not submitted before the Cancellation Division.
The general court said this argument was ineffective because the Board of Appeal did not use these documents to make its decision.
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