Sweet and sour TM rulings as EUIPO decisions upheld
The European General Court has today upheld two decisions of the European Union Intellectual Property Office (EUIPO) in relation to oppositions against confectionery packaging.
Russian confectionery brand Krasnyiy Oktyabr filed two trademark oppositions with the EUIPO in March 2014, relating to applications by Ukrainian sweets corporation Roshen.
Registration number 1,186,110, for figurative mark ‘Crabs’, depicts the word ‘Crabs’ accompanied by multiple orange and yellow crabs. Number 1,191,921 is for another figurative mark called ‘Crabs’, featuring the creatures and words in a vertical pattern in the same colours.
Both marks were for confectionery packaging and sought to include confectionery and caramels in international class 30.
Krasnyiy Oktyabr complained that the marks were similar to its own trademark, international registration number 1,102,599, registered in 2011. The red, white, and black mark includes images of multiple crayfish in a vertical line and is also registered in international class 30, for candy.
It has effect in Bulgaria, Benelux, Germany, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Poland, Portugal, Romania, Slovakia and the UK.
The Opposition Division rejected both oppositions in October 2015. It found that, the crayfish were conceptually similar, but the visual and phonetic differences — including the distinct word elements —were sufficient to offset similarities, such that there would be no likelihood of confusion.
On appeal, in August 2016, the EUIPO affirmed the division’s decision relating to the ‘110 application and annulled the decision in the ‘921 matter, refusing the latter trademark registration in the EU. Krasnyiy Oktyabr appealed against the decision of the ‘110 application, and Roshen did the same in relation to the ‘921 matter.
Today, February 7, the EU court dismissed Krasnyiy Oktyabr’s appeal, ordering it to pay costs. It affirmed the EUIPO’s ruling that similarity is based on the overall impression of the signs in question. Given the “significant visual differences” between the marks, including letter styling and words elements, the structure of the signs are not “almost identical”, as claimed. There is a low likelihood of confusion, the court said.
The EU court also dismissed Roshen’s appeal, ordering the company to pay costs. It held that the differences in the word and figurative elements are not sufficient to dispel the similarities between the vertical representations of multiple crayfish in a line, which are the most distinctive elements of the signs.
It said the EUIPO correctly found that the “figurative representations of crayfish were the elements that caught the consumer’s eye most in the two signs at issue”. The signs are therefore “visually similar to an average degree” and a likelihood of confusion exists.
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