28 June 2019Trademarks

Aldi loses TM opposition at EU court

An EU court has handed defeat to Aldi, rejecting the German supermarket chain’s trademark opposition against a ‘Crone’ trademark covering jewellery and clothing.

Yesterday, June 27, the EU General Court dismissed Aldi’s appeal against a decision that rejected its opposition to a mark applied-for by a German individual.

Germany-based Christoph Crone applied to register figurative sign ‘Crone’ as an EU trademark, covering classes 14, 18, and 25 for goods such as jewellery, umbrellas and clothing in 2015.

Following publication of the mark, the German supermarket submitted an opposition based on three figurative EU marks (containing the word ‘Crane’ and featuring a stylised bird) and an EU trademark for the word ‘Crane’.

In May 2017, the European Union Intellectual Property Office’s (EUIPO) Opposition Division upheld the opposition for the goods included in class 25.

According to the division, the average visual similarity and the high phonetic similarity between Aldi’s word mark and the applied-for mark meant that there was a likelihood of confusion for the part of the public which didn’t perceive any significance in the marks.

The division rejected the opposition for the goods in classes 14 and 18 because of the lack of similarity between the goods covered by the earlier mark and the goods covered by the applied-for mark.

Finally, on the opposition based on the earlier figurative marks, the division concluded there was no likelihood of confusion because the signs were graphically different.

Aldi appealed against the decision but the EUIPO’s First Board of Appeal dismissed the appeal in March 2018.

Again Aldi appealed, asking the General Court to annul the decision and order the EUIPO to pay costs. The German supermarket claimed that the First Board of Appeal made several errors in its assessment of the likelihood of confusion.

Aldi argued that the clothing, footwear, and headgear goods included in class 25 of its trademarks were similar to umbrellas and suitcases in class 18.

But, according to the General Court, merely asserting that some companies would manufacture both types of goods was not enough to establish that this was the case generally.

The supermarket also claimed that there was a similarity between clothing, footwear and headgear, and jewellery and precious stones because the second would complete the first “according to fashion”.

“In that regard, contrary to what the applicant claims, there is no evidence that the use of a watch, a jewel or a necklace set with precious stones is indispensable for the use of a garment, a hat or a pair of shoes,” said the court.

Finally, the General Court said, in agreement with the appeal board, that even if certain goods were considered to be slightly similar, the marks weren’t similar enough to find a likelihood of confusion.

In making a comparison, the General Court said: “Admittedly, the word ‘crane’ in English could be associated with ‘crane [bird, machine]’ and the word ‘crone’ in German, at least on the phonetic plane, with the headdress ‘Krone [crown]’ but in other member states of the union, such as Bulgaria, Hungary or the Slovak Republic, neither ‘crane’ nor ‘crone’ has any meaning, so that, with regard to these countries, there would be no need for a conceptual comparison.”

The court dismissed the action and ordered Aldi to pay the costs of the case.

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