EU court dismisses ‘Pet Cuisine’ trademark appeal
The EU General Court today dismissed a trademark appeal relating to animal foodstuffs.
In 2014, the Benelux Office for Intellectual Property registered a figurative trademark (946,758) in brown colouring at the request of Belgium-based TDH Group.
The mark, which shows the words ‘Pet Cuisine’ above an image of a cat, a dog, and a dome food cover within an oval-shaped outline, covered seeds, agricultural products, fruits, and foodstuffs for animals in class 31.
During the same year, the International Bureau of the World Intellectual Property Organization notified the European Union Intellectual Property Office (EUIPO) of the mark’s international registration (1,203,373).
Spain-based Comercial de servicios Agrigán, which distributes agricultural and veterinary products, filed an opposition at the EUIPO, on the grounds of two earlier-registered EU figurative marks.
Both marks were registered in 2013 for foodstuffs for animals, wholesaling and retailing of foodstuffs for animals, and warehousing and distribution of food for animals (classes 31, 35, and 39).
They both feature the words ‘The Pet CUISINE’ and ‘alimento para mascotas felices’, which translates into English as ‘food for happy pets’. One mark also features the word ‘Genial’ and the other ‘Sibarity’, and both marks are in blue and yellow colouring.
In 2016, the Opposition Division partially upheld the opposition and refused EU protection of the applied-for mark in respect of seeds, agricultural products, and foodstuffs for animals, but in respect of fruit and vegetables.
The Second Board of Appeal affirmed the decision, finding that a likelihood of confusion exists between the applied-for mark and Comercial de servicios Agrigán’s marks in relation to those goods.
The board said that ‘Pet Cuisine’ is the dominant and distinctive element of all marks, leading to a similarity between them.
TDH Group appealed to the General Court.
The Belgian company claimed that the board had wrongly found the level of attention of the relevant public to be average, and argued that those purchasing health-related veterinary preparations have a high level of attention.
But, as TDH Group had not produced any evidence to show the impact that foodstuffs for animals have on pet health, the court said that this submission is inadmissible.
TDH Group also argued that the board had erred in not finding the term ‘Pet Cuisine’ to be descriptive and in determining that the other word elements of the earlier-registered marks are not distinctive.
Although the court agreed with the board’s assessment that ‘Pet Cuisine’ is the most distinctive element of the marks, it acknowledged that the combination of ‘pet’ and ‘cuisine’ is descriptive in relation to the goods covered by them.
The court then affirmed the board’s finding that ‘Pet Cuisine’ constitutes the visually dominant element of all the marks, and that they are visually, phonetically, and conceptually similar.
As such, the EUIPO’s decision “is free from error”, the General Court said.
As a likelihood of confusion exists between the applied-for mark and Comercial de servicios Agrigán’s earlier-registered marks, the court dismissed TDH Group’s appeal and ordered it to pay the costs of the proceedings.
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