19 June 2018Trademarks

EU court serves victory to German brewery

The EU General Court dismissed the appeal of a Spanish brewery today, culminating in a win for a German brewing company.

In 2013, German brewing company Schlossbrauerei Au applied to register a figurative mark with the European Union Intellectual Property Office in classes 32, 33 and 43, for beers, alcoholic beverages, and food and drink services.

The mark contained the word ‘Eiskeller’, which translates as ‘icehouse’ in English, in blue text below a figurative coat of arms in multiple colours, as well as an image of a crown.

In 2014, Spanish company Plataforma Continental filed a notice of opposition on the grounds of its earlier registered Spanish word marks. ‘Keler’ was registered in 1995 for beers and beverages in class 32, and ‘Keler 18’ was registered in 1963 for beer and juices in class 32.

The Opposition Division rejected the opposition in 2015. Shortly afterwards, the ‘Keler’ marks were transferred to Spanish brewery Sociedad Anónima Damm.

Sociedad appealed against the decision. In 2016 the Fifth Board of Appeal upheld the Opposition Division’s finding that although the goods covered by the ‘Keler’ marks and the applied-for mark are similar, the marks themselves were dissimilar.

Like the Opposition Division, the board concluded that there was no likelihood of confusion between ‘Eiskeller’ and the earlier registered ‘Keler’ marks.

On appeal to the General Court, Sociedad disputed the board’s determination that the marks were dissimilar and that a likelihood of confusion does not exist.

Sociedad argued that the figurative element of the applied-for mark has “only limited distinctiveness” and that the ‘keller’ element of the word ‘Eiskeller’ plays an independent distinctive role.

This is because the relevant public, including those in the food and catering sectors, will understand ‘eis’ as meaning ‘ice’, the Spanish company claimed, which could describe a brewing process involving the freezing and unfreezing of beer.

Affirming the board’s decision, the court said the signs at issue have “certain similarities” such as the fact that the letters of the earlier mark are present in the word ‘Eiskeller’ but there are also “a number of differences”.

The board was correct to find that the figurative element “showed some distinctiveness, reinforced by its central position and its applicable size”, the court said.

It added that the figurative element “is not insignificant” as its size and significant position in the mark means it is not overshadowed by the word ‘Eiskeller’.

The board did not err in finding the signs visually and conceptually dissimilar, the court concluded, adding that they “coincide phonetically in a limited way”.

In addition, the court noted that the Spanish word for ice is ‘hielo’ or ‘helado’. This is “a long way from the German word” of ‘Eis’, so the ‘Eis’ element in ‘Eiskeller’ will not be understood as referring to ice, the court said.

The court dismissed the appeal and ordered Sociedad to pay the costs.

Did you enjoy reading this story?  Sign up to our free daily newsletters and get stories like this sent straight to your inbox.

Today's top stories

5G specs prompt FRAND food for thought

US court dismisses film studios’ copyright motions

Smart energy provider takes on Huawei in patent claim

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at atapping@newtonmedia.co.uk

More on this story

26 June 2018   The EU General Court today affirmed a European Union Intellectual Property Office decision to invalidate a trademark for a Czech Republic-based brewery.