4 December 2019TrademarksRory O'Neill

Mixed ruling for Austrian supermarket in Billabong TM dispute

The EU General Court has partially overturned a decision of the European Union Intellectual Property Office (EUIPO), which said that Austrian supermarket Billa couldn’t register a trademark for games.

But the EUIPO’s refusal of the Billa mark stands with respect to all other goods and services, the court ruled.

In its ruling, issued today, December 4, the court ruled that the EUIPO’s appeals board had correctly found a likelihood of confusion between the ‘Billa’ mark and the ‘ Billabong’ surf and snowboarding brand.

In 2013, the Austrian supermarket chain filed to register ‘Billa’ in classes 14, 18, 25, 28, and 35. The mark covered goods and services including jewellery, leather and faux-leather products, sportswear, games, and toys.

The company behind Billabong, Boardriders IP Holdings, opposed the mark, claiming it would cause confusion with its own mark in classes 14, 18, 25, and 28.

This was successful and Billa was initially refused registration of the mark on the grounds of a likelihood of confusion. The supermarket chain unsuccessfully lodged an appeal with an EUIPO appeals board, which last year upheld refusal of registration.

The appeals board had determined that the goods ‘games’ and ‘toys’ in class 28 for the ‘Billa’ mark were similar to the services of ‘retailing of sporting goods’ in class 35, covered by the ‘Billabong’ registration.

The General Court today ruled that the appeals board had been wrong to find similarity between these goods and services.

“An an area of overlap between two categories of goods with essentially different purposes does not mean that all the goods or services concerned by those categories of goods are similar,” the court wrote.

The ‘Billa’ mark was cleared for registration for ‘games’ in class 28, while the EUIPO’s refusal still stands for all other goods and services.

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