Germany: Alcoholic Marks – The First Round

Last Updated: 10 March 2017
Article by Christopher Benson and Suzy Shinner

The General Court has upheld an opposition to the figurative mark for LUBELSKA (as shown above left), based on Lass & Steffen's earlier German word mark Lubeca. Both marks covered identical goods in Class 33 (Alcoholic beverages (except beer)).

Both the Opposition Division and Board of Appeal had previously upheld the opposition. The Board of Appeal held that the relevant territory for the assessment of likelihood of confusion was Germany, and that the level of attention of the relevant consumer was average. It also held that the crown element of the LUBELSKA mark was not particularly distinctive in the context of alcoholic beverages, and that the focus of the relevant public would be on the verbal elements, which were confusingly similar.

The applicant, Stock Polska sp. z o.o., argued that the level of attention of the relevant German consumer was higher than average, bearing in mind the restrictions on the sale of the goods to underage drinkers, their high price, the occasional nature of their purchase, and the fact that the purchase will be conditioned by the individual and specific tastes of customers.

The General Court disagreed, and pointed out that it has been established in case law that these goods are for everyday consumption and are normally widely distributed in different places – including the food section of supermarkets, department stores and other retail outlets, restaurants and cafes. It further observed that the consumer of alcohol is a member of the general public deemed to be reasonably well informed and reasonably observant and circumspect, and who will demonstrate an average level of attention when purchasing goods.

As to the applicant's arguments that the age restrictions would result in a higher level of attention for consumers, the General Court said that those restrictions do not imply that adult consumers demonstrate an enhanced level of attention when making their purchases. Similarly, they did not accept the applicant's arguments as to the "high price" of the goods. The General Court commented that only certain beverages (strong alcohol) were sold at a high price. It also disagreed that purchase of the goods is determined by the individual and specific tastes of purchases. Such preferences apply to virtually any foodstuff or beverage as well as to many other mass consumption goods – that did not mean that the level of attention of the public was higher than average.

Therefore, the level of attention of the relevant German consumer was deemed to be average.

The applicant's arguments that the Board of Appeal had neglected the figurative elements of the mark were also rejected. The General Court observed that a crown feature was not atypical and was not liable substantially to influence the overall impression created by the sign applied for. This was a common element of marks in the beverages sector, especially for alcoholic beverages, and it would be perceived as decorative or even laudatory. Similarly, the curved writing, which the applicant argued was distinctive, was held by the General Court merely to correspond to a simple geometric shape commonly used for labels affixed to bottles. Therefore, the word element was more distinctive than its figurative elements.

The applicant submitted that the Board of Appeal erred in taking the view that the word element of the signs were devoid of specific meaning. It argued that Lubeca is associated with the German city of Lubeck (in its latin meaning), while Lubelska would be perceived as being devoid of specific meaning, or alluding to the Polish city of Lublin. The General Court found that the words were visually and phonetically similar. Both begin with the same group of letters ('lube'), end with the same letter ('a') and are distinguishable only by their central letters, namely 'c' and 'lsk'. Conceptually, it held that the applicant had not established that the word elements have a clear and specific meaning for the German consumer – the fact that Lubeca is the Latin name of the German city of Lubeck was not enough for it to be recognised by the average German consumer.

Also worth noting is the fact that the General Court commented that, when the goods concerned (i.e. alcoholic beverages) are also ordered verbally for consumption in bars, restaurants or nightclubs, the phonetic similarity between the marks at issue is, by itself, sufficient to give rise to a likelihood of confusion. This is helpful for brand owners of alcoholic beverages, who can rely on the 'bar call' argument to say that there will be a likelihood of confusion.

Considering all these things and the identity of the goods at issue, the General Court held that there was a likelihood of confusion and dismissed the applicant's appeal. The opposition was therefore upheld.

Case – T-701/15

Suzy Shinner



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