Every big city seems to have a Harry's Bar, some of them
very famous, and so an attempt to trade mark the term across the EU
was an ambitious move. Harry's New York Bar SA ("New
York") was undeterred. It applied to register the mark
Harry's New York Bar as an EUTM in respect of various goods and
services in classes 25 (clothing etc), 30 (coffee, tea, etc), 32
(non-alcoholic beverages etc) and 43 (bar and restaurant
Its application was opposed by Harrys Pubar AB
("Pubar"), in respect of all the goods and services
applied for. Pubar relied on earlier Swedish national mark
registrations for versions of a logo (above right) in classes 25
(clothing) and 43 (serving of food and drink through restaurant,
pub and café services") and a national registered trade
name for the words Harry Pubar Aktiebolag.
The opposition was upheld by the EUIPO based on the logo marks
in respect of classes 25 and 43 but not the Class 30 and 32 goods
other than beer. Both sides appealed.
In assessing likelihood of confusion with the earlier Swedish
national marks in an area of consumer goods and services, the
General Court held that the relevant public was the Swedish
Are restaurant and bar services similar to class 30 and 32 goods
although in different classes? In an unsurprising case overall,
this was perhaps the analysis of most general use. The General
Court held they were, and went further than the EUIPO had done and
said that this included beer. Those goods and beverages were all
complementary to the serving of food and drink.
Were the earlier marks similar to the mark applied for? The
overall impression created by the application was that it was
similar to the earlier marks, and was the case visually,
phonetically and conceptually. "Harrys" was the dominant
element of Pubar's marks, the additional words were not
distinctive and the graphic elements would be viewed as merely
decorative. The use of an apostrophe in the application was also
not a relevant difference as both Harrys and Harry's would be
viewed by the Swedish public as possessive.
Overall there was a likelihood of confusion between the earlier
logo marks and the mark applied for. Pubar's appeal was upheld
and New York's rejected.
Case T-84/14 and T-97/14
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The focus on the product being obvious or anticipated as at a certain date provides powerful protection and commercial certainty without conflicting with a patentee's ability to obtain patent protection.
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