THURSDAY, 19 JUNE 2008
Wines are different, CFI tells Coke
Yesteray the Court of First Instance of the European Communities (CFI) dismissed an appeal by Coca-Cola against the Board of Appeal's decision to dismiss its opposition in Case T‑175/06, The Coca-Cola Company v Office for Harmonisation in the Internal Market,San Polo Srl.
In May 2001, San Polo applied to register as a Community trade mark a figurative mark containing the word MEZZOPANE (depicted here) for wines. Coca-Cola opposed, citing its earlier word mark MEZZO for 'beers, ale and porter; mineral and aerated waters and other non-alcoholic drinks; syrups and other preparations for making beverages' in Austria and a German word mark, MEZZOMIX, for 'mixed lemonade-based drinks'. The Opposition Division upheld Coca-Cola's opposition on the basis that there existed a likelihood of confusion between the earlier MEZZO mark and San Polo's mark, given the similarity of the respective signs and the fact that there was some similarity between the wines and beers in question. Having reached this conclusion, it did not consider the likelihood of confusion with MEZZOMIX. The Board of Appeal reversed the Opposition Division's decision, finding that there was no likelihood of confusion because the goods were simply not sufficiently similar.
Coca-Cola's appeal to the CFI failed. Applying settled principles, on a global assessment of the marks in issue, the word MEZZO and the figurative MEZZOPANE mark were only averagely similar. Notwithstanding the element common to all three signs - the term 'MEZZO' - the signs still featured significant differences. More importantly, though, the goods in question were simply not similar.
The CFI closely considered its earlier decisions in Case T-99/01 Mystery Drinks v OHIM – Karlsberg Brauerei (MYSTERY)  ECR II‑43 and Case T-203/02 Sunrider v OHIM – Espadafor Caba (VITAFRUIT)  ECR II‑2811 on the question of similarity of different types of drink, affirming that they did not support Coca-Cola's contention that the drinks of the respective parties in this case were similar.
Posted by: Jeremy Phillips @ 11.31
Tags: Community trade mark opposition, similarity of goods,