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General Court: IceExpresso + Energycoffee v. Monster Expresso + Energy does not equal confusion

In Case T‑61/14, the General Court upheld  the following opposition

Mr Luis Yus Balaguer (Spain)

Monster Energy Company (USA) -earlier CTM's

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Class 9: ‘Coin-operated vending machines’;

Class 30: ‘Coffee-based beverages; Coffee mixtures for the manufacture of alcoholic beverages or non-alcoholic drinks, ice’;

Class 32: ‘Non alcoholic beverages including refreshing drinks, Energy drinks, Whey drinks, isotonic beverages; Beers, mineral and aerated waters; Syrups and other preparations for making beverages’;

Class 35: ‘Wholesaling, retailing in shops and via global computer networks of beverages based on coffee, tea, etc, wholesaling and sale via global computer networks of vending machines’.

Class 5: ‘Nutritional supplements’;

Class 32: ‘Non-alcoholic beverages, including, energy drinks flavoured with coffee and enhanced with vitamins, minerals, nutrients, amino acids and/or herbs, excluding perishable beverage products that contain fruit juice or soy’

Both the OD and the BoA of OHIM found that there was no likelihood of confusion.

As a preliminary matter, the assessments regarding the earlier mark registered under number 8815748 applied equally to the earlier mark registered under number 8815722 as they had an identical composition to the latter except for the element ‘hammer’ which replaces the element ‘midnight.

Primarily, the relevant public is the average consumer in the EU, who is reasonably well informed and reasonably observant and circumspect, and whose level of attention is neither particularly high nor particularly low.

Secondly, certain word elements of the signs at issue, since they are descriptive of some of the goods and services at issue, have a weak distinctive character, so that they would not attract the attention of the consumer as much as other more distinctive elements, namely the words ‘expresso’, ‘x-presso’, ‘espresso’ and ‘coffee’, which refer to a kind of coffee-based beverage, designated in Classes 30 and 32, and, on the other hand, the expressions ‘espresso energy’ and ‘energy coffee’, which refer to energy beverages and are descriptive of the goods and services falling within Class 9 and Class 35, which concern, in particular, that type of beverage.

As regards the visual comparison between the signs at issue, that there was no visual similarity between the mark applied for and the earlier marks registered under numbers 8815748 and 8815722, and there was a low degree of similarity between the mark applied for and the earlier mark registered under number 8445711.

As regards the phonetic comparison between the signs at issue, there is a low degree of phonetic similarity/

As regards the conceptual comparison, for a part of the relevant public, there is a conceptual similarity in so far as the signs at issue refer to the idea of a coffee-based beverage, of the espresso type, that gives energy, and, on the other hand, for the remainder of the public, who does not perceive any clear semantic meaning from those signs, the conceptual comparison remained neutral.

In conclusion,  since the common elements between the signs at issue are descriptive and therefore of low distinctiveness, those signs have a low degree of similarity, and even assuming the goods and services at issue are identical, there is no likelihood of confusion.

Posted by: Laetitia Lagarde @ 18.12
Tags: General court, expresso, monster,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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