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Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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WEDNESDAY, 23 DECEMBER 2015
Once upon a time in General Court: RED RIDING HOOD v ROTK─PPCHEN

In Case T‑128/15, the General Court dismissed the following action:

Alberto Ruiz Moncayo (Spain)

Rotkäppchen-Mumm Sektkellereien GmbH (Germany)

RED RIDING HOOD

ROTKÄPPCHEN

Class 33-  ‘Alcoholic beverages (except beers); Hydromel [mead]; Piquette: Rice alcohol; Bitters; Anise [liqueur]; Anisette [liqueur]; Aperitifs; Arak [arrack]; Alcoholic beverages, except beer; Pre-mixed alcoholic beverages, other than beer-based; Alcoholic beverages containing fruit; Distilled beverages; Spirits [beverages]; Brandy; Cocktails; Curacao; Digesters [liqueurs and spirits]; Alcoholic essences; Alcoholic extracts; Fruit extracts, alcoholic: Gin; Kirsch; Liqueurs; Peppermint liqueurs; Perry; Rum; Sake; Cider; Wine; Vodka; Whisky’.

Class 33- Alcoholic beverages (except beers)’

OHIM rejected the opposition and  considered that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009, in so far as the signs at issue were different.

The opponent appealed and submitted, in essence, that the signs at issue are conceptually similar in a substantial part of the relevant territory, in so far as they both refer to the fairy tale ‘Little Red Riding Hood’.

The General Court confirmed that the signs at issue were visually and phonetically different and that no conceptual comparison was possible, to the extent that, first, those signs did not allude to any concept that could allow such a comparison and, secondly, German-speaking or English-speaking consumers of the European Union would not perceive that those signs referred to the same character.

Indeed, the lack of a root common to the German word ‘käppchen’ and the English word ‘hood’ does not allow the relevant public to perceive immediately that those two words have the same meaning. In addition, the German word ‘käppchen’ appears in a diminutive form which has no equivalent in the English expression ‘riding hood’, which suggest a hood worn while riding a horse. Furthermore, the earlier marks do not contain the concept corresponding to the word ‘riding’. Finally, the  contested CTM includes three words while the earlier marks contain a single word only. Such differences between the German and English versions of the title of the fairy tale ‘Little Red Riding Hood’ are capable of preventing a consumer with an average level of attention from perceiving immediately that the meaning of the signs at issue is similar.

Furthermore, while it is not disputed that the German public has a good knowledge of English in terms of everyday language, it has not been established that the words ‘red’, ‘riding’ and ‘hood’ of the mark applied for are part of basic English vocabulary. In the same way, the documents in the file do not show either that the English-speaking public has good knowledge of the German language or, in any event, that it will understand the word ‘rotkäppchen’.

Finally, even supposing that the words ‘red’, ‘riding’ and ‘hood’ form part of basic English vocabulary and that, accordingly, as such, they may be understood by the average consumer, including the average German-speaking consumer, that does not mean that that consumer, when purchasing everyday consumer goods, will immediately understand those words in the specific combination ‘red riding hood’ as being the English translation of the earlier marks.

In general , it cannot be considered that the average consumer necessarily knows the title of the fairy tale ‘Little Red Riding Hood’ in a language other than his own. 

Posted by: Laetitia Lagarde @ 18.34
Tags: General Court, RED RIDING HOOD, ROTK─PPCHEN, ,
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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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