Keywords

Summary



Keywords

1. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark

(Council Regulation No 40/94, Art. 8(1)(b))

2. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Similarity between the goods or services in question

(Council Regulation No 40/94, Art. 8(1))

Summary

1. For average German and Austrian consumers, there is no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark between, on the one hand, the figurative mark MEZZOPANE the registration of which as a Community trade mark is sought in respect of ‘Wines’ within Class 33 of the Nice Agreement and, on the other hand, the word marks MEZZO and MEZZOMIX registered earlier in Austria and Germany, respectively, MEZZO being registered in respect of ‘beers, ale and porter; mineral and aerated waters and other non-alcoholic drinks; syrups and other preparations for making beverages’ in Class 32 of the Nice Agreement and MEZZOMIX in respect of ‘mixed lemonade-based drinks’, also within Class 32 of that agreement.

Despite the reputation of the earlier mark MEZZOMIX, the lack of similarity between the goods in question, combined with the average similarity of the marks at issue from the visual and phonetic points of view and the absence of meaning of the marks at issue in German, prevents a likelihood of confusion in the mind of relevant consumers as to the commercial origin of the goods covered by MEZZOPANE, on the one hand, and the earlier marks, MEZZO and MEZZOMIX, on the other. The differences between the marks and the goods covered are sufficiently significant, considered overall, to exclude the possibility that the relevant public may believe that the wines covered by the mark applied for and the beers and other beverages covered by the earlier marks have a common origin, even when the reputation of the earlier mark, MEZZOMIX, for mixed lemonade-based drinks is taken into account.

(see paras 21, 106-107)

2. The ‘mineral and aerated waters and other non-alcoholic drinks; syrups and other preparations for making beverages’ and the ‘mixed lemonade-based drinks’ belonging to Class 32 of the Nice Agreement include only products without alcohol.

According to the clear and unambiguous wording of Class 33 of the Nice Agreement, that class includes all alcoholic beverages with the sole exception of beers. Consequently, the mere fact that, in Class 32, the words ‘non-alcoholic’ do not refer expressly to ‘fruit drinks and fruit juices’ and ‘syrups and other preparations for making beverages’ has no bearing on the question whether or not that class could contain alcoholic products other than beer. Not only does the wording of Class 33 leave no scope for interpreting it other than as including all alcoholic beverages except for beers but, in addition, the explanatory notes to Classes 32 and 33 support the interpretation that Class 33 includes all alcoholic beverages except beers. According to the explanatory note to Class 33, as soon as an alcoholic beverage is ‘de-alcoholised’, it is taken out of Class 33 and is included in Class 32. The explanatory note to Class 32 confirms that by stating that it includes ‘de-alcoholised’ drinks.

Consequently, the general description set out in the explanatory note to Class 32 to the effect that it includes ‘mainly’ non-alcoholic beverages must be read in a manner consistent with the wording of Class 33. Accordingly, the beginning of the explanatory note to that class and the other clarification in the explanatory note to Class 32 must be read as meaning that Class 32 includes, in principle, only non-alcoholic drinks and preparations, with beers being the sole exception to the non-alcoholic nature of beverages included in that class.

That assessment is not called into question by the judgment in Case T‑296/02, since that judgment only acknowledges the theoretical possibility that fruit drinks and fruit juices could be regarded as including alcoholic drinks, without systematically interpreting Classes 32 and 33. Moreover, the Court of First Instance observes that, in that judgment, it was considered that the terms ‘fruit juice drinks’ and ‘fruit juices’ were reserved to products without alcohol.

(see paras 74-76)