EU court serves victory to German brewery

The EU General Court dismissed the appeal of a Spanish brewery today, culminating in a win for a German brewing company.

In 2013, German brewing company Schlossbrauerei Au applied to register a figurative mark with the European Union Intellectual Property Office in classes 32, 33 and 43, for beers, alcoholic beverages, and food and drink services.

The mark contained the word ‘Eiskeller’, which translates as ‘icehouse’ in English, in blue text below a figurative coat of arms in multiple colours, as well as an image of a crown.

In 2014, Spanish company Plataforma Continental filed a notice of opposition on the grounds of its earlier registered Spanish word marks. ‘Keler’ was registered in 1995 for beers and beverages in class 32, and ‘Keler 18’ was registered in 1963 for beer and juices in class 32.

The Opposition Division rejected the opposition in 2015. Shortly afterwards, the ‘Keler’ marks were transferred to Spanish brewery Sociedad Anónima Damm.

Sociedad appealed against the decision. In 2016 the Fifth Board of Appeal upheld the Opposition Division’s finding that although the goods covered by the ‘Keler’ marks and the applied-for mark are similar, the marks themselves were dissimilar.

Like the Opposition Division, the board concluded that there was no likelihood of confusion between ‘Eiskeller’ and the earlier registered ‘Keler’ marks.

On appeal to the General Court, Sociedad disputed the board’s determination that the marks were dissimilar and that a likelihood of confusion does not exist.

Sociedad argued that the figurative element of the applied-for mark has “only limited distinctiveness” and that the ‘keller’ element of the word ‘Eiskeller’ plays an independent distinctive role.

This is because the relevant public, including those in the food and catering sectors, will understand ‘eis’ as meaning ‘ice’, the Spanish company claimed, which could describe a brewing process involving the freezing and unfreezing of beer.

Affirming the board’s decision, the court said the signs at issue have “certain similarities” such as the fact that the letters of the earlier mark are present in the word ‘Eiskeller’ but there are also “a number of differences”.

The board was correct to find that the figurative element “showed some distinctiveness, reinforced by its central position and its applicable size”, the court said.

It added that the figurative element “is not insignificant” as its size and significant position in the mark means it is not overshadowed by the word ‘Eiskeller’.

The board did not err in finding the signs visually and conceptually dissimilar, the court concluded, adding that they “coincide phonetically in a limited way”.

In addition, the court noted that the Spanish word for ice is ‘hielo’ or ‘helado’. This is “a long way from the German word” of ‘Eis’, so the ‘Eis’ element in ‘Eiskeller’ will not be understood as referring to ice, the court said.

The court dismissed the appeal and ordered Sociedad to pay the costs.