No infringement

Polish company Mieszko holds a European trademark registration for the design of its Cherrissimo packaging. When competitor Vobro (also from Poland) applies for European protection for its Cherry Passion packaging, Mieszko files an opposition. The Opposition Division of the European trademark office EUIPO finds that there is no infringement. The images used are hardly distinctive and consumers do see the difference through the words Mieszko and Passion.

Inbreuk Cherrissimo
On the left the earlier trademark registration Cherrissimo, on the right the later Cherry Passion application

Infringement though

But Mieszko didn’t buy it and the company appealed. The Board of Appeal (BOA) then rules that it is trademark infringement. The fact that both packages contain different words does not mean that there is no likelihood of confusion, according to the BOA. After all, in the supermarket the consumer drives his cart at some distance and at some speed along the shelf. Thus, he sees the packaging more in a flash and images stick rather than words. In this case, the images and colors are very similar, so there is a risk of confusion: thus infringement. This is later confirmed by the European General Court. A ruling I can well live with.

UK: a different cup of tea

The dispute in the UK between Thatchers Cider Company and Aldi, however, is a different cup of tea. When Aldi introduces its own Lemon Cider Taurus in the UK in 2022, A-brand Thatchers immediately objects. Thatchers has registered its own lemon cider packaging as a trademark in the UK and believes that Aldi is getting very close to it with its Taurus. However, the English High Court thinks otherwise. No infringement, says the judge.

Inbreuk Thatchers
Left is the trademark registration of Thatchers packaging

Adding lemons

Yes, those packages have some visual similarity, but they are still dominated by the words Thatchers and Taurus and visual elements such as that bull’s head, the judge said. Hmmm, isn’t that again a bit at odds with what the European judge just said about those chocolate packages? Moreover, the High Court continued, the colors yellow and green are much more commonly used for lemon drinks. And even the fact that Aldi arguably instructed its designer to add lemons so that “the Aldi Product would be a “hybrid of Thatchers and Taurus,” is not enough for the court to punish the Taurus. This, in turn, is a ruling I can live with less well. The outcome of such conflicts remains difficult to predict.

Bas Kist