The Court of First Instance of the European Communities gave its ruling today in Case T‑204/06, Vivartia ABEE Proïonton Diatrofis kai Ypiresion Estiasis, formerly Delta Protypos Viomichania Galaktos AE v Office for Harmonisation in the Internal Market, Kraft Foods Schweiz Holding AG intervening. This was Vivartia's second appeal against a decision to uphold an opposition to its application to register the above mark in Class 30 for 'milk with cocoa'. The opponent alleged that this mark was likely to be confused with its own earlier marks for various milky and chocolaty items in Classes 29 and 30, including the Community trade mark reproduced below.
The main issue was that of similarity of marks. The Opposition Division, Board of Appeal and Court of First Instance all concluded that they were sufficiently similar to produce a likelihood of confusion in the relevant consumer. On similarity of marks the Court had this to say:
"37 ... the mark applied for is composed of two components ‘milko’ and ‘ΔΕΛΤΑ’ [a Greek word, pronounced "delta"], a design representing a white milkmaid inside a green triangle against a background of red lines and coloured motifs surrounding the word ‘milko’. As regards the earlier mark, which was registered in black and white, that is composed of a single word element ‘milka’ inscribed in white letters on a dark rectangle. Because the rectangle is insignificant, the word ‘milka’ is the dominant element of the earlier mark.The IPKat really struggles with the bit that says "the relevant public will associate the word element ‘milko’ with ‘milka’ because those words do not have any meaning". To him, as a milk-drinking cat, milko and milka both mean "milk" with a redundant syllable at the end, just as Orlwoola suggests "all wool" with a redundant final syllable. Merpel says, it seems that Milko has been on the market in Greece for a while. Could it be that, it Milko is confusingly similar to Milka in Europe, Milka is confusingly similar to Milko in the cradle of democracy too?
38 First, as regards visual comparison, certainly the word element ‘milko’ occupies a more distinctive position in the mark applied for. That component is ... clearly the largest. Next, it is located at the top of the mark applied for. It is therefore more likely to attract the attention of the relevant public and to be easily noticed and remembered. That word element closely resembles the dominant word element ‘milka’ in the earlier mark. The Board of Appeal rightly states that both marks use a similar diagonal written representation for the words ‘milko’ and ‘milka’, and that the peculiarly stylised letter ‘m’ in both components is very similar. In addition, the vowels ‘o’ and ‘a’ of those components have practically the same shape.
39 Admittedly, the mark applied for contains a number of additional elements that distinguish it from the earlier mark. However, the Board of Appeal rightly states that the figurative element, comprising a milkmaid inside a green triangle against a background of red lines, will be perceived by the relevant public as ornamental. The figurative element of the milkmaid, particularly for milk products, is not, moreover, an especially original or fanciful representation likely to attract the attention of the average consumers of the goods in question.
40 As regards the ‘ΔΕΛΤΑ’ component, that occupies a position of clearly secondary importance in the mark applied for when taken as a whole. It is located at the very bottom of the mark and is much smaller than the word element ‘milko’ and even the figurative element of the milkmaid. In addition, the ‘ΔΕΛΤΑ’ component is difficult to understand for European consumers who are not familiar with the Greek alphabet, which is an additional reason for asserting that the relevant public will focus more on the word element ‘milko’.
41 Thus, the differences ... are not sufficiently great to overcome the similarity arising from the word ‘milko’. In the light of those circumstances, the Board of Appeal did not err ... in holding that the signs at issue were similar, when it compared them visually, taking each sign as a whole.
42 Second, as regards phonetic comparison, ... the words ‘milko’ and ‘milka’ are very similar phonetically. The addition of the ‘ΔΕΛΤΑ’ component cannot call into question that similarity. Even if the relevant public were to perceive ‘ΔΕΛΤΑ’ as a Greek word, a significant part of that public would not know how to pronounce that word, and will accordingly tend to omit it when referring to the mark applied for orally.
43 In that connection, the applicant’s submission that, if they are unable to read the ‘ΔΕΛΤΑ’ component correctly in Greek, most consumers will tend to pronounce its Latin equivalent ‘delta’ must be rejected. Such an argument is based on the premiss that those consumers are familiar with the capital letters ‘Δ’ and ‘Λ’ in the Greek alphabet. The goods covered by the marks at issue are everyday consumer goods and are therefore targeted at the general public. ... most European consumers do not know the Greek alphabet and that only a category of more erudite consumers would know it.
44 Therefore, the Board of Appeal’s finding ... that at least a significant part of the public will not pronounce the ‘ΔΕΛΤΑ’ component when referring to the signs orally, since it does not know how to, must be upheld.
45 Third, as regards conceptual comparison, the Board of Appeal correctly states that the word elements ‘milka’ and ‘milko’ are invented words and do not have any meaning in any of the official languages of the Community. Therefore, as the Board observes ..., the relevant public will associate the word element ‘milko’ with ‘milka’ because those words do not have any meaning.
46 In addition, for non-Greek-speaking consumers, the signs at issue do not have any conceptual differentiating elements that can counteract the visual and phonetic similarities. The ‘ΔΕΛΤΑ’ component cannot have the impact that the applicant wishes to have accepted on the conceptual comparison. ... a large proportion of European consumers will not be able to read or understand that word written in Greek. In those circumstances, that word element cannot be regarded as introducing a new concept that the consumer will associate with the mark applied for".
Why cats shouldn't drink chocolate milk here and here
ADDENDUM: after the item above was posted, the IPKat received the following verses from a distinguished gentleman who sometimes supplies this blog with news and comments:
It appears not only curiosity
But also chocolate can kill a cat
Must admit I never intended
To feed you some of that.
I may feed you lots and lots
Of pure bull and crap
But from now on I'll keep
The bars safely under wrap ...