In short, Tirol Milch Innsbruck (TiMi) applied to register the figurative mark represented above as a Community trade mark in Class 29 for "yoghurt, fruit yoghurt, yoghurt drinks, yoghurt drinks containing fruit; semi-prepared and ready-to-serve meals based mainly on yoghurt or yoghurt products; yoghurt creams" [i.e. yoghurt and some things you can do to it]. Ferrero opposed, citing its earlier Italian registration of the word KINDER (German for "children") in Class 30 for "coffee, tea, sugar, rice, tapioca, sago, coffee substitutes; bread, biscuits, cakes, pastry and confectionery, edible ice-creams; honey, treacle, yeast and baking powders; salt, mustard; pepper, vinegar, sauces, spices; edible ice; cocoa, cocoa products, namely cocoa paste for cocoa drinks, chocolate paste, coverings, namely chocolate coverings, chocolate, pralines, decorations for Christmas trees made of chocolate, goods made of an edible chocolate case with an alcoholic filling, sugar articles, confectionery, including fine and hard pastry" [in other words, not yoghurt, or indeed anything overtly milky]. Said Ferrero, the similarity of the marks and goods will lead to a likelihood of confusion (Article 8(1)(b) of the CTM Regulation) and, in any event, it's a well-known mark and TIMI's registration takes unfair advantage of, or damages, its reputation or distinctive character without due cause under Article 8(5).
|The IPKat examines the evidence|
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