WHEN PORK GOES "MOU"

In Oriental Kitchen Sarl v Office for Harmonisation in the Internal Market, Case T-286/02, the Court of First Instance of the European Communities reaffirmed the principle established in Matratzen v OHIM [2003] ETMR 392, that descriptive terms were registrable as trade marks if the description was in a language not known in the jurisdiction in question. Oriental Kitchen (OK) applied to OHIM to register the word mark KIAP MOU for goods in Classes 29 and 30 (including meat and prepared dishes). An opposition was filed by Mou Dybfros, owners of the MOU registered trade mark in the UK for goods in Classes 29 and 30. The Opposition Division rejected the application, there being a risk of confusion since the marks and the goods were similar. OK appealed unsuccessfully to Board of Appeal and then appealed further to the Court of First Instance (CFI). OK argued that OHIM had misapplied Art.8(1)(b) Council Regulation 40/94, that it only intended its products to appeal to expatriate Chinese and Indonesians living in Western Europe and that "mou", being the Thai word for pork, was merely descriptive and could not therefore be protected.

The CFI rejected OK's application. The Court did not have to take into account the fact that Oriental kitchen had intended its products to appeal exclusively to a Chinese or Indonesian clientele living in western Europe. There was nothing in the trade mark application to suggest that Oriental Kitchen had intended this to be the case. Further, the products went through the same sales channels and outlets as those sold to the average consumer. Finally, the fact that the term "mou" had a meaning in Thai did not affect the definition of the relevant public. Also, there was nothing to prevent the products at issue from being sold under the mark at issue to the same wider public, as was targeted by the earlier mark. Therefore, in view of those considerations, the relevant public for the mark at issue was the average consumer of foodstuffs in the UK. The goods on which OK and Mou Dybfros used the marks were identical. So far as visual and aural similarity, "mou" was both a unique term constituting the entirety of the earlier mark and the second word of "kiap mou". In terms of conceptual similarity, the words "mou" "kiap" and "kiap mou" had no meaning for consumers in the relevant market (the UK), for whom "mou" could not therefore be descriptive. Since the same applied for "kiap", both those terms were equally engaging to the relevant public and would be perceived by the public as equally dominant components without affecting the distinctive character of "mou". OHIM's Board of Appeal was therefore correct in finding that the respective signs were similar. UK consumers would be likely to think that the food sold under the mark KIAP MOU could come from the same enterprise as that owning the trade mark MOU. OK's appeal was therefore dismissed.

The IPKat thinks this analysis must be right. If the MOU and KIAP MOU registrations were allowed to stand together in respect of the same products, the commercial utility of one or both of them would inevitably be severely compromised.

More on mou here, here, here and here
Noises that pigs make here