CRISTAL CLEAR; MODESTY DOESN'T QUITE FORBID

CRISTAL clear that confusion is likely?

The IPKat has just been reading today's Community trade mark opposition decision from the Court of First Instance in Case T-29/04, Castellblanch, SA, v OHIM, Champagne Louis Roederer SA, intervening.

Back on 1 April 1996, when OHIM opened its doors to CTM applications, Castellblanch applied to register as a CTM a figurative mark (above, right) for wines and sparkling wines in Class 33. Roederer opposed, citing its earlier Danish, French, German, Irish, UK and international registrations of the word mark CRISTAL for ‘wines originating from France, namely champagne, sparkling wines and alcoholic beverages (except beers)’, also in Class 33, as well as well-known trade marks in Belgium, France, Great Britain and Germany for ‘wines from Champagne’.

In October 1999 the Opposition Division upheld the opposition, basing its decision solely on the earlier French mark. It held that there was sufficient evidence to prove genuine use of the earlier mark and that, given the identity of the goods at issue and the similarity of the conflicting signs, as well as the highly distinctive character of the earlier mark on the French market, there was a likelihood of confusion on the part of the relevant public, namely the French consumer. In December 1999 Castellblanch appealed, limiting its trade mark application to ‘Spanish sparkling wines of the cava variety’. In November 2003 the Board of Appeal dismissed the appeal. Castellblanch appealed.

The Court of First Instance dismissed the appeal. In doing so, it had to consider the value of market survey evidence relating to the earlier mark. Said the CFI:

"66 The Gallup survey studied the ‘reputation of prestige champagne vintages in France, Italy and in the United Kingdom’ in February 1999. It is apparent from the part entitled ‘Context, objectives and methodology’ that the intervener’s representatives wished to carry out a brand awareness survey of champagne of the mark CRISTAL ‘among hotels, restaurants and upscale wine cellars’ and that the ‘information was collected from wine waiters or chief cellarmen in hotels, restaurants and upscale wine cellars’. In each of the countries studied 100 interviews were carried out.

67 It must be noted that the survey shows the renown of the mark CRISTAL for only a part of the relevant public. It did not look into the renown of the mark CRISTAL amongst average consumers, but amongst professional consumers who, moreover, are highly specialised in the field. In addition, the other documents produced by the intervener also show renown only for a specialised public, since they are mostly extracts from specialist newspapers in the wine-producing business. It cannot be established from those documents that the mark CRISTAL enjoys a reputation amongst average French consumers.

68 However, even though renown or reputation of the earlier mark cannot be found for the whole of the relevant public there is a likelihood of confusion between the opposing marks, including a likelihood of association, given the identity or, at least, the high degree of similarity between the goods in dispute and the similarity of the respective signs. It is also immaterial whether the earlier mark has intrinsically high distinctive character or not".

The CFI shot down the applicant's argument that there was no likelihood of confusion since the marks had coexisted in the marketplace. Castellblanch had not shown that any coexistence resulted from an absence of a likelihood of confusion; moreover, the coexistence was anything but peaceful since the two parties had been involved in a number of disputes involving the same marks.

Right: the secret ingredient of many CTM disputes

The IPKat is distressed to think that it has taken from April 1996 till December 2005 to get this far. Is it because the parties kept wanting adjournments and extensions, he wonders.

Roederer wines here; Castellblanch wines here
Make your own cava bottle here
Hangover cures here and here


Modesty doesn't quite forbid ...

IPKat co-blogmeister Jeremy just can't quite help getting excited about the publication today of the seventh edition of the Butterworths Intellectual Property Law Handbook, of which he is Consultant Editor. Butterworths' website says it hasn't been published yet, but Jeremy's copies have already arrived. At £105 for nearly 2,000 pages of international, regional and national (UK) IP laws, it's guaranteed to provide endless hours of fun for the dedicated reader.

The paper is really thin too so, if you don't like reading photocopies that carry the ghostly impression of whatever's printed on the other side, make sure you buy two copies and a pair of scissors ...