EU trade mark disputes: Acer’s PREDATOR - EU trade mark dispute: CHIPSY KINGS v Curry Kings

EU trade mark dispute: Acer’s PREDATOR 

On 20 November, the General Court of the European Union (GCEU) ruled in case T-1163/23 concerning EU trade mark No. 015171234, PREDATOR, owned by Taiwanese tech company Acer Inc.

In 2017, Polish company Domator24 sp.z registered EU word mark No. 016757262, PREDATOR with the European Union Intellectual Property Office (EUIPO), covering goods in Class 20 of the Nice Classification, such as armchairs, office chairs, desk seats and cushions. In 2021, Acer filed an application for a declaration of invalidity of the trade mark on the basis of its identical earlier EU word mark PREDATOR, which covers goods in Class 9, including computers, IT equipment, laptops, tablets, keyboards, mice, monitors and headsets.

In the first instance, the Cancellation Division rejected the application for a declaration of invalidity in its entirety. However, the Board of Appeal considered that the relevant public was the general public with a medium to high level of attention and that the goods in Classes 9 and 20 while similar to a low degree were complementary due to their common distribution channels and common target consumers, except for cushions, which were considered to be different. As the signs were identical and the earlier mark had a medium degree of distinctiveness, it held that there was a likelihood of confusion for all goods except cushions and consequently declared the mark partially invalid.

The Polish company appealed against that decision to the General Court of the European Union, which had to determine whether there was a likelihood of confusion between the marks at issue.

After analysing the similarity of the "PREDATOR" marks, the Court upheld the decision of the EUIPO, concluding that it had correctly assessed the similarity of the goods and the likelihood of consumer confusion. Although the Polish company argued that the EUIPO had not properly assessed the evidence submitted, the Court pointed out that all relevant factors, including distribution channels and target consumers, had been taken into account. For instance, it was noted that online shops often offer a variety of products from different market segments, which may lead consumers not to associate products from different categories with the same commercial origin. Furthermore, although the products may be complementary, this does not mean that the end users of the products in question are the same. The EUIPO pointed out that the purchase of an armchair or a sofa is generally not accompanied by the purchase of a computer, which reinforces the idea that the relevant public for these products is different. The Court therefore dismissed the appeal and ordered Domator24 to pay the costs.

EU trade mark dispute: CHIPSY KINGS v Curry King

On 11 December, the CGEU ruled in case T-157/24 concerning the EU word mark No. 018416564, CHIPSY KINGS, owned by Mr András Lénárd, a businessman residing in Romania.

Mr Lénárd applied to the EUIPO to register the EU word mark in respect of goods and services in Classes 29, 30 and 35 of the Nice Classification, such as French fries, potato fritters, wholemeal crisps, cereal-based crisps and retail food services. However, a German company, Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH, opposed the registration on the basis of its earlier international word mark No. 1285017, Curry King, which covers goods in Classes 29 and 30, such as meat products, vegetarian products, potato products and prepared dishes consisting mainly of cereals and/or rice and/or sauces and/or spices.

Both the Opposition Division and the Board of Appeal rejected the opposition on the ground that there was no likelihood of confusion under Article 8(1)(b) EUTMR. The German company appealed against this decision to the General Court of the European Union, which had to determine whether there was a likelihood of confusion between the marks at issue.

The Court upheld the decision of the Board of Appeal. As regards the goods in Class 29, the 'potato crisps' and other snacks covered by the mark applied for were considered to be identical to the 'prepared dishes mainly consisting of potatoes' of the earlier mark. In Class 30, the 'potato flour snacks' were considered to be moderately similar to the 'prepared dishes' of the earlier mark, given the common ingredients, possible producers and distribution channels, even though their purpose was different (snacks versus main meals). Furthermore, the retail services in Class 35 were found to have some similarity with the goods in Classes 29 and 30.

Even though the products were indeed similar, the Court held that there was not risk of confusion between the two marks. As regards the conceptual comparison, the Board of Appeal considered that the words 'curry' and 'king' in the earlier mark had a low degree of distinctiveness, since 'king' was laudatory and 'curry' descriptive. In contrast, the term 'chipsy' could be perceived in different ways: as a descriptive term for 'chips' with a low degree of distinctiveness, or as an invented word with a higher degree of distinctiveness, surpassing that of 'king'. In the visual comparison, although both marks share the element 'king', the presence of the 's' in 'kings' and the replacement of 'curry' by 'chipsy' contribute to a clear visual difference.  Moreover, at the phonetic level, although both marks share the pronunciation of 'king', the differences in the pronunciation of 'chipsy' and 'curry' create a significant contrast which prevents the common element 'king' from being decisive in the overall phonetic comparison.  Therefore, the General Court dismissed the German company's appeal.