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A case of trademark infringement?

May 2019. Take a good look at the device marks below. The one on the left belongs to a German company, DPG, which registered it in Europe for a range of recycling services. The one on the right is a new European mark which has been applied for by a Lithuanian company, also for recycling services. The German company has filed an opposition. What’s your view? Does the trademark on the right infringe the one on the left.

Litmus test

We decided to canvas our colleagues (who are all trademark specialists after all) here in the office. The outcome was crystal-clear: almost no-one saw the second logo as an infringement. The European General Court, however, came to an equally clear yet quite different conclusion. On 11 April, they ruled that it was most definitely a case of infringement.

Visual and conceptual

Since both devices feature a bottle and an arrow pointing left, the Court felt they were similar, both visually and conceptually.

Identical services, for the general public

Although these devices are inherently weak – given that arrows and bottles are often used to denote recycling – the Court felt there was a risk of confusion. A key factor was that both trademarks were registered for the same services (recycling) and both were targeted at (among others) the general public, i.e. the man or woman in the street. This target audience doesn’t tend to study these types of trademark in detail and therefore retains a slightly vaguer overall impression.

Difficulty

Although the rule of thumb is that the European Court is always right, we have some difficulty with this judgement. Did it sufficiently factor in the (not insignificant) differences between the two device marks (the framework, the cup and the shape of the arrow)? And shouldn’t more weight have been given to the fact that a bottle-and-arrow device to denote recycling isn’t very distinctive? Perhaps. But as we know, the European Court is always right.

Bas Kist