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KORDAAT – KORNUIT: 1-0

March 2019. Dutch brewer Grolsch has lost its dispute with Lidl, which means the discount supermarket can carry on selling its own-brand beer under the name Kordaat. On 28 February, the District Court in Rotterdam ruled there was no risk that Lidl’s trademark Kordaat could be confused with the trade name Kornuit, which is owned by brewing giant Grolsch

WIDE OF THE MARK

So I was clearly wide of the mark in my previous blog about Kornuit. I should have known that putting all my money on Kornuit was a risky business, given how divided opinions were even here in the office. Those who plumped for Kordaat won the day.

THREE POINTS OF SIMILARITY

When considering whether a trademark infringement has taken place, a court looks for three points of similarity: visual, aural and/or conceptual similarity. It’s always interesting to see how they weigh up these various aspects.

CONCEPTUAL

Surprisingly perhaps, the court disregarded the difference in meaning between the two trademarks (kornuit = pal and kordaat = resolute), which was one of Lidl’s main arguments. The court felt it wasn’t clear whether Dutch speakers would still know what each word actually meant and hence the difference between them. Both words are quite old-fashioned. The Court therefore was unwilling to draw any conclusions in that regard. Round one to Kornuit one should say.

VISUAL

The court found there was only a very limited visual similarity between Kornuit and Kordaat. It did conclude, however, that the different appearance of the respective letter combinations ‘nui’ and ‘daa’ was crucial. Agreed. That’s clear enough.

AUDITORY

But I find the court’s view of the aural similarity between the two trademarks surprising, given that my own conclusion (= Kordaat was an infringement) was based primarily on the auditory similarity between the words. To my ear, Kordaat sounds fairly close to Kornuit: both consist of a prefix Kor- and a suffix containing a four-letter syllable ending in T.

However, the court concluded that there was only a limited aural similarity, and based its view on what strikes me as an interesting argument: i.e. because ‘the sound of the syllable on which the vocal stress falls predominates’. But isn’t the aural similarity strengthened precisely because the emphasis in both trademarks falls on the second syllable? This makes the rhythm of both words – and hence their sound – very close. If the stress in one of the trademarks had been on Kór, then the aural similarity would have been far weaker.

APPEAL?

That’s all well and good, but the court has issued its decision and the court is always right. Only a Court of Appeal can overturn it, and Grolsch may soon take a decision on whether to go to appeal.