AB InBev ordered to recall Jupiler Blue over colour mark infringement

In a judgment issued on July 6 2012, the Commercial Court of Brussels upheld a complaint by Belgian brewer Alken-Maes against the packaging chosen by rival brewer Anheuser-Busch InBev (AB InBev) for its Jupiler Blue beer.

For many years Alken-Maes has invested heavily in its Maes brand of beer, which is sold in famous blue cans and bottles. Recent market research shows that 60% of Belgian consumers automatically associate the colour blue with Maes beer, proving that Alken-Maes' colour trademark has a reputation in the Benelux countries.

In its judgment, the court ruled that most consumers would select Maes beer from among the various beers available in shops and supermarkets on the basis of the colour of its packaging. It found that, by employing an identical shade of blue for the packaging of Jupiler Blue, AB InBev had infringed Alken-Maes' abstract colour trademark.

The parties' products

The court further held that a number of other factors contributed to the likelihood of confusion among the public, including:

• the similar positioning of the word 'blue', in a similar font;
• the use of a very similar blue-and-white colour scheme; and
• a design in which the name 'Jupiler' was barely noticeable against the background.

AB InBev was given one month to withdraw every can and bottle of Jupiler Blue from the Belgian market. It has appealed the decision.

Paul Maeyaert and Jeroen Muyldermans, ALTIUS, Brussels