ALDO S and ALDI can coexist

The Litigation Department of the Polish Patent Office has held that the trademarks ALDO S (and design) and ALDI can coexist on the market as there is no risk of confusion among consumers (Case Sp148/07, February 26 2008).

On July 4 2002 Aldo Sp zoo applied for the registration of the figurative trademark ALDO S for goods and services in Classes 6, 19, 35 and 37 of the Nice Classification (Application Z-252456). The services covered by the mark included "retail and wholesale of building materials". In 2005 the Patent Office allowed the registration of the trademark (Registration R-169096). The registration was published in the Official Journal of the Patent Office (06/2006).

Aldi Einkauf GmbH opposed the registration on the grounds that there was a likelihood of confusion with two of its earlier registered marks. One of these trademarks, ALDI (Registration R-173352), covered services in Class 35. Aldo found that the opposition was unjustified. The opposition proceedings were converted ex officio into an action for the cancellation of the trademark ALDO S.

During the hearing before the Litigation Department of the Patent Office, Aldo argued that:

• the trademark ALDO S differed from ALDI because of its figurative element;
  
  
• the endings of the marks are different;
  
  
• Aldo has been using its trademark in Poland since 1995, while Aldi was not present on the Polish market at that date; and
  
  
• there was no risk of confusion as to the origin of the goods and services as Aldi did not offer or sell building materials.

The Litigation Department recognized that the services covered by both marks were similar. However, the department pointed out that Aldo provides its services to a selected group of consumers in specialized stores, whereas Aldi's services are available to the general public through a network of supermarkets. The department also found that the marks were not similar from a visual and phonetic point of view.

Therefore, the department dismissed Aldi's action for the cancellation of the trademark ALDO S. The decision will become final if Aldi does not appeal to the District Administrative Court.

Slawomira Piotrowska and Tomasz Rychlicki, Patpol - Patent & Trademark Attorneys, Warsaw