Brussels Court of Appeal decides on Belgian beer battle
The Brussels Court of Appeal has recently dealt with an interesting trademark infringement case pertaining to the abstract colour mark blue owned by Belgian beer brewer Alken-Maes. Maes, which is part of the Heineken group, is one of Belgium's oldest breweries. As early as the 1960s, it began marketing its lager under a trade dress using a distinct shade of dark blue.
In 2006 Maes successfully applied for registration of an abstract colour mark, claiming protection for the International Pantone Code 2478C in relation to beers.
In 2012 InBev Belgium, part of Anheuser-Bush InBev (the world's largest brewing conglomerate), redesigned its low-alcohol beer, changing from JUPILER BLUE to BLUE BY JUPILER under the following trade dress:
Maes sought injunctive relief, relying on, among other things, the infringement of its colour mark which it claimed was well known in part of Benelux. Surveys had shown that over 60% of Belgian consumers attribute the distinct shade of dark blue to beer – in particular, to Maes.
In an October 21 2013 decision the Brussels Court of Appeal accepted the validity of the colour mark and upheld the infringement. The verdict did not come as a bolt from the blue, as it confirmed an earlier decision of a lower court, albeit on slightly different grounds. Regarding the infringement of the mark which Maes based on the enlarged protection offered to well-known marks, the court held as follows:
- The use by InBev of the colour blue for its beer packaging was done "as a trademark" – that is, with the intention to distinguish the origin of the product. According to the court, that finding was apparent from the predominant appearance of the blue colour on the cans and bottles, which was further strengthened by the meaning of the word 'blue'.
- The colour mark is well known, which was evidenced by its long-lasting and heavy use on the Belgian market, as well as by the associated investments for advertising emphasising the use of that colour. The recognition that the mark enjoyed among 60% of Belgian consumers was largely sufficient for the mark to be considered as enjoying a reputation in Benelux.
- Although not identical, there was a high degree of similarity between the mark and the packaging, to the extent that the average consumer of beers, who rarely makes a direct comparison between the products, would be likely to establish a link between both. The finding that consumers would recall the mark when seeing InBev's packaging was not called into question by the addition of the well-known mark JUPILER and the bull logo, because these marks were less prominent and visible, especially when seen on the shelves from a certain distance.
- InBev's trademark use of a highly similar colour was likely to cause detriment to the distinctive character of the colour mark. That, according to the court, was sufficiently clear from InBev's counterclaim seeking to annul the colour mark for lack of distinctive character by relying on examples of other beers using a shade of blue.
- Finally, InBev could not rely on any due cause for the infringing use. The prior use of the colour blue which InBev claimed was deemed to be irrelevant by the court because the shade of blue used for the previous packaging – before its rebranding – was different and was also used in a less distinctive way.
In addition to the trademark infringement, the appeal court confirmed that the marketing of the cans and bottles in shops constituted a misleading trade practice. According to the court, the global visual similarity conveyed by both products as seen from a distance on shelves, which was evidenced by pictures taken in shops, was likely to cause consumers to take a transactional decision that they would not have taken otherwise.
This colour mark verdict is the latest in a series of decisions in which Belgian courts have ruled in favour of the trademark owner. Earlier cases included the blue-silver colour mark of Red Bull, the heavenly blue colour mark of Rizla and the orange colour mark of Veuve Clicquot (see here and here).
InBev can appeal on points of law before the Supreme Court.
Jeroen Muyldermans, ALTIUS, Brussels
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