BUDMEN likely to be confused with BUD

In José Alejandro SL v Office for Harmonization in the Internal Market (OHIM), the European Court of First Instance has refused an application for registration of the Spanish mark BUDMEN as a Community trademark. The court held that there was a likelihood of confusion with US brewer Anheuser Busch's BUD mark.

José Alejandro SL, a Spanish company, filed a Community trademark application for BUDMEN in respect of goods in Classes 10, 16 and 25 of the Nice Classification. Anheuser-Busch lodged an opposition against the application based on its national registrations for BUD in Classes 16 and 25 in Denmark, Ireland and the United Kingdom. The Opposition Division of the OHIM and the Board of Appeal upheld the opposition and rejected the application for BUDMEN in respect of goods in Class 25 (clothing). José Alejandro appealed to the Court of First Instance.

The court upheld the earlier decisions and refused registration in Class 25. It agreed with the Board of Appeal that the marks BUDMEN and BUD were similar in appearance because the suffix 'men' was of minor importance. The court also stated that BUDMEN and BUD were phonetically similar as the predominant component of BUDMEN was the term 'bud', which was identical to Anheuser Busch's mark. Furthermore, the court noted that there is a general practice in the fashion business of using a major trademark and adding additional components to make the product more appealing to a particular consumer market. A registration for BUDMEN, said the court, would be likely to mislead consumers into believing that the goods were BUD-marked products for men.

The court rejected José Alejandro's claim that since the BUDMEN and BUD marks coexist in Spain, coexistence was possible throughout the European Union. The court concluded that this evidence was irrelevant because it only had to take the Danish, Irish and UK BUD registrations into account and confusion was likely in these countries.

Carsten Albrecht, Lovells, Hamburg