JÄGARBRÄNNVIN brand shot down for being confusingly similar

Sweden

The Swedish Supreme Court has ruled in Mast-Jägermeister Aktiengesellschaft v V & S Vin & Sprit Aktiebolag (Case T 2982-01) that the defendant's use of the mark JÄGARBRÄNNVIN infringed the plaintiff's rights in the marks JÄGER and JÄGERMEISTER, thereby reversing two lower court decisions.

Mast-Jägermeister has been the registered owner of JÄGER and JÄGERMEISTER for many years. The marks are registered in relation to beer and alcoholic beverages in Classes 32 and 33 of the Nice Classification. Later, in 1997, when V & S Vin & Sprit began marketing liquor under the trademark JÄGARBRÄNNVIN, Mast-Jägermeister instituted proceedings for trademark infringement.

The court of first instance, and then the appeals court, found that the goods in question were different and that the parties' marks were not confusingly similar. The courts noted that whereas Mast-Jägermeister applied its marks to liquor that is normally consumed as shots with beer, V&S applied its mark to schnapps - normally consumed with food.

On appeal, the Supreme Court reversed. In an unusual move, the court referred to the European Court of Justice's (ECJ) decisions in Canon Kabushiki Kaisha v Metro-Glodwyn-Mayer Inc and Lloyd Schufabrik Meyer & Co GmbH v Klijsen Handel BV where the ECJ held that:

"the directive provides that a trademark must be capable of distinguishing the goods or services of one undertaking from those of other undertakings [and] that the function of the protection conferred by the mark is primarily to guarantee the indication of origin."

Thus, the Supreme Court found that there was a likelihood of confusion within the meaning of Article 4(1)(b) of the Community Trademark Directive because there was a risk that the public might think that the goods in question came from the same undertaking. V & S was ordered to stop using JÄGARBRÄNNVIN in association with schnapps.

Pär Leander and Henrik Lindström, Magnusson Wahlin Qvist Stanbrook Advokatbyrå KB, Stockholm

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