Olympos not a misleading geographical indication

Greek company VIGLA AEVE Dairy Products (VADP) filed four cancellation petitions and challenged the validity of the following trademarks that were registered in the name of the company Dairy Industry of Larissa SA (DIL) (Cases 166/2005, 167/2005, 168/2005, 169/2005, January 29 2007):

• Registration 159697 covering milk in Class 29 of the Nice Classification;
  
  
• Registration 169107 covering yogurt and dairy products in Class 29;
  
  
• Registration 163896 covering milk and dairy products in Class 29 and ice cream, yogurt-based desserts and chocolate milk in Class 30; and
  
  
• Registration 150741 covering milk, dairy products and delicatessen goods in Class 29, ice cream, pastries and desserts in Class 30, and fruit juices in Class 32.

All of the above trademarks were complex marks comprising of the name Olympos (ΟΛΥΜΠΟΣ in Greek) - the Greek name for mount Olympus - as well as additional graphic and word elements. VADP, which is located in the vicinity of mount Olympus, alleged that the name Olympos was the dominant element of all four trademarks and that it served as a misleading geographical indication (GI) as the dairy products covered by marks were not, in fact, produced in Olympus and that, in any event, the marks lacked the capacity to distinguish DIL's products from those of other parties.

The Administrative Trademark Committee issued a majority decision in favour of DIL and rejected the cancellation claims. It first took into account the fact that DIL, which was founded in 1965, was registered with the local Chamber of Commerce under the distinguishing title 'Olympos'. In addition, DIL has been using the name Olympos continuously for 40 years in all of its transactions as a company. The committee also noted that DIL owned a large number of OLYMPOS marks (including Community and international trademark registrations). Based on this evidence, it determined that the name Olympos had acquired distinguishing power over the 40 years of use by DIL and was not used, as VADP had asserted, as a misleading GI. The committee noted that in order to make a finding of misleading use of a GI, the GI must be used on its own and not in conjunction with other elements.

The committee's finding was further supported by the fact that the local Chamber of Commerce in the city of Larissa had deleted from its register VADP's distinguishing title 'Vigla Olympou' because it was deemed to be confusingly similar to DIL's earlier distinguishing title 'Olympos'. Moreover, the committee relied on a petition for injunction decision issued by the relevant local court, which effectively enjoined VADP from using the name Olympos as its distinguishing title, or on its products, advertisements and its printed material in general.

In addition, the committee made an interesting assessment of the current status of GIs in Greece, as it emphasized the fact that, in the Greek market, it is quite common to use GIs as trademarks, and thus the Greek consuming public is quite familiar with this practice and does not mistake trademarks such as, among others, IPIROS for feta cheese, PINDOS for poultry and KORPI for mineral water as necessarily being GIs per se.

Further, the committee opted to take into account a consumer survey which indicated that only 3.8% of respondents believed that Olympos milk actually originated from mount Olympus while 47% believed that such milk originated from areas such as Thessalia. Another consumer survey, also taken into account by the committee, reflected the fact that the majority of consumers who selected Olympos milk were not influenced by its geographical origin, but instead based their selection on the quality of the particular product, irrespective of where it originated from in Greece.

Finally, the committee examined VADP's allegations that DIL's advertisements featuring the Olympos name constituted misleading trademark use by DIL. The committee determined that advertisements, on their own, do not qualify as trademark use per se and, as such, they cannot be deemed to qualify as misleading trademark use. Trademark use, based on the relevant precedent and legal theory, is in fact the affixing of the particular mark on the products and their packaging. It would be a disproportionate means of recourse to delete a trademark from the register as a form of sanction for alleged misleading advertising since such recourse is available under other provisions of law (ie, the Unfair Competition Law), and other tribunals have jurisdiction for such issues.

Eleni Lappa, Dr Helen G Papaconstantinou, John V Filias & Associates, Athens