ROYAL wine battle sees win for Rioja producer

The European Court of First Instance (CFI) has allowed Bodegas Franco-Españolas SA's application to register ROYAL as a Community trademark for Rioja wines in Class 33 of the Nice Classification.

The application was opposed by Companhia Geral da Agricultura das Vinhas do Alto Douro SA on the grounds that the ROYAL mark was likely to cause confusion with its prior registered ROYAL FEITORA mark for Port wine. The Office for Harmonization in the Internal Market and the Board of Appeal agreed. However, the CFI overturned these rulings on appeal.

The CFI held that although the goods in question were in the same category, namely alcoholic beverages, used the same distribution channels and were sold in the same places, they were not identical and could be clearly differentiated by their dissimilar origins, nature, intended purpose and use. The court stated that:

• Rioja wine is drunk during meals, whereas Port is drunk as an aperitif or digestif, depending on habits;
  
  
• Port has an alcohol content of 19 to 22 degrees, which is more than Rioja wine; and
  
  
• Port is made in Portugal as opposed to Rioja wine which is produced in the Spanish region of the same name.

The court also noted that Port wine is characterized by a short fermentation and the addition of grape spirits, whereas the wines of Rioja are made following a complete fermentation process and without the addition of grape spirits. The CFI ruled that the two types of wine were not interchangeable and that an average consumer, not only in Portugal but also in the rest of the European Union would consider them to have a low degree of similarity.

In relation to the similarity of the marks, the court held that in view of the low distinctive nature of the word 'ROYAL', the element 'FEITORIA' in the earlier mark was sufficient to distinguish the marks from each other both phonetically and visually.

In short, the decision, which is still not final, since a cassation appeal may be filed against it at the European Court of Justice, continues with the tendency to radically limit similarity when comparing products even if they are in the same category.

Ignacio D Rivera, Elzaburu, Madrid