Some EU consumers don’t know what hell is

European Union

In Hell Energy Magyarország kft v Office for Harmonisation in the Internal Market (OHIM) (Case T-522/10, January 17 2012), the General Court has dismissed Hell Energy Magyarország kft's appeal against a decision of the First Board of Appeal of OHIM finding that there was a likelihood of confusion between the figurative trademark HELL (depicted below) and the earlier word mark HELLA.

The Opposition Division of OHIM, and then the First Board of Appeal, both found that there was a likelihood of confusion, and the General Court came to the same conclusion: there were obvious visual and aural similarities between the two marks, and the goods that they covered (energy drinks for the mark applied for, and non-alcoholic drinks for the earlier mark) were similar.

In particular, the court stated that energy drinks fall within the broader category of non-alcoholic drinks. Hell Energy was unsuccessful in persuading the court that energy drinks fall within a distinct class of beverages that are not similar to non-alcoholic drinks. Hell Energy's argument that the target consumers for each type of drink are different also failed to resonate with the court: Hell Energy had contended that the average consumers of energy drinks were mainly teenagers, who were a highly specific public and tended to pay more than the usual amount of attention when selecting this type of drink.

Hell Energy had also argued that:

  • there was a certain conceptual difference between the marks stemming from the meaning of the word 'hell'; and
  • the marks were visually different due to the colours and stylised font used in its mark.

Perhaps the court's most surprising finding was that the average consumer in certain EU member states would not know the meaning of the word 'hell', and that the graphic elements of the mark applied for were not sufficiently elaborate to facilitate the understanding of that meaning.

It would have been interesting if the court had named those countries where, in its view, the general knowledge of English is so low that the average consumer would not know the meaning of the word 'hell', as this is an important factor for practitioners to defend their clients' interests effectively. Arguably, a majority of Spanish citizens know the meaning of 'hell', which is not a technical or erudite word, but an elementary, commonly used noun of the English language.

The judgment may be appealed to the Court of Justice of the European Union based only on issues of law.

Ramón Cañizares, Elzaburu. Alicante

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