Wine and cocktails held to be different types of goods
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On February 22 2010 the Supreme Court dismissed an appeal against a decision of the Tallinn Circuit Court in which the latter had found that there was no likelihood of confusion between the trademark CHILL OUT and a series of CHILL marks.
V & S Vin & Sprit is the owner of:
- an international registration for the mark CHILL OUT (and design) (Registration 793262) in Class 33 of the Nice Classification ("wine"); and
- an international registration for the word mark CHILL OUT (Registration 907183) in Class 33 ("alcoholic beverages, except beers").
The word mark CHILL OUT has currently no legal protection in Estonia.
V & S filed suit against one of Estonia's largest beverage manufacturers, AS A Le Coq, which had launched a series of cocktail drinks under trademarks containing the word 'chill': CHILL CUBA LIBRE (and design), CHILL SEX ON THE BEACH (and design) and CHILL COSMOPOLITAN (and design).
V & S requested that A Le Coq stop using the marks and remove the goods from the market. It claimed that the Chill Out brand, which has been used for wine in Estonia since 2003, is well known. Therefore, there was a likelihood of confusion between the marks, as consumers could believe that the goods came from the same undertaking or from economically linked undertakings.
The Harju County Court ruled in favour of V & S and ordered that A Le Coq:
- stop selling its cocktail drinks under the CHILL mark; and
- destroy all goods and materials bearing the mark.
The court also acknowledged that CHILL OUT was a well-known trademark.
A Le Coq appealed. The Tallinn Circuit Court upheld the appeal on December 7 2009, finding that:
- wine and cocktails are different types of goods, as they are made using different technologies and base products;
- the similarities between the marks were insufficient to give rise to a likelihood of confusion;
- the design elements of the marks helped consumers to distinguish between them; and
- the meanings of the words 'chill' and 'chill out' were different.
V & S filed a cassation appeal, but the Supreme Court did not allow the appeal.
A Le Coq subsequently filed a claim for damages in the amount of approximately Ekr6 million with the Harju County Court.
Kärt Laigu, Käosaar & Co, Tallinn
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