Karlsberg successfully opposes 'mystery' registration

European Union

In Mystery Drinks GmbH v Office for Harmonization in the Internal Mark (OHIM), the European Court of First Instance has upheld a decision by the OHIM Board of Appeal ruling that the word 'mystery' may not be registered as a Community trademark. The court found that there was a likelihood of confusion with Karlsberg Brauerei KG Weber's trademark MIXERY, even though MIXERY does not have a high degree of either inherent or acquired distinctiveness.

Mystery Drinks applied to register the word 'mystery' as a Community trademark in a stylized form for foodstuffs and non-alcoholic beverages. Karlsberg opposed the application on the grounds that there was a likelihood of confusion with its earlier German registration for MIXERY in relation to beers and beverages containing beer. The OHIM rejected the opposition. Karlsberg appealed.

The Board of Appeal reversed the decision in part, holding that, pursuant to Article 8(1)(b) of the Community Trademark Regulation, there was a likelihood of confusion between the marks in respect of non-alcoholic beverages (because Karlsberg's mixed beverages may be non-alcoholic), but not in respect of foodstuffs. Mystery appealed to the Court of First Instance.

The court upheld the Board of Appeal's decision. Despite finding that the evidence produced by Karlsberg was insufficient to support its claim that the MIXERY mark has inherent or acquired distinctiveness, it reasoned that this was not enough to render the board's decision invalid. The court found that even though the marks are not confusingly similar visually, the fact that they are aurally similar would create a likelihood of confusion when used in relation to non-alcoholic beverages. Accordingly, the court rejected Mystery's application to register 'mystery' as a Community trademark in relation to non-alcoholic beverages.

Chris McLeod, McDermott Will & Emery, London

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