In the evidence supporting the opposition, Coca-Cola showed screen shots from Mitico’s website showing how Mitico was using the attacked mark, although the Opposition Division and the Board of Appeal did not take into account that evidence because they found the marks dissimilar. The General Court found that there was a low degree of similarity and directed that the Board of Appeal take the evidence into consideration for Article 8(5).

The Board of Appeal dismissed the opposition again, deciding that the evidence taken from Mitico’s website could not support the allegation of free riding because it was not shown that Mitico had presented the goods as shown on the website in the EU, and, just because a party chose to display goods in a particular way on its website to promote goods in certain territories did not mean that it would promote goods in the same way in the EU.

The court confirmed that the fact that the website did not target EU consumers did not make reference to the website irrelevant as it could serve as a basis for a logical inference; use in countries outside the EU could support a ground that a mark is taking unfair advantage of the reputation of earlier marks in the EU.

The General Court has remained consistent with its previous decision in these proceedings and confirmed that evidence of how an applicant is using a mark outside of the EU “may serve as a basis for a logical inference on the likely commercial use of the mark applied for” in EU opposition proceedings.

Case details at a glance

Jurisdiction: European Union
Decision level: General Court
Parties: The Coca-Cola Company (applicant) v EUIPO (defendant) and Modern Industrial & Trading Investment Co. Ltd (Mitico)
Citation: T‑61/16
Date: 07 December 2017
Full decision (InfoCuria): http://dycip.com/coca-colavmitico