Milk without cookies - complementarity revisited
Are biscuits, cakes and pastries similar to milk and coffee based beverages? In previous articles (see related articles below) we have looked at the not always consistent approach taken by the General Court (GC) in considering the similarity between two sets of goods.
Monster Energy Company v Home Focus Development Ltd
Monster Energy Company, owner of the well known MONSTER brand, opposed the registration of the word sign MoMo MONSTERS filed for a wide range of goods and services. For the most part, they were successful but not in class 30 where the application covered confectionery; biscuits, cakes and pastries. The earlier Community word mark MONSTER registration was protected for milk-based and coffee-based beverages. The Opposition Division (OD) rejected the opposition for these goods and this decision was upheld by the Board of Appeal (BoA).
The matter came before the General Court. Monster Energy Company contended that the two sets of goods served the same purpose, were competing or complementary, were sold in the same premises, share the same distribution channels and were aimed at the same consumers.
The GC confirmed the issues to consider for the goods related to:
- their nature;
- their intended purpose and method of use;
- whether they are in competition with each other or are complementary; and
- the distribution channels of the goods concerned.
The GC held that the nature of the goods were clearly different, as was their intended purpose - one was for eating, the other for drinking. Regarding competition, there must be an element of interchangeability. As the two sets of goods have different purposes, the court held there cannot be any interchangeability.
Finally, the court confirmed from previous case law that two goods are complementary where they are closely connected in the sense that one is indispensable or important for using the other, such that consumers may think that the same company is responsible for manufacturing those goods. Although biscuits, cakes and pastries may be consumed together with those beverages covered by the earlier mark, their use as such is optional and they are not absolutely indispensable for the consumption of those beverages.
The court therefore confirmed, rightly in our view, that there was no similarity between the goods.
Turning to the submissions regarding the products being sold in the same commercial establishments, sharing the same distribution channels and being intended for the same consumers, the GC stated that the evidence put forward by the applicant with regard to the identical nature of the distribution channels related only to certain specific outlets such as coffee shops.
Furthermore, as this evidence was not submitted during the procedure before the OD or the BoA and was only presented for the first time before the GC, the GC upheld OHIM's complaint that it was too late to be taken into consideration.
Case details at a glance
Jurisdiction: European Union
Decision level: General Court
Parties: Monster Energy Company v OHIM, the other party to the proceedings being Home Focus Development Ltd
Date: 28 October 2015
Full decision: http://dycip.com/monstervohi