HALLOUMI V BBQLOUMI: Court Of Justice Sends Case Back To The ...

The Court of Justice has today set aside the General Court’s ruling, in the appeal case Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO (C-766/18 P).

The General Court had ruled in (T‑328/17) that the collective mark HALLOUMI, reserved for Cypriot cheesemakers, did not prevent registration of the sign BBQLOUMI from being registered as an EU trademark by a Bulgarian cheese producer. That court found that HALLOUMI has a weak distinctive character, because it designates a type of cheese, and that there was no likelihood of confusion between the two, under Article 8(1)(b) of the Trademark Regulation.

The Court of Justice considers in this ruling that the General Court had not applied the relevant legal test correctly. It recalled that the likelihood of confusion must be understood, for collective marks, as the risk that the public might believe that the goods or services covered by HALLOUMI, and those covered for by BBQLOUMI originate from members of the association which is the proprietor of the HALLOUMI mark (or economically linked undertakings), but that this did not rule out the case law and criteria applicable to earlier collective marks in finding whether there was such a likelihood (namely, a global assessment).

On the assessment of the likelihood of confusion, the Court found that the General Court had relied on the basis that, in the case of an earlier mark of weak distinctive character, the existence of a likelihood of confusion must be ruled out as soon as it is established that the similarity of the marks at issue, in itself, does not permit such a likelihood to be established. The Court ruled that such a basis is incorrect because the fact that the distinctive character of an earlier mark is weak does not preclude the existence of a likelihood of confusion.  Accordingly, it was necessary to examine whether the low degree of similarity of the marks at issue is offset by the higher degree of similarity, or even identity, of the goods covered by those marks.

The Court therefore set aside the judgment and referred the case back to the General Court for further examination of the existence of a likelihood of confusion.

Read the ruling here.

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