National costume distinctive as folklore though not as trade mark for local sweetsdinsdag, 24 februari 2015
In opposition proceedings before the Benelux Office for Intellectual Property (BOIP), Inter-Noba B.V. (Inter-Noba) opposes the registration of JB Diesch B.V.’s (JB Diesch) Benelux trade mark in class 30, to be used particularly for well-known local sweets from the province of Zeeland in the Netherlands called ‘boterbabbelaars’ (tasting somewhere between butterscotch and toffee). These sweets are typically sold in packaging bearing pictures of Zeelandic folklore such as girls wearing national costume. Inter-Noba B.V. is the holder of a Benelux trade mark registered in class 30 and used for botterbabbelaars. The marks in issue are pictured below.
The BOIP had to determine whether there exists a risk of confusion on the part of the average consumer between both marks. The BOIP points out the differences between the two trade marks, such as a diamond shaped background frame as opposed to a round one, the flowers pictured in the blue, circular frame of the opposed mark, the red emblem and the rectangular banner of blue crosses and white diamonds not included in Inter-Noba’s mark and the differences between the word elements.
Despite the (notable) differences, the BOIP holds there exists no risk of confusion between the two marks. Both the word and figurative elements of the marks are descriptive for the products for which they are used. The average consumer is aware that Zeelandic boterbabbelaars are typically marketed using pictures of girls in Zeelandic national costume. While Zeelandic national costume, which is held by the BIOP to be very well-known, can be distinctive as folklore, it cannot distinguish boterbabbelaars as the national costume clearly indicates that these goods are originating from Zeeland. Despite the average consumer knowing that Zeelandic national costume is an indication of origin of the products on which it is pictured, the consumer shall not consider these products to originate from the same undertakings. In case of trade marks constituting of both word and figurative elements, the descriptive elements of the marks shall not be considered by the average consumer to be the distinctive parts of the trade marks. Knowing that Zeelandic boterbabbelaars originate from Zeeland, the consumer shall pay more attention to the non-descriptive elements of the trade mark, such as the geometric shapes, the red emblem and the particular differing details of the national costume pictured in both marks. Hence, despite both trade marks bearing similar descriptive elements, the marks contain a sufficient number of differences for the average consumer to be able to distinguish between both marks. The BOIP therefore rejects the opposition.