Background

Chiquita Brands LLC filed for the EU trade mark CHIQUITA QUEEN covering fresh fruits in class 31. The company Jara 2000 SL opposed the mark on the basis of its figurative RED QUEEN mark which covered identical goods (the “earlier mark”, shown below):

EUIPO decisions

After being able to show genuine use of the earlier mark in relation to fresh fruits, Jara 2000 SL’s initial opposition was successful.

Chiquita Brands LLC appealed the first instance decision, but this was rejected by the Board of Appeal in its entirety. Considering that both marks covered identical goods, that the marks shared an average level of visual, phonetic and conceptual similarity, and that the relevant public would pay at most only an average amount of attention to the branding when purchasing these goods, the Board of Appeal deemed that registration of the earlier mark would create a likelihood of confusion on the part of the public.

Chiquita Brands LLC then contested this decision at the General Court, requesting it be annulled and costs awarded in its favour.

Reputation and distinctiveness

In its decision, the Board of Appeal had found the word element QUEEN to be the distinctive element of each mark. However, disagreeing with this, the General Court viewed the word QUEEN as having laudatory connotations, indicating the quality of the goods provided under the marks. As this is part of the basic English language it would be understood even by the general Spanish public, and therefore does not play a significantly distinctive role within the earlier mark.

Additionally, the General Court found the CHIQUITA term enjoys a reputation in Spain for fresh fruits. Interestingly this finding was unsubstantiated. This led to the conclusion that CHIQUITA had greater distinctiveness than QUEEN.

Similarity

When addressing the issue of visual similarity, the General Court highlighted the differences in the figurative elements incorporated in the earlier mark as being an appreciable difference between the marks. Furthermore, considering the finding of CHIQUITA as being the more distinctive feature of Chiquita Brands LLC’s mark, this term being significantly longer than the RED element of the earlier mark, led the General Court to find only a weak level of visual similarity.

Again considering that the QUEEN element of both marks plays a more minor role, greater emphasis was placed on the phonetic nature of the CHIQUITA and RED elements, which, given the clear differences between their pronunciation, led to a lowering of the phonetic similarities from average to low.

Finally, in carrying out a conceptual review of the marks, the General Court found the earlier mark to mean a red-coloured queen, while the term CHIQUITA refers to a little girl in Spanish. Given the low distinctiveness of the word QUEEN, and more dominant element CHIQUITA, the Board of Appeal had erred in finding an average degree of conceptual similarity. This was deemed to be, at most, low.

Likelihood of confusion

While agreeing that the relevant public paid an average level of attention to the goods at issue, considering the lesser role played by the term QUEEN and the low levels of similarities between the two marks, the General Court found there was no likelihood of confusion. Consequently, the decision was annulled and the EUIPO ordered to bear costs.

This decision is a good reminder of how difficult it can be to assess similarity, and how many different ways there are of looking at everyday words. The Board of Appeal and General Court took an entirely different approach to the assessment of both the word QUEEN and the word CHIQUITA.

In short

The General Court found that the reputation of CHIQUITA in Spain must be taken into account in the comparison of the marks. The judges distinguished between (1) distinctiveness as a whole, which is relevant for the likelihood of confusion assessment only, and (2) distinctiveness of parts, which is relevant for the assessment of the similarity of the signs. This is arguably a subtle departure from common practice, and it is a shame that further explanation was not provided. Time will tell whether the EUIPO will follow this reasoning in the future.