EU trade mark dispute: CHIPSY KINGS v Curry King

On 11 December, the CGEU ruled in case T-157/24 concerning the EU word mark No. 018416564, CHIPSY KINGS, owned by Mr András Lénárd, a businessman residing in Romania.

 

Mr Lénárd applied to the EUIPO to register the EU word mark in respect of goods and services in Classes 29, 30 and 35 of the Nice Classification, such as French fries, potato fritters, wholemeal crisps, cereal-based crisps and retail food services. However, a German company, Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH, opposed the registration on the basis of its earlier international word mark No. 1285017, Curry King, which covers goods in Classes 29 and 30, such as meat products, vegetarian products, potato products and prepared dishes consisting mainly of cereals and/or rice and/or sauces and/or spices.

 

Both the Opposition Division and the Board of Appeal rejected the opposition on the ground that there was no likelihood of confusion under Article 8(1)(b) EUTMR. The German company appealed against this decision to the General Court of the European Union, which had to determine whether there was a likelihood of confusion between the marks at issue.

 

The Court upheld the decision of the Board of Appeal. As regards the goods in Class 29, the 'potato crisps' and other snacks covered by the mark applied for were considered to be identical to the 'prepared dishes mainly consisting of potatoes' of the earlier mark. In Class 30, the 'potato flour snacks' were considered to be moderately similar to the 'prepared dishes' of the earlier mark, given the common ingredients, possible producers and distribution channels, even though their purpose was different (snacks versus main meals). Furthermore, the retail services in Class 35 were found to have some similarity with the goods in Classes 29 and 30.

 

Even though the products were indeed similar, the Court held that there was not risk of confusion between the two marks. As regards the conceptual comparison, the Board of Appeal considered that the words 'curry' and 'king' in the earlier mark had a low degree of distinctiveness, since 'king' was laudatory and 'curry' descriptive. In contrast, the term 'chipsy' could be perceived in different ways: as a descriptive term for 'chips' with a low degree of distinctiveness, or as an invented word with a higher degree of distinctiveness, surpassing that of 'king'. In the visual comparison, although both marks share the element 'king', the presence of the 's' in 'kings' and the replacement of 'curry' by 'chipsy' contribute to a clear visual difference.  Moreover, at the phonetic level, although both marks share the pronunciation of 'king', the differences in the pronunciation of 'chipsy' and 'curry' create a significant contrast which prevents the common element 'king' from being decisive in the overall phonetic comparison.  Therefore, the General Court dismissed the German company's appeal.