The EUIPO has upheld an opposition brought by the makers of Ardbeg whisky, that delightfully peaty Islay dram, against an application by a Liechtenstein-based entrepreneur to register 'ArlbergWhisky' as an EU trade mark for alcoholic beverages.
I am not certain I agree that consumers would in reality perceive ARLBERG as a sub-brand of ARDBEG, as is suggested in the EUIPO's decision, but the former mark is certainly evocative of the latter and taking into account imperfect recollection it is easily foreseeable that consumers who are not whisky connoisseurs might mistakenly buy a bottle of ARLBERG whisky, as a gift for example, believing it to be the reputed ARDBEG.
It is also interesting to note that the EUIPO neatly sidestepped any potential argument that the marks might be able to be distinguished on conceptual grounds, with Ardbeg and Arlberg being two difference place names in Scotland and Austria respectively, by focusing on French, Italian and Spanish speaking average consumers and holding that both words would be meaningless in the minds of this section of the relevant EU public.
Another successful decision for the Scotch whisky industry who are individually and collectively renowned for their assertive and boundary-testing brand protection efforts.
The company argued that the name ‘Arlberg’ was “too similar” to that of ‘Ardberg’, and that the “likelihood of confusion exists” in that the public might mistake the two brands for one another. The legal team representing Ardbeg argued that the resulting confusion might damage the reputation of the whisky brand. In ruling given on 24 February, the EU Intellectual Property Office stated that the names of the two products were “aurally similar to a high degree” and visually similar “to a degree that is above average”. It said that consumer confusion was likely and added that a customer, whether a professional or not, could mistake Arlberg as “as a sub-brand” of Ardbeg.