On 12 December 2017, the Court of Appeal of Brussels (the “Court of Appeal”) annulled a judgment of 13 January 2016 of the President of the Dutch-language Brussels Commercial Court (the “President”) in which the President had found Aldi’s Buval sign to infringe the Jupiler trade marks of InBev Belgium NV (“InBev”). The Court of Appeal held that there is no likelihood of confusion between both signs (See VBB on Belgian Business Law, Volume 2016, No 1, p. 15, available at www.vbb.com).
In August 2015, the supermarket chain Aldi had started selling its private-label Buval beer, which is brewed and packed by brewery “Brouwerij Martens” (“Martens”). In September 2015, InBev brought a cease-and-desist action before the President for infringement of its Jupiler trade marks based on Article 2.20.1.b and/or Article 2.20.1.c of the Benelux Convention on Intellectual Property (Trade Marks and Designs) of 25 February 2005 (the “BCIP”).
InBev’s trade marks:
Signs used by Aldi:
Unlike the President, the Court of Appeal found no trade mark violation on any of the grounds relied on by InBev. First, the Court of Appeal examined whether Aldi infringed Article 2.20.1.b BCIP. The Court of Appeal held: (i) that the relevant public consists of the average consumer of pilsner beer in the Benelux who is expected to be reasonably well-informed and reasonably observant and circumspect and that a normal level of attention can be expected from the relevant public; (ii) that both products are sold in distinct sales channels and that Buval beer is only marketed in Aldi supermarkets while Jupiler beer is not sold in Aldi supermarkets; (iii) that the relevant public is confronted with a multitude of pilsner beers on the Benelux market and that (partly) identical graphical elements are used or a combination thereof; and (iv) that there is no visual, aural and conceptual similarity between the Buval sign and the Jupiler trade mark since the dominant elements of both signs are the words “Buval” and “Jupiler” respectively. With these factors in mind, the Court of Appeal concluded that there is no likelihood of confusion and that Aldi therefore did not infringe Article 2.20.1.b BCIP.
Secondly, the Court of Appeal also rejected InBev’s infringement claim under Article 2.20.1.c BCIP which protects reputed trade marks against the use of signs that create a simple association in the mind of the relevant public and that takes unfair advantage of or is detrimental to the distinctive character or the reputation of the trade mark. According to the Court of Appeal, InBev did not establish that the relevant public will associate the Buval sign with the trade marks of InBev based on the considerations mentioned in the previous paragraph.
Finally, the Court of Appeal gave short shrift to InBev’s claim that the Buval beer formed parasitic competition for the Jupiler beer and gave rise to misleading and confusing publicity.
