Cyprus loses Grilloumi Burger battle 2-1

The General Court of the EU (CJEU) has rejected two appeals filed by Cyprus against the European Union Intellectual Property Office (EUIPO) regarding the registration of the trade mark Grilloumi Burger by a Swedish company, ruling that similarities with the halloumi trademark did not cause confusion.

However, in a separate action brought by Cyprus against the EUIPO in relation to the same issue, the CJEU ruled that confusion as to the origin of the product cannot be ruled out when it is used in food and drink services, coffeeshops and restaurants.

The CJEU said all three cases focus on an application for registration of an EU trade mark filed at the EUIPO by the Swedish company Fontana Food AB on October 25, 2016 concerning the name Grilloumi Burger.

The application covered goods in Class 29 (such as eggs, canned, frozen, dried and cooked, preserved fruit and vegetables, jelly, jams, preserves, compotes) and 30 (such as coffee, tea, cocoa, rice), as well as for services in Class 43 (under the relevant Nice Agreement on international classification of goods).

Cyprus had requested a suspension of registration for all three classes on February 2, 2017. Certification marks for halloumi were registered in 1992 for fresh and ripe halloumi, and are different from the Protected Designation of Origin for halloumi/hellim which was approved this year.

EUIPO had rejected Cyprus’ objections in 2018, both in relation to the name of the products for classes 29 and 30 as well as in relation to their use in food and drink services for class 42.

In July 2018 Cyprus appealed against the decisions. The appeals were rejected on June 19, 2019 and May 29, 2019 respectively.

EUIPO’s reasoning was, in the first case that there is no likelihood of confusion between the opposing marks and that the earlier marks have not acquired an enhanced distinctive character and in the second that “there is no likelihood of confusion between the opposing marks as they cover different goods and services as well as that if the services covered by the Grilloumi sign could be considered similar to food products due to a complementary relationship, the existence of such a relationship was not proven with regard to the cheeses”.

Cyprus appealed against EUIPO to the EU General Court in August 2019 in both cases, and the court’s decisions were announced Wednesday.

The General Court found that there was no likelihood of confusion, since the goods concerned are different from those covered by the marks for halloumi. The similarity between the two names arises to a small extent, however “the public’s attention is more attracted by the important element `grilloumi`, which has a certain degree of originality, which is low, but is reinforced by the presence of the word `burger` which significantly differentiates the contested mark from the earlier marks which do not include it”.

On the same grounds, the court also dismissed a separate appeal which had been brought by the Foundation for the Protection of Traditional Cyprus Cheese named Halloumi (established by the Republic of Cyprus in 2013).

However, when it came to the presentation of grilloumi burgers in catering establishments, the court took a different view and annulled the decision of the EUIPO to reject the appeal lodged by Cyprus.

“EUIPO wrongly considered that the above goods and services were not similar and that there was no likelihood of confusion between the opposing signs,” the court said.

“Cheeses can be offered to the clientele of many restaurants either as a component of meals or as such in restaurants whose activity is not limited to the preparation and serving of cooked food, but also consists of the sale of food for consumption outside the point of sale. Such products are therefore directly linked to restaurant services,” the court added.

Although there is little similarity between the catering service and the products, this “does not preclude a priori that the public concerned may consider that the products and services in question have the same commercial origin” according to the CJEU.