What has happened?

• The EUIPO Board of Appeal has overturned a Cancellation Division decision and found that there is a likelihood of confusion between an earlier registration for the mark МАЙСКИЙ ЧАЙ (meaning "may tea" in Cyrillic) and a later registration for the image of a drinks bottle with a label bearing the words MAY TEA, both registered for identical goods (and depicted below).

• The case is a reminder to consider foreign language versions of marks in clearance searches. While the visual and aural similarities between such marks can be low, the conceptual similarities might be sufficient for a finding of a likelihood of confusion. 

• It is also a reminder that, at EU-level, a likelihood of confusion need only exist in part of the EU for a mark to be refused registration or invalidated. Here, there was a likelihood of confusion from the viewpoint of the average Latvian public with a good knowledge of Russian. 

Want to know more?

Obschestvo s ogranichennoy otvetstvennostyu applied to invalidate an EUTM registration owned by Schweppes International for the image of a drinks bottle with a label bearing the words MAY TEA. The mark was registered in Classes 30 and 32 for various products including flavoured tea-based and non-alcoholic tea flavoured beverages. 

The action was based on an earlier International registration covering the Czech Republic, Germany, France, Latvia, Poland and Slovakia for the mark МАЙСКИЙ ЧАЙ covering tea in Class 30. Obschestvo s ogranichennoy otvetstvennostyu argued that there was a likelihood of confusion between the marks under Article 8(1)(b) of the EUTM Regulation.

Earlier IR registration	Later EUTM registration
(Designating the Czech Republic, Germany, France, Latvia, Poland and Slovakia)
МАЙСКИЙ ЧАЙ
Class 30 (tea)	Classes 30 & 32 (including flavoured tea-based and non-alcoholic tea flavoured beverages)

The Board overturned the first instance decision and invalidated Schweppes's registration. The following interesting points arise from the decision.

• A risk of confusion need exist in only part of the EU (provided it is not a negligible part of that public). In this case, the Board made its assessment from the viewpoint of the average Latvian public with a good knowledge of Russian.

• When considering a mark that does not contain Latin characters (eg one that uses the Cyrillic or Greek alphabet), the direct translation is most relevant. The Board held that the average consumer would associate the earlier mark with ‘MAY TEA’. The earlier mark would be seen as a fairly literal translation of the English term because 'may' and 'tea' are elementary English words and the close equivalent of 'may' in Latvian is 'maijā'. 

• When assessing a figurative sign, verbal components will usually have a stronger impact on the consumer than figurative components. Here, the Board held that the label background of the later mark plays a role in enhancing the importance of the verbal elements and the figurative devices are purely decorative/directly linked to the characteristics of the goods.

• A finding of conceptual similarity can outweigh a visual and aural dissimilarity (or low level of similarity). Despite the visual dissimilarity and low degree of aural similarity between the marks, the conceptual similarity of 'MAY TEA' was sufficient for a finding of a likelihood of confusion given the identical goods. 

• Near identical marks (save for visual and phonetic differences due mainly to the different languages) plus identical goods often results in consumers believing that the goods sold under the later mark are marketed by the same or economically related undertakings but adapted to a wider territory. The Board held that it was highly conceivable that the average consumer would perceive the mark under attack as a variation of the earlier mark, adapted for all consumers throughout the EU.