Assessing the relevance of the professional and general public in EU trade mark cases in Hungary
In a new judgment in a series of trade mark-related lawsuits in Hungary between two distributors of sunbed lamps, the owner of the EU trade mark ‘Chocolate Brown’ failed to stop another distributor of sunbed tubes who used the term ‘Xtra Dark Choco Latte’. The court found that the similarity caused by the use of ‘choco’ in ‘Xtra Dark Choco Latte’ was outweighed by the distinctiveness of the phrase beginning with the letter X, which is rarely used in the Hungarian language.
The trade mark owner has been more successful in other cases. One of them proved legally significant because it gave the Metropolitan Court of Appeals the opportunity to assess for the first time to what extent the distinction between the general public and the professional public has relevance in trade mark infringement disputes. The Court found that, contrary to the defendant’s claim, the sunbed lamps are directed at the general public and not the professional one.
According to EU trade mark law, the use of any sign where there exists a likelihood of confusion on the part of the public because of the sign’s similarity to an EU trade mark constitutes an infringement of the original trade mark. The first step in assessing whether there had been a trade mark infringement is to define the relevant customer circles. Depending on the goods and services that have been found identical or similar, the ‘relevant public’ can either be the general public or the professional public. The defendant in the Hungarian court dispute tried to use this distinction between circles of customers in its defence.
The defendant distributed sunbed tubes under the phrase ‘Choco Love’ and was sued by the owner of the EU trade mark ‘Chocolate Brown’ for trade mark infringement. To put this into context, it should be noted that the average consumer in Hungary considered the claimant's sunbed tubes an innovation that had a somewhat distinct reputation from other types of sunbed tubes. This reputation was mainly due to the product’s early marketing as having a less harmful effect on health than other UV lamps. Interestingly, this marketing was later pronounced a misleading marketing activity by the Hungarian Competition Authority, and the claimant was fined. This, however, did not prevent the claimant from enforcing its trade mark rights against its competitor.
In the court case, the claimant argued that the use of ‘Choco Love’ infringes its ‘Chocolate Brown’ trade mark because of the overall impression these phrases create on potential customers. In its response, the defendant argued that the customers of both companies are primarily small and medium enterprises that operate sunbed salons. The defendant argued that these companies know the market well and thus will not be easily confused by the use of the word ‘chocolate’ or words similar to it.
If the goods or services in question target both the average consumer and professionals, the likelihood of confusion will be assessed against the perception on the part of the public displaying the lower degree of attentiveness, i.e. the public at large, as it will more likely be confused.
Accordingly, the Court established that in this case, a distinction between the general public and the professional public was not relevant because the general public could also purchase sunbed lamps for home use. In addition, the users of sunbeds in tanning salons are to be regarded as indirect consumers that may choose one salon rather than the other based on the reputation of the sunbed tubes deployed in them. The Court also cited the fact that the claimant had two registered trade marks under similar names which include the word CHOCOLATE. Therefore even professional consumers might think that the defendant’s mark, ‘Choco Love’ was just a new trade mark of the claimant. This potential confusion of the marks proved sufficient for the conclusion of infringement of the claimant's trade mark.
The Hungarian chocolate saga seems poised to yield other legally significant decisions in the future.
Zoltán Novák
