2019年3月1日

UKIPO considers e-cigarettes opposition

BRAIN FREEZE is not to be confused with other kinds of FREEZE


Applicant

Opponent

Redemption Vape Limited

Starbuzz Tobacco Inc

BRAIN FREEZE

ALASKAN FREEZE

MIGHTY FREEZE

GRAPE FREEZE

WATERMELON FREEZE

Class 34

34: Food grade flavourings used in electronic cigarettes; Food grade flavourings used in manufacturing of e juice.

Classes 4, 5 and 34

34: Tobacco; tobacco substitute; smokers' articles, in particular hookahs and e-hookahs and accessories thereof; electronic cigarettes; electronic vaporizing smoking device; e-liquid for use in electronic smoking devices and electronic cigarettes, namely, refill liquid for electronic smoking devices and electronic cigarettes; smoking pipes; steam stones, in particular steam stones for water pipes; mineral carrier substances for flavourings, for use in water pipes; inhalable aerosols and carrier substances therefor, for use in water pipes; substances for inhalation using water pipes, in particular aromatic substances; all the aforesaid goods not for medical purposes.

UK

EU

Filed on 3 October 2017

Earliest filed on 15 October 2014

Redemption Vape Limited (the "Applicant") filed a UK trade mark application for BRAIN FREEZE in class 34 (the "Application"), which was opposed by Starbuzz Tobacco Inc (the "Opponent") based on their earlier registrations for ALASKAN FREEZE, MIGHTY FREEZE, GRAPE FREEZE and WATERMELON FREEZE in classes 3, 5 and 34 (the "Earlier Rights").

Comparison of the goods

Only class 34 goods of the Earlier Rights were taken into account. The Opposition Division considered that flavourings used in the cartridges (as included in the Application) are an integral part of the vaping experience and are indispensable to e liquids (included in the Earlier Rights) and are therefore complementary.

Both products would target the same consumer who would purchase them at the same retail outlet and would expect that such goods are manufactured and produced by the same undertaking. The goods were considered to have a medium degree of similarity. However, the Applicant's goods had a low level of similarity with "electronic cigarettes" as they differ in nature but are still considered complementary.

Average consumer

The Opponent submitted that the average consumer for e cigarettes and e liquids would be the same as the goods are of relatively low value with consumers not displaying the same brand loyalty as those that purchase traditional tobacco cigarettes. The Opposition Division agreed and concluded that the consumer would pay an average degree of attention when purchasing these types of goods.

Comparison of the marks

Neither word is more dominant in the application for BRAIN FREEZE as they the words would be read together as a phrase rather than two separate words. The same can be applied to the Opponent's Earlier Rights, as they all consist of well-known English words.

  • Visually – all the marks contain the same word, FREEZE, with differing first words. As a general rule of thumb beginnings of trade marks have more visual and aural impact than their endings. The marks were held to be have a low to medium degree of similarity.
  • Aurally – similar to the above assessment, the marks were held to have a low to medium degree of similarity given their different first words.
  • Conceptually – BRAIN FREEZE is a well-known English phrase to describe an intense headache after eating or drinking something very cold, whereas some of the Earlier Marks, whilst referring to be cold (ie Alaskan cold, mighty cold) do not invoke the same concept, but were held to have a medium level of similarity. Additionally, GRAPE and MELON would be seen as mere flavours and therefore have just a low level of similarity.

Distinctiveness of Earlier Rights

The Opponent did not submit any evidence of how the marks were being used and the Opposition Division concluded they had an average level of distinctiveness.

Likelihood of confusion

It was held that BRAIN FREEZE has such a strong conceptual meaning that it counteracts the visual and aural similarities that were found with the Earlier Rights. Therefore, there would be no likelihood of confusion and the opposition was unsuccessful.

Case Ref: O/037/19

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