Risk of brand confusion: the case

The likelihood of confusion is a term from trade mark law that you may have already heard if you are familiar with the IP-Law world.

A trade mark proprietor may bring a number of trademark law claims not only against identical trademarks but also against similar trademarks if there is a likelihood of confusion on the part of the targeted public.

According to the ECJ, a likelihood of confusion exists where the relevant public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings. In this context, likelihood of confusion is said to depend, in particular, on the similarity of the marks, the similarity of the goods or services covered by the mark and the distinctiveness of the mark relied on, all of which factors are interdependent.

For the likelihood of confusion it may be sufficient that the target public runs the risk of mentally attributing the opposing signs to a single proprietor due to partial similarity (e.g. likelihood of confusion under the aspect of the serial sign), or to assume economic or organisational connections between the trade mark proprietors despite recognising the given differences between the signs. The Federal Court of Justice has applied the principles on the likelihood of confusion known from the law on trade marks also in the law on fair trading when assessing a deception of origin.

The case

Since 1985, Käpt’n Iglo has sold their very famous branded fish fingers in Germany. The company wanted to have a competitor banned from using a similarly maritime advertising figure by the courts. Unfortunately Käpt’n Iglo has suffered its second defeat in court in a long-running legal battle over the uniqueness of its well-known advertising figure. The Munich Higher Regional Court (OLG) dismissed the Hamburg fish finger manufacturer’s appeal against a similar advertising figure of the Cuxhaven-based competitor Appel Feinkost. The reasoning is still pending.

Iglo sees a risk of confusion for consumers, as Appel also advertises its fish products with a bearded gentleman in front of a maritime backdrop. The senate, however, saw things differently. Already in the morning hearing, presiding judge Andreas Müller made it clear that he considered the likelihood of confusion to be very low. “In our preliminary view, there is no deception as to the commercial origin.” The preliminary assessment resulted in the dismissal of the action in the afternoon.

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