Ice cream and soft drinks similar? Unleash the beast – unilever versus monster

For the new Magnum Ice-cream campaign, Unilever files the trademark RELEASE THE BEAST. The trademark is claimed for ice cream and ice lollies. Monster opposes on the basis of its word trademark UNLEASH THE BEAST, registered in 2011 for non-alcoholic beverages. The Benelux Office for Intellectual Property (BOIP) denies the opposition because the goods are not considered similar. Monster successfully appeals the decision.

According to the Court, non-alcoholic beverages are somewhat similar to ice cream, ice lollies, milkshakes and frozen yogurt. All these products are intended for human consumption and serve as refreshment. Furthermore, they are interchangeable. Consumers looking for refreshment can choose between a cold drink or an ice cream.
The products are distributed through the same channels, like snack bars, gas stations and supermarkets. The trademarks are visually, phonetically and conceptually very similar (a total of 3 words, nearly the same amount of letters, 2 of the words identical). Therefore, the trademark is refused for these goods. The decision proves the importance of a well-chosen classification of the goods and services. The right combination of generic and specific terms provides a broad protection of a trademark.

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?