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METCHUP- MAYOCHUP

METCHUP- MAYOCHUP

In 2007, Dennis Perry had registered the trademark METCHUP in the USA for ketchup, mayonnaise and mustard. Perry mixes these sauces in his own kitchen and sells this himself. Since 2010, he has sold 34 bottles. When Heinz launched a similar product under the name MAYOCHUP in 2016, a problem arises.

 

Dennis deemed that Heinz took off with his idea. At launch, a competition was held for a new brand-name. 95 suggestions were received, Metchup being one of the entries. At the end of the campaign, Heinz published an overview on their website with all suggested names depicted on sample bottles. Perry claims this is an infringement.

The court disagreed. Heinz sells the product under the name MAYOCHUP and not under the name METCHUP. Additionally, Heinz never used the name METCHUP in commercial context to promote its product.

But there is another aspect that plays an important role: if a trademark owner invokes a trademark that is subject to obligation of use, he must actually use it. The sale of 34 bottles in about 9 years does not, however, constitute use. For that reason, the Perry brand was cancelled on account of non-use. Registration is a good start to claim Trademark rights, but if you want to enforce them, keep in mind that in most countries one has to use a trademark normally. Otherwise you’ll end up with nothing.

The sale of 34 bottles in about 9 years does not, however, constitute use. For that reason, the Perry brand was cancelled on account of non-use. Registration is a good start to claim Trademark rights, but if you want to enforce them, keep in mind that in most countries one has to use a trademark normally. Otherwise you’ll end up with nothing.

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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?
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