What is couscous like? Lots of things, says the General Court!.

In BRF Singapore Foods Pte Ltd v European Union Intellectual Property Office (EUIPO) (Case T-309/19), the General Court has backed the interpretation of the Fourth Board of Appeal of the EUIPO in concluding that “couscous (semolina)” was similar to a wide range of broad terms in Classes 29 and 30, even where couscous was specifically excluded, and also similar to food retail services and related information, advice and consultancy in Class 35.

The case involved the marks SADIA and SAIDA, which were held to be highly similar, so the debate turned on the level of similarity of the goods and services.

Class 29 goods

The Board of Appeal had held that the opponent’s goods (defined for the opposition as “couscous (semolina)”) were similar to “prepared meals,snacks; ready meals primarily with meat, 􀂦sh, seafood or vegetables” in Class 29 as having the same nature and purpose, being foodstuffs for human consumption which are already prepared or can be quickly prepared.

The court rejected the applicant’s argument that couscous was a simple ingredient and therefore not similar to prepared meals, snacks and ready meals. On this broad reasoning, other foods requiring brief preparation and which are used as ingredients could also potentially be considered to be similar to prepared meals, snacks and ready meals. This conflation of prepared meals with foodstuffs requiring brief preparation is rather novel and may have further application.

Class 30 goods

In terms of Class 30, the General Court held that “couscous” is similar to “pastry; pastry dishes excluding couscous” as those pastry products could have similar staple foods such as rice, quinoa or pasta as their main ingredient. This rejected the EUIPO view that these terms referred to sweet baked foodstuffs and, therefore, had sufficient differences to be considered dissimilar to couscous. Savoury snacks were also held to be similar, as were prepared meals, pasta dishes, convenience food and canned pasta, all of which specifically excluded couscous. The General Court extrapolated from the presence of these prepared meals in Class 30 that their main ingredients are of plant origin, which tends to go against the principle that the Nice Classification system is for purely administrative purposes only. “Baked foodstuffs” were held to be similar to couscous, as those baked foodstuffs may consist mainly of couscous. “Rice” was similar as it has the same nature, method of use especially cooking method, and the products are found close to each other in the same sections of supermarkets. Couscous was also held to be similar to“􀂧our” despite the different levels of preparation required.

Class 35 services

As regards food retail services in Class 35, these were held to be similar to “couscous”, as this is a type of foodstuff and therefore complementary to food retail services. Couscous was also held to be similar to “information, advice and consultancy in relation to food retail services” (contrary to the views of the EUIPO), as these services are inherent to food retail services and despite the fact that the relevant public is different (the general public for couscous and retail companies for the services) and that these services are usually provided by specialist companies.

The level of similarity accorded to each of these terms varied, but the close similarity of the marks resulted in the opposition being upheld for all of these goods and services.

Comment

The breadth of protection afforded by the General Court to a single foodstuff, couscous, is rather surprising. The General Court even sided with the Board of Appeal on some of these terms where the EUIPO, represented separately, considered that the goods and services were in fact not similar.

This article first appeared on WTR Daily, part of World Trademark Review, in December 2020. For further information, please go to www.worldtrademarkreview.com.

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