JUNGBORN vs. BORN – Trademark Dispute for Gourmet Foods

The European General Court (EGC) decided that “JUNGBORN” cannot be registered because there is likelihood of confusion to the older German trademark “BORN” (Case T-401/12, July 11, 2014). Introduction Likelihood of confusion is assessed on the basis of if there is a high risk that the targeted consumers must assume that the relevant goods and services derive from the same or connected companies. Therefore, various factors need to be taken into account. On the one hand side, the specific goods and services of the applied for mark and the earlier sign need to be evaluated. On the other hand, the script, sound and meaning of the two trademarks have to be compared. Background of the Case and Subject Matter In the present case, the Robert Klingel OHG applied for the Community Trademark “JUNGBORN” for different kinds of gourmet food products. Subsequently, Develey Holding GmbH & Co initiated an opposition because of the similarity to their German Trademark “BORN”. They also sell gourmet food products under this trademark name. Therefore, similarities between the specific goods and services are indisputable. Regarding the similarities of the trademarks themselves, the Office for Harmonization in the Internal Market (OHIM) decided that there is likelihood of confusion. One reason for this decision was that OHIM sees asimilarity between the signs, if one trademark contains the other one and just the beginning varies. Robert Klingel OHG is of the opinion that there is no likelihood of confusion, especially because the focus of their trademark is “JUNG”. This follows from the fact, that the consumer pays more attention beginning of a trademark. Therefore, a similarity between the trademarks is not given from their point of view. Decision The EGC compared the signs and took note of the fact that both designations share the component “BORN”. Even though the word “JUNG” is at the beginning of “JUNGBORN”, the court believes that the average consumer will not perceive the mark as a whole, but, still split it into two parts, namely “JUNG” and “BORN”. In this specific case, the EGC is of the opinion that the component “BORN” stands out and can claim individual character. Therefore the court decided that a likelihood of confusion exists and the application “JUNGBORN” is confusingly similar to the prior trademark “BORN” and therefore may not be registered.