Associate Partner, Patent Attorney
Orkla Latvija candies “Laime” are not considered to be similar with Kraft Foods candies “Miglė”
On 26 May, 2020 the Board of Appeal of Industrial Property examined the opposition filed in the name of the Swiss company KRAFT FOODS SCHWEIZ HOLDING GMBH against the Latvian trademark registration No. M 73 317 “1870 Laima Laime”. The contested mark was filed on behalf of Orkla Confectionery & Snacks Latvija, SIA (now Orkla Latvija, SIA) for goods in Class 30. The materials of the case show that marks at comparison are used in relation to chocolate candies (sold at weight).
well-known unregistered trademark
(reg. No. M 73 317)
The trademark attorney Gatis Meržvinskis represented Orkla Latvija in this opposition matter. The Latvian company Orkla Latvija is a part of Orkla group and it is the largest confectionary and chocolate producer in Latvia. Also history of the brand “Laima” dates back to more than 100 years and has become one of the most beloved brands in Latvia in many generations.
The opposition was based on the rights of the well-known unregistered trademark “Miglė” and the allegation, that the trademark “1870 Laima Laime” was registered in bad faith.
Given the evidence in the opposition case, the Board of Appeal rejected the opposition and came to the following conclusions:
- Only the verbal part (not the graphic part) of the figurative trademark “Miglė” can be recognized as well-known in Latvia;
- The verbal element is endowed with distinctiveness, because consumers would recall it more promptly;
- The consumer choice would be mainly influenced by the verbal parts “Laime” or “Miglė” due to the fact that graphic elements are difficult to recognize on small-sized candy;
- Decorative elements (such as stripes, margins and rays) in the marks at issue do not play a significant role due to lack of distinctiveness;
- The evidence does not sufficiently reflect visual identity of the trademark “Miglė” as the graphic features of these sweets cannot be perceived clearly;
- Even though the trademark is composed of bright red attracting consumer attention, the evidence filed by the opponent does not signify that “Miglė” is the only red-packaged candy in the market;
- Also the verbal elements of the marks “Laime” or “Miglė” are completely different and so are their graphic composition (letter stylization). Therefore, it is very unlikely that consumers would confuse these marks or perceive the contested mark as an imitation to the well-known mark “Miglė”.
The Board of Appeal acknowledged the following arguments of Orkla Latvija as reasonable:
- None of the evidence presented in the matter portray convincing conclusions on perception of the Latvian consumers (including advertisements, testimonies, surveys etc.);
- As it appears the signs “Laima” and “Laime” are conceptually very similar. The use of the similar mark “Laime” is considered to be a strategic step by Orkla in order to protect its products broader. This also has been reflected by previous trademark disputes;
- Latvian consumers perceive the brand “Laima” as very distinctive. As a matter of fact, for some consumers it is important to select the local brands or already beloved sweets.
To sum up, the Board of Appeal admitted that the trademark “Miglė” is well-known only as a verbal mark. After carrying out phonetic and conceptual analysis of the marks at dispute, the Board of Appeal concluded that there is no likelihood of confusion which excludes any chance of misleading the consumers. Also, because registration of the mark “1870 Laima Laime” is considered merely as a strategic step of Orkla, bad faith elements were not recognized.