Cyprus loses again before the CFI in defense of its own Halloumi trademark against the Union figurative mark BBQLOUMI: consumers understand ‘Halloumi’ as a term for this type of cheese, but not as a reference to a certified Cyprus Halloumi cheese.
For years Cyprus has been fighting against similar trademark applications as Halloumi, but today in vain: Cyprus loses again in trademark dispute HALLOUMI vs. BBQLOUMI.
Today’s judgment of the CFI focuses on the famous Halloumi cheese from Cyprus and a long-standing trademark dispute about it, which started rolling in 2014. Intervener M. J. Dairies EOOD (Bulgaria) had applied for the EU figurative mark BBQLOUMI in July 2014, inter alia also for cheese in Nice Class 29. Plaintiff Halloumi Foundation claimed likelihood of confusion with its own earlier EU collective word mark HALLOUMI against this trademark application for cheese.
TM dispute HALLOUMI vs. BBQLOUMI already in court several times
In these proceedings, the Foundation from Cyprus lost in 2018 both before the Board of Appeal and the European Court of First Instance (CFI) (T:2018:594). However, the applicant from Cyprus was able to successfully challenge this judgment before the ECJ (European Court of Justice) in March 2020. For the CFI had started from the premise that if the earlier mark had a weak distinctive character, the existence of a likelihood of confusion could be excluded if the similarity of the marks did not lead to a likelihood of confusion.
However, the ECJ found fault with this, as there may well be a likelihood of confusion even in the case of weak distinctiveness in the examination of the overall circumstances. In addition, in 2018 the CFI had made findings on the degree of distinctiveness of both the earlier halloumi mark and the conflicting marks – but only with regard to the goods claimed, not with regard to consumers.
The ECJ therefore set aside the contested 2018 first-instance judgment and referred the entire case back to the CFI (EU:C:2020:170), where a new examination of the existence of a likelihood of confusion was to be carried out, now also taking consumers into account.
This has since been done, and today the CFI ruled: once again, the CFI dismisses the Foundation’s claim in Cyprus.
Cyprus loses again in Halloumi trademark dispute
The word halloumi is generally perceived as a cheese specialty, by many also as a cheese specialty from Cyprus. But the term ‘halloumi’ is used as a generic term for this type of cheese, but is not understood as a reference to a – as union collective word mark – certified cheese, the CFI explained today. But that – as the ECJ had also ruled – is the task of a collective mark. So even if one assumes, the ECJ had stated in its reasoning in March 2020, that the Union collective mark HALLOUMI implicitly refers to the origin from Cyprus, it must nevertheless fulfill its main function, and that is to distinguish the goods with respect to members of the association and the goods of other companies.
Therefore, the CFI today again found a weak distinctiveness of the union collective mark ‘Halloumi’.
Furthermore, the CFI today referred to the fact that the contested mark BBQLOUMI is registered as a figurative mark, whereas Halloumi is registered as a word mark. However, the figurative element in the contested mark shows a barbecue rather than a cheese made in a Mediterranean setting, and it does not explicitly mention halloumi cheese.
The court also submits that there is little similarity between the word elements. The word element “loumi” is the same in both marks, but the beginning is particularly weighted in word marks, the CFI emphasized. And the beginning is clearly different in the two marks.
No likelihood of confusion for consumers
Even taking consumers into account, there was no likelihood of confusion, the CFI ruled. Because even if consumers focus their attention on the word element “loumi,” which is identical in both marks, and even perceive the figurative element as a possible reference to grilled halloumi cheese, they will not make a connection between the two marks, the court found. This is because, overall, the conflicting marks have only a low degree of similarity and the earlier mark ‘halloumi’ is only associated with the type of cheese, namely ‘halloumi cheese’, but not with its origin.
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