Author: Inga Lukauskiene, Associated Partner, Attorney-at-Law, Patent Attorney at METIDA
The Court of Appeal of Lithuania confirmed the decision of the State Patent Bureau of the Republic of Lithuania (SPB) which upheld an opposition filed by Bravaria N. V. regarding the trademarks ‘BRAVARIA’ and ‘B BRAVARIA ALAUS DARYKLA’. Although this decision was partly dismissed by the court of first instance, the court of appeal concluded that not only a word trademark, but also a figurative trademark ‘B BRAVARIA ALAUS DARYKLA’ is confusingly similar to a trademark ‘BAVARIA HOLLAND BEER’ belonging to a Dutch company.
According to the court, the trademark ‘BRAVARIA’ belonging to a plaintiff and the defendant’s trademark’s dominant element ‘BAVARIA’ differ from each other only in one letter. The plaintiff claimed that a word ‘BRAVARIA’ that is contained in their trademark originated from Bavaria, a region in Germany. Also, according to 46,7% of surveyed users, the words ‘BRAVARIA’ and ‘BAVARIA’ give rise to similar semantic associations.
While deciding on the revocation of trademark’s ‘B BRAVARIA ALAUS DARYKLA’ registration, the court came to a conclusion that the Vilnius Regional Court dismissed SPB’s decision without any substantial grounds – the SPB concluded that the graphic elements in the plaintiff’s trademark, such as a coat of arms, a crown, lions and a letter ‘B’ are quite usual and typical symbols of the coat of arms, and are often used in trademarks. Therefore, according to the court, the regional court’s opinion that the dominant marks in the plaintiff’s trademark are graphic elements is not substantial enough. There we no evidences to support such regional court’s decision. In fact, the decision of the first instance court was contradicted with the user survey of 2013 regarding the dominant element of the trademark which was submitted by the defendant to the court of appeal. The survey shows that 52,2% of the participants find the word ‘BRAVARIA’ as the dominant element of the plaintiff’s figurative trademark ‘B BRAVARIA ALAUS DARYKLA’ and that particularly this word helps identify the trademark. In addition, other evidence in the case (including the commercial materials) shows that when referring to the services that the plaintiff’s trademark covers, i.e. restaurant, the trademark usually comes with the restaurant’s name ‘Bravaria’. This suggests that this word helps identify the services covered by the plaintiff’s trademark and must be held as its dominant element.
Due to the fact that the inn BRAVARIA marked with the plaintiff’s trademarks is presented to the consumers as a German cuisine restaurant, that the interior design was created by an architect who went to Germany to learn more about the history of the German pubs, their architecture and their image, that the menu in the restaurant consists of the German dishes and beer that has the same name, the court concluded that these trademarks’ applications were filed in bad faith.
Thus, this court’s decision should make the owners of the restaurant ‘Bravaria’ who have the license to use the questioned trademarks, as well as other trademark proprietors be more cautious. The fact that the later trademark has additional graphic elements does not necessarily mean that the trademarks are not similar if their dominant elements are not different enough.