24 april 2019

Do you know the difference between a pig and a tapir?

Peppa Pig began as an animation series. By now, it has become very popular among young children. Merchandising can generate lots of money and that always attracts people who are looking for free profits. Opposition can be filed to a newly submitted European mark if the holder of the older mark believes that there is likelihood of confusion. Therefore, there must be evidence of identical or corresponding marks and identical or similar goods. Even after a European mark is registered, one can still act by filing an application for nullity based on the ‘likelihood of confusion’.

In 2016, the holders of the well-known logo PEPPA PIG filed an application for nullity against a European trademark registration for the TOBBIA logo. You can see the marks in question below.

Because both marks were filed for the same goods, namely clothing, the issue of likelihood of confusion had to be directed to the logos.

In 2016, the application for nullity was rejected, but an appeal was granted in 2017. The Board of Appeal of the European Trademarks Office acknowledged that there was a likelihood of confusion and therefore the European registration of the TOBBIA logo must be cancelled. Decisions of the European Trademarks Office can be appealed at The General Court. The holders of the TOBBIA logo filed an appeal with the General Court and recently the General Court made a decision in this case.

The General Court examined the visual, phonetic and conceptual similarity. The holders of the TOBBIA mark claimed that wrongly the Board of Appeal had not examined the marks as a whole, but looked only at the graphic illustrations. In this respect, the General Court argued that a global assessment of the likelihood of confusion must be based on the general impression of the marks. In this global assessment, the perception of the marks by the average consumer plays a decisive role. A consumer observes a mark as a whole without taking details into account.

Subsequently, the General Court states that the visual similarity is based on an anthropomorphic animal with a round head and a cylindrical nose. In both cases the shape of the head and the nose are nearly identical. That also applies to the ears, cheeks, eyes, and mouth. There are also differences, including in the clothing, the colours, and the word elements. The General Court concluded that there is similarity because the average consumer normally observes a mark as a whole.

The argument that – contrary to PEPPA PIG – the animal in the TOBBIA brand is not a pig but a tapir was disregarded. Even if the public would actually believe that this concerns a tapir (or in both cases a tapir), there is still a corresponding image.

A certain amount of similarity was also accepted with regard to the phonetic aspect. Both in PEPPA and in TOBBIA there is evidence of the repetition of a strong consonant, namely PP and BB. Obviously, there are also very clear differences. Nevertheless, the fact that a certain correlation exists between the element ‘PEPPA’ and ‘TOBBIA’ was sufficient to accept similarity.

Finally, the conceptual correspondence was also examined. That was quite clear: in both cases it concerned an illustration of a pig. The General Court was not prepared to accept that the purchasing public would see the illustration of the TOBBIA mark as a tapir.

Based on the above, it was established that the Board of Appeal rightfully had decided that the characters are similar. With this, the General Court confirmed the verdict of the Board of Appeal and the TOBBIA logo will not be registered. Although the argument in the phonetic area might be perceived as somewhat contrived, the decision is actually completely understandable. After all, it is obvious that the holders of the TOBBIA brand simply wanted to benefit from the extremely well-known PEPPA PIG mark.