Bayern Munich, one of the most internationally recognised football clubs in Europe, was recently involved in trade mark opposition proceedings brought to enforce its famous chequered logo and prevent the registration of a trade mark applied for by Sailerbräu, a Bavarian brewery, whose own logo also included the English equivalent of the word ‘Bayern’ (Bavaria) and the same motif.
Bayern Munich considered the mark confusingly similar to its earlier German trade mark which is comprehensively protected and used, thanks to extensive merchandising and sponsorship arrangements, for a wide range of goods and services including those covered by the application, being a range of alcoholic and non-alcoholic beverages plus the provision of food, drink and accommodation. The initial opposition was dismissed, since the marks were considered distinguishable, despite the coincidence of ‘Bayern’ / ‘Bavaria’ and the chequered diamond design – elements which are weak in trade mark terms given that they denote geographic origin. It is in the public interest that geographic references remain freely available, and are not monopolised via trade mark protection, so that traders may fairly denote the origin of their goods or the place where their services are provided.
An appeal followed. The questions to be determined by the Board of Appeal were whether the logos were similar, and would use of the Sailer Bräu mark take unfair advantage of the distinctive character and repute of Bayern Munich’s. The Board of Appeal found that the marks were confusingly similar when their overall impressions were considered. Whilst ‘Bayern’ and the chequered diamond design may be known and understood within Germany, the opposed mark was an EU application and outside Germany the public would not necessarily understand those elements as having geographic significance. The marks were therefore conclusively held to be similar and moreover, use of the Sailerbräu would unfairly “freeride” on, and cause damage to, the considerable reputation of Bayern Munich’s well-known mark.
The marks at issue.