The Federal Administrative Court recently had to decide whether the use of the sign MILLEZIMUS for wines, spirits and services of wine bars resulted in a likelihood of confusion with respect to the trademark MILLESIMA owned by France-based wine mail order merchant MILLÉSIMA S.A.
The wine merchant MILLÉSIMA S.A. owns the international registration MILLESIMA for the goods "Wines of guaranteed label of origin (AOC wines), vins de pays (local or regional wines), liqueurs, all these goods with year of vintage" in international class 33. Multigraphix Sàrl, a Swiss based provider of graphic services, registered the Swiss trademark MILLEZIMUS for, inter alia, "wines and spirits" in international class 33 and "services of wine bars" in international class 43. MILLÉSIMA S.A. initiated opposition proceedings and argued that there exists a likelihood of confusion between the marks in question.
The court dismissed MILLÉSIMA S.A.'s action based on the following arguments.
First, the court dealt with the question of the distinctive nature of the trademark MILLESIMA. MILLESIMA is an adjective of the Latin language and means "thousandth" and is, with the exception of the last letter, identical to the French term "Millésime" (vintage) that has a special meaning for the choice and distinction of wine as, due to weather conditions, one vintage may be substantially different from another. Hence, the distinctive character of the sign for wines is significantly weakened.
Secondly, regarding the likelihood of confusion, the court stated that in particular the French speaking part of the relevant public, who pronounces "z" and "s" in the same way, associates MILLEZIMUS with the word "Millésime" (vintage) and not with the opponent's trademark MILLESIMA. Further, the challenged trademark alters the term more strikingly than the opponent's trademark. Although having a weak distinctive character, the opponent's trademark MILLESIMA has a certain scope of protection. However, in the present case, the distinctiveness of the trademark MILLESIMA is very weak. Whoever reads MILLEZIMUS recognizes primarily a fanciful deviation of the French term "Millésime" (vintage) and therefore does not expect any economic ties between the trademark owners of MILLEZIMUS and MILLESIMA. Thus, there exists no likelihood of confusion between the trademarks.
The court's decision illustrates well that trademarks which differ only insignificantly from descriptive terms enjoy only a very low degree of protection.
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