2015/11/4 - 23 Cdo 7/2013 (summary)

Judgement of the Supreme Court dated 4 November 2015, file number 23 Cdo 7/2013
(trademark, unfair competition)

The case dealt with a claim of the owner of the APETITO trademark vs. the respondent, owner of the DELICATO trademark, selling similar products with similar text and visual design. The court of first instance decided that the respondent had infringed the trademark, which resulted in likelihood of confusion. Subsequently, the appellate court decided that the respondent hadn’t infringed the trademark, because the design of the respondent’s packages had been registered as combined trademarks, but from the point of view of unfair competition, the likelihood of confusion occurred in this case. Either party lodged appellate review due to erroneous determination of law in the case; namely, the plaintiff argued that the respondent benefited from the plaintiff’s good standing.

Regarding the appellate review lodged by the plaintiff, the Supreme Court stated that the appellate court should have investigated the issue of the trademark legal protection. Considering judicial decisions of the Court of Justice (e.g. the judgement dated 9 November 2003, in the case C-292/00, Davidoff, and the judgement dated 23 October 2003, in the case C-408/01, Adidas) it stated that if there existed a trademark legal protection relating to other goods and services, all the more so it should have referred to such products and services that were identical or similar to those registered within the trademark, and the danger of the trademark infringement was more intense. As concerns the alleged claim raised by the plaintiff, the Supreme Court evaluated visual similarities and differences of the contested packages and the plaintiff’s packages and stated that as a whole the sued packages didn’t create the likelihood of confusion, and that’s why it was not deceptive, false or sponging behaviour in violation of fair competition. The Supreme Court partially rejected the plaintiff’s appellate review, and dismissed in the rest.