PepsiCo Wins Bid to Block '3D' EU Trademark Registration

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By Peter Leung

Sept. 13 — PepsiCo Inc. convinced the European Union General Court to block a trademark registration for a logo made up of the characters “3D” because there is a likelihood of confusion with PepsiCo's previous registrations ( Perfetti Van Melle Benelux BV v. European Union Intellectual Property Office, Ct. of First Instance, No. T-390/15, 9/13/16 ).

The court's Sept. 13 affirmed the findings of the EU IP Office's opposition division and the board of appeal. An EU Trademark has effect throughout the entire EU, and exists alongside national trademarks.

PepsiCo, through various divisions such as Frito-Lay and Walkers, manufactures many different types of snack foods, including both sweet and salty chips. It holds EU word and figurative “3D'S” marks in classes 30 covering “preparations made from cereals.” PepsiCo uses this mark on many of its products.

Perfetti Van Melle Benelux BV's registration was also in class 30 but for sweet snacks, such as pastries and candies.

3D Meets Confusion Test

After the EU IPO published the registration, PepsiCo filed an opposition. The opposition division, board of appeal and court all sided with PepsiCo.

The dominant feature in both marks is the text or logo stating “3D”, and that shared element is visual and phonetically very similar in the two marks, the court said. That element conveys the idea of three-dimensionality in both marks, leading the court to find a high level of conceptual similarity.

The court rejected Perfetti's counterarguments, including that the possessive “s” in PepsiCo's “3D'S” mark makes the two marks less similar. It found a high level of similarity, combined with factors such as a relatively low level of consumer attention when buying snack foods, supports a finding of likelihood of confusion.

President of Chamber Savvas S. Papasavvas, along with Judges Egidijus Bielunas and Constantinos Iliopoulos, decided the case.

To contact the reporter on this story: Peter Leung in Washington at pleung@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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