Although surfers tend to be relaxed people, surf company BILLABONG was not pleased with the new BILLA brand that was filed in the European Union (there are limits!). Therefore, Billabong filed an opposition against this trademark. Are BILLA and BILLABONG similar trademarks?

In a previous decision, the German trademark office did not think so. But the EUIPO takes a different view on the matter and finds the trademarks similar. The EUIPO is not bound by previous decisions of other trademark authorities. The opposition is therefore decided in favor of BILLABONG.

BILLA files an appeal and stresses that due to the additional BONG element, the overall impression is different. The trademark application also concerns Billa (and not BILLA) which creates a graphic difference. Finally, BILLABONG means waterhole and because of this conceptual difference a visual and aural similarity is neutralized. There is therefore no risk of confusion.

The Boards of Appeal of the EUIPO is not very impressed by the arguments and rejects the appeal. Both registrations concern wordmarks and the difference in spelling is irrelevant. Moreover, BILLABONG may also have a meaning, but only in Australia. It has not been shown that the European public understands this meaning or is familiar with it.

Although trademark law in the European Union has the same basis, each country has its own trademark history and interpretation. So, as we see in this case, it may happen that a trademark office in Germany takes a different decision than the European trademark office. This is of course not favorable for the consistency (while we tend to consent with the EUIPO decision).

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Arnaud Bos

“Trademark protection gives freedom to do business.”



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