Grog by Any Other Name

     (CN) – An Austrian brewer cannot call its beer and Scotch whiskey Royal Shakespeare because the rights to that name belong to the famous British theater troupe, Europe’s General Court ruled.
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     Though the EU’s trademark body initially let Jackson International Trading Company register the trademark in 2003, the Royal Shakespeare Company pointed out that its figurative marks for “RSC-Royal Shakespeare Company” date back to 1997.
     The EU’s Office for Harmonization in the Internal Market refused to cancel Jackson’s trademark in 2009, but an appeals board overturned that decision later that year.
     On Friday, the General Court in Luxembourg upheld the decision of the trademark office’s appeals board.
     Jackson had claimed unsuccessfully that the risk of association was negligible since the theater company deals with an allegedly elite clientele.
     “In this day and age, going to the theatre is an activity which is in principle open to the masses,” the 15-page decision states. “Access to theatres is available to all and, in theory, thanks to affordable prices, to the average consumer. … Accordingly, those activities are within the reach of the average consumer and hence the public at large.”
     The judges also pointed out that a mark’s reputation depends both on customers and the public sphere.
     “It should be noted that the reputation of a mark may go beyond the relevant public as regards the goods or services for which that mark was registered,” the decision states. “Thus, even if the earlier trade mark had been registered for goods and services aimed at a limited public, which is not true in the present case, it would be known to a wider public, namely the public at large, precisely by reason of its reputation.”
     The Royal Shakespeare Company’s trademark enjoys an undisputed “exceptional reputation” across the European Union, according to the court.
     Allowing Jackson International to use the Royal Shakespeare name for its beer, spirits and other products would give Jackson International the unfair advantage of the theatre troupe’s reputation.
     “In the present case, the applicant would benefit from the power of attraction, the reputation and the prestige of the earlier trade mark for its own goods, such as beer and other beverages, and for its services,” the decision states. “In the beverages market, those goods would attract the consumer’s attention thanks to the association with the intervener and its earlier trade mark, which would give the applicant a commercial advantage over its competitors’ goods. That economic advantage would consist of exploiting the effort expended by the intervener in order to establish the reputation and the image of its earlier trade mark, without paying any compensation in exchange. That equates to an unfair advantage taken by the applicant of the repute of the earlier trade mark.”
     Jackson International has two months to file an appeal with the Court of Justice on points of law only.

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