EUIPO considers similarity between alcoholic and non-alcoholic beverages and consumer habits - KINGSMAN Appeal

On 24 January 2025, the EUIPO’s Fifth Board of Appeal handed down its decision in Case R 1426/2024-5, rejecting the appeal brought by Agate Integrated Engineering SDN BHD, a Malaysian firm, against the partial refusal of its European Union trade mark application for the word mark KINGSMAN in Class 32. The application had been opposed by Marv Studios Limited, a UK-based firm and owner of the mark KINGSMAN in class 33. The appeal was dismissed in its entirety, confirming the earlier findings of the Opposition Division.

The case is relevant when considering whether alcoholic and non-alcoholic beverages are similar, as the Board of Appeal made some interesting findings on the treatment of non-alcoholic versions of alcoholic beverages.

Background

The applicant sought registration of KINGSMAN for a wide range of beverages in Class 32 including various beers, malt drinks and “other non-alcoholic beverages”. Marv Studios Limited opposed the application under Article 8(1)(b) EUTMR (the provision that allows an opposition based on an earlier similar mark registered for identical or similar goods). The opposition was based on an earlier word mark KINGSMAN, registered in class 33 for various alcoholic beverages in that class, including gin, wine, and spirits.

Similarity of the Goods

As the marks were identical, the dispute concerned which of the respective goods were similar. The Board assessed the similarity of the goods based on their nature, purpose, method of use, distribution channels, and end users. Alcoholic beers and mixed drinks were found to be similar to the earlier mark’s goods to at least an average degree. Significantly, the Board found that non-alcoholic variants, such as alcohol-free beers and malt beverages, were similar to a low degree to the Opponent’s goods in class 33, citing overlapping consumption contexts.

Below is a list of the parties’ goods. The applicant’s goods that were found to be similar to the opponent’s list of goods in class 33 are shown in bold, and the goods that were found dissimilar are shown in italics.

Comment on Consumer Habits

The finding of similarity between “other non-alcoholic drinks” and their alcoholic equivalents reflects changing consumer habits. Today’s consumers are familiar with alcohol-free versions of spirits and cocktails, and producers often market both versions side-by-side. As a result, the traditional separation between alcoholic and non-alcoholic beverages is no longer as decisive as what it might have been some decades ago, especially as many alcohol brands have non-alcoholic versions of the same products. 

Comment on the Similarity Tool

Another interesting aspect of the case was the discussion concerning the relevance of the EUIPO’s similarity tool, the software used by the EUIPO in providing guidance on whether certain goods and services are similar. Whilst the applicant submitted a screenshot from the EUIPO’s similarity tool, the Board considered that evidence from the similarity tool is persuasive, but not binding. The evidence from the similarity tool in this matter was unusual though, as it was alleged that a misleading screenshot was provided to the Board showing results that were different from the actual findings of the similarity tool. 

Conclusion 

The takeaway is subtle: a standard orange juice is not considered as similar to gin or other spirits, but a non-alcoholic cocktail consisting mainly of orange juice or other fruit juices, but sold as a direct alcohol-free alternative might be similar to gin – even if the contents might be simply fruit juice. Brand owners in the drinks industry should take note of this nuanced distinction, particularly in light of increased brand extension into non-alcoholic ranges.