Cheers to EUIPO case law adapting to new trends in non-alcoholic and alcoholic beverages

In its decision in Case R 964/2020-G (Zoraya / Viña Zoraya) of 13 April 2022, the EUIPO Grand Board (GB) confirmed that "non-alcoholic beverages" are at least slightly similar to "wines, spirits and liqueurs" and that the same applies to "flavoured carbonated beverages" and “wines” on the Spanish market. This decision takes into account recent practices and market trends, as well as the reality in the beverage sector related to non-alcoholic and low-alcoholic beverages (also called “Nolo” beverages). The GB partially deviates from its previous decision 21/01/2019, R 1720/2017-G, ICEBERG (fig.)/ICEBERG as material related to the aforementioned factors was not submitted in that case. The remaining contested goods (i.e. "Waters; Vitamin enriched sparkling water [beverages]") were found to be dissimilar to "wines, spirits and liqueurs" and this reflects the existing practice.

Evolution of the beverage market reality and similarity of products

General Court (GC) case law states that the comparison of goods and services may vary over time due to market reality. The decision covered here contains a detailed analysis of the beverage market, taking into account the evolution of market reality and refers to an amicus curiae brief filed by INTA.

In short, a trend has taken place over the last few years, for various reasons, in particular health reasons, leading to an increased focus of the beverage industry on “Nolo” beverages. This shift is confirmed by the arguments, facts and evidence filed by the appellant, which were submitted from the outset and differed from the materials filed in previous GC and EUIPO Board of Appeal cases. At least in Spain, some beverages are available on the market (not only in alcoholic versions but also in non-alcoholic versions (e.g. beers, cocktails, wines or spirits). Moreover, these are generally known facts arising from the experience of Spanish consumers, in particular when buying non-alcoholic and alcoholic beverages in supermarkets, specialised commercial premises and on the Internet, as well as when ordering these goods in restaurants, bars and pubs.

Partly contrary to EUIPO case-law, the alcohol content of the product is only one of the factors to take into account when comparing the goods, and is not decisive, as other factors are also relevant, such as those mentioned above and the further obvious similarities (e.g. common method of use, same manufacturers, same distribution channels, same characteristics, and  being increasingly in competition). Aside from these factors, the argument that alcoholic beverages have a higher price is not considered relevant in this decision.

New findings on similarity of goods involving non-alcoholic drinks

• “Non-alcoholic beverages” are similar to “wines” Given that “non-alcoholic beverages” also cover “non-alcoholic wine”, “non-alcoholic beverages” and “wine” cannot be regarded as dissimilar and their degree of similarity is at least low.

• “Non-alcoholic beverages” are similar to “spirits and liqueurs” and “Flavoured carbonated beverages” are also similar to ‘wine’.
   
  The above-mentioned reasons can also be applied to the comparison of “Non-alcoholic beverages” and “spirits and liqueurs” on the one hand, and “Flavoured carbonated beverages” and “wine” on the other side. The GB’s conclusion is based on this reasoning, as well as on arguments, evidence and facts previously not taken into account, and on INTA’s submission, all of which were put forward for the first time in these proceedings and which correspond to the reality of the market.

Next steps

While the above-mentioned findings were made in the context of the Spanish market, they could also be extrapolated to other EU markets. The recognition of changing market practices and the similarity (at least to a low degree) between alcoholic and non-alcoholic beverages will clearly help owners of brands covering alcoholic beverages to more easily defend against applications covering non-alcoholic beverages and vice versa.

Authored by Imogen Fowler and Paula Moreno.