Last 28 May 2020, the General Court of the European Union, in its judgment on Case T-677/18, rejected the registration of the Twins biscuits as a trade mark in the European Union on the grounds that the mark applied for could take unfair advantage of the reputation of the US mark, thus reiterating EUIPO's arguments.
The Board found that 'the fact that the mark applied for contains other word elements, such as the words "gullón" and "twins", ... does not in any way preclude the mark applied for from seeking to take advantage of the first earlier mark, by representing two sandwich biscuits visually similar to the one constituting that earlier mark, in order to benefit from the latter's power of attraction'.
Furthermore, it considers that the US trade mark, given its prolonged and intensive use, enjoys an 'exceptional reputation' in Spain and throughout the EU.
It also rejects the argument that Oreo is seeking to monopolise the representation of sandwich biscuits, since Gullón has chosen to reproduce a sandwich biscuit which is very similar to that of the first earlier mark, and states that 'the mark applied for is similar to the first earlier mark, has a link with it and takes unfair advantage of the latter's reputation not because it contains the representation of any sandwich biscuit', but because, ..., it includes the representation of two sandwich biscuits which have characteristics similar to those of the biscuit whose three-dimensional representation constitutes that earlier mark, as regards the round shape, the black and white colour of the filling, the thickness, the border punched with radial stripes and the interior decoration with fantasy shapes suggesting geometric figures. ”.
Find the complete text of the judgment here:
Written by: Cristina García Alzina
Image extracted from the European Union General Court Case