The Oktoberfest is fair game


Oktoberfest in Munich is recognized as the world's largest festival, inspiring numerous Bavarian-themed festivities globally, all branded as 'Oktoberfest.' This proliferation has led to the term being used descriptively for similar events and associated products or services. Recently, the European Union Intellectual Property Office's Board of Appeal (BoA) upheld the rejection of the word mark ‘Oktoberfest’ for services classified under class 43, with significant implications for the evaluation of trademark conflicts involving this term. In August 2022, the City of Munich sought to register an EU trademark encompassing various services in class 41, such as food provision and hotel services. However, FCRB IMPEX SRL opposed this application, citing their earlier Romanian trademark for related services, which had been registered in 2009. The EUIPO's Opposition Division initially found no likelihood of confusion and dismissed FCRB's opposition, prompting an appeal to the BoA. The BoA ultimately affirmed the lower decision, ruling that although the City of Munich required FCRB to demonstrate genuine use of their mark, it presumed such use was established across all services. Despite the identical nature of the services, the BoA noted that the terms ‘OKTOBER FEST’ and ‘Oktoberfest’ would be perceived by the Romanian public as indicative of the traditional Munich festival, which is now widely commercialized. The Board determined that the visual and phonetic similarities were minimal, primarily due to the presence of distinctive elements in both marks, including a distinctive graphic of a beer mug with wings. In evaluating the likelihood of confusion, the BoA emphasized that weakly distinctive elements do not typically create confusion unless bolstered by significant market presence or public recognition, which FCRB failed to demonstrate effectively, leading to a ruling that excluded the possibility of confusion.



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