What are Collective Trade Marks?
A collective trade mark indicates that the goods and services displaying the mark originate from members of a particular association. This particular case related to the EU collective trade mark for HALLOUMI.
Whilst the High Court’s decision was handed down before Brexit, it is worth noting that, as with ordinary EU trade marks, comparable UK rights have now been created from all EU certification and collective marks which were registered at EUIPO before 1 January 2021.
Background
In this case, the proprietor of the EU collective trade mark ‘HALLOUMI’ succeeded in its appeal to the High Court, which held that the applicant’s application for a figurative mark ‘HAJDU HALLOUMI’ (for identical goods) should be rejected on the basis of likelihood of confusion under section 5(2)(b) of the Trade Marks Act 1994.
Four grounds of appeal were raised against the Hearing Officer’s decision:
(1) The Hearing Officer had erred in concluding that the average consumer comprised only members of the ordinary public, and did not include members of the trade (such as supermarket buyers) who engaged in purchasing goods;
(2) The hearing officer had not afforded the HALLOUMI collective trade mark with an appropriate minimum degree of inherent distinctiveness as a collective mark;
(3) The hearing officer had erred in finding that the average consumer would only understand the HALLOUMI mark as the name of a cheese (and not a product produced by a member of the relevant association); and
(4) The hearing officer had misapplied the test of confusion and distinctiveness given the HALLOUMI mark was a collective mark.
The High Court’s Decision
The High Court considered that all of the grounds of appeal should succeed and the decision should be set aside.
The average consumer comprised not only the ordinary public but also trade purchasers such as supermarkets, which were considered to be the significant class of consumer. This was significant because, whilst the ordinary public may not regard the application as in any way referring to or designating origin from a member of the association i.e. they would not be confused, trade purchasers would consider the application to convey origin, namely that “HAJDU HALLOUMI” meant “This halloumi is made by Hajdu, a member of the Foundation” (the proprietor of the HALLOUMI mark). As such, a very strong likelihood of confusion was deemed to exist.
This case is highly fact-specific but does provide a useful reminder of the special nature of collective trade marks and how they are assessed in the context of opposition proceedings. In this case, finding that the average consumer included trade consumers was key to establishing a likelihood of confusion.
If you would like any further information on collective trade marks, please contact Emily Roberts or Jeremy Dickerson, or your usual intellectual property team contact.
Subscribe to our Concept newsletter and receive the latest intellectual property legal updates, news and event invitations direct to your inbox.