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UKIPO refused the Kelloggs opposition against Fuller’s “Fruit Loop” trade mark

Written by Floriane Barre, an international intern on 13 May 2019

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This case sets Fuller’s – the British brewery – and Kelloggs – the giant of cereal industry in a dispute. In June 2018, Kelloggs formed an opposition against the “Fruit Loop” seasonal summer beer of Fuller’s. The giant claims that it infringes its trade mark “Fruit Loop” for one of its cereals.

Kelloggs company uses section 10 (3) Trade Marks Act 1994 which details that use of an identical or similar sign for goods or services, whether identical, similar or dissimilar, if the use is detrimental to, or takes unfair advantage of the distinctive character or repute of the mark on the UK market can be trade mark infringement.

On this basis, Kelloggs claims that Fuller’s beer benefits from the reputation of Kelloggs cereals. Moreover, it held that the use of “Fruit Loop” as the name of an alcoholic beverage deteriorates its brand image.

Fuller’s defence was based on two arguments. Firstly, it argues that the two products are really different because one is an alcoholic beverage and the other one is breakfast item. Secondly, it claims that in a shop, the beers are usually on a distant place from the cereals. Those two arguments help the defence to prove that the consumers cannot confuse the two products. Therefore, there is no possibility for the “Fruit Loop” beer to take an unfair advantage of the Kelloggs reputation and to deteriorates its brand image.

The UK Intellectual Property Office (UKIPO) gave its decision on the 2nd of May 2019. It decided that the marks are similar but only to a low degree. It can be explained by the following reasons. Fuller’s mark includes extra terms “tropical fruit pale ale”. Moreover, we can find an alcohol content label on the Fuller’s bottle of beer.

Therefore, the UKIPO held that Fuller’s beer had a distinctive feature which is likely to help the consumers to not be mistaken between cereals and the beer. In addition, the UKIPO held that the Kelloggs cereals “Fruit Loop” lack reputation in the UK market (much more in US one).  Considering that, it is not possible for Fuller’s brand to take an unfair advantage of the repute of Kelloggs brand, and Kellogg’s opposition has failed.

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