Not All Elements Are Created Equal: The Hello Fruity Case

The EUIPO’s decision in Importaco SA v HelloFresh SE (R 119/2020-4) highlights the importance of evaluating each element of a trademark in its entirety. In this case, the Fourth Board of Appeal (BoA) assessed whether the similarity between Importaco SA’s Hello Fruity logo and HelloFresh SE’s HelloFresh mark created a likelihood of confusion, ultimately ruling in favor of HelloFresh.

Case Background

Importaco SA, the Applicant, sought to register the HELLO FRUITY logo as an EU trademark under class 29 (foodstuffs of animal origin) and class 31 (agricultural products), but the application was opposed by HelloFresh SE, the Opponent. HelloFresh based its opposition on an earlier EU trademark registration for HelloFresh in the same classes. The EUIPO’s Opposition Division (OD) initially sided with HelloFresh, determining that the common element HELLO was distinctive and created a likelihood of confusion between the two marks. Importaco then appealed, seeking to overturn the OD’s decision.

Arguments Presented by the Applicant

Importaco argued that the OD had erred in its assessment by disproportionately emphasizing the HELLO element, which it claimed did not uniquely distinguish HelloFresh’s brand. Importaco presented several points in its appeal:

1. Equal Emphasis on Elements:
   Importaco contended that HELLO and FRUITY in the HELLO FRUITY logo held equal importance, creating a distinct overall impression separate from HelloFresh. The Applicant argued that HELLO in its sign simply highlighted FRUITY, suggesting that the marks were conceptually different.

2. Visual and Conceptual Dissimilarity:
   The Applicant also noted that the stylized design of the HELLO FRUITY logo and the unique coined term HelloFresh created separate visual and conceptual impressions, which would prevent consumer confusion.

Arguments Presented by the Opponent

HelloFresh SE, on the other hand, supported the OD’s findings, arguing that:

1. Identity of Goods:
   Both parties’ marks covered identical goods in classes 29 and 31, which strengthened the likelihood of confusion.

2. Aural and Visual Similarity:
   The Opponent argued that the marks were aurally similar due to the identical HELLO prefix and that the visual similarities of the HELLO FRUITY logo were not enough to distinguish it from HelloFresh.

3. Conceptual Similarity:
   HelloFresh pointed out that both marks shared the word hello followed by an adjective, creating a high degree of conceptual similarity, which outweighed any minor differences in visual design.

Decision of the Fourth Board of Appeal

After reviewing the arguments, the BoA upheld the OD’s decision, supporting the view that HELLO was the distinctive element in both marks and that the similarities between the two created a likelihood of confusion. Key findings of the BoA included:

1. Distinctive Character of HELLO:
   The BoA ruled that the common term HELLO was sufficiently distinctive for food-related goods in classes 29 and 31, contributing significantly to the marks’ overall impression. Despite FRUITY and the figurative elements in HELLO FRUITY, these additional elements did not sufficiently alter the perception of similarity between the marks.

2. Degree of Similarity:

   • Visual Similarity: The BoA found an average degree of visual similarity, noting the common letters and arrangement of the marks.

   • Aural Similarity: The BoA determined that the two marks had an above-average degree of aural similarity, as the first seven characters in both marks were identical and began with the same prefix, HELLO.

   • Conceptual Similarity: Given the structure of HELLO followed by an adjective in both marks, the BoA concluded that they were conceptually similar to a high degree.

3. Likelihood of Confusion:
   The BoA concluded that the visual, aural, and conceptual similarities between HELLO FRUITY and HelloFresh, combined with the identity of goods, resulted in a likelihood of confusion for consumers. The BoA ultimately dismissed Importaco’s appeal in its entirety, awarding costs of €1,170 to HelloFresh SE.

Key Takeaways from the Hello Fruity Decision

This decision reinforces several important principles in EU trademark law:

1. Distinctive Elements and Overall Impression:
   Appeals based on the argument that elements should be given equal importance are unlikely to succeed if one element is notably distinctive. Here, HELLO was deemed the most distinctive part of both marks, which contributed to the overall impression of similarity.

2. Similarity and Consumer Confusion:
   When marks share identical or highly similar goods, even minor differences may be insufficient to prevent confusion. The common prefix and identical classes led to the finding of a likelihood of confusion, emphasizing the importance of distinct, unique branding.

3. Appeals and Judgement Calls:
   Appeals must address clear misapplications of law rather than disagreements over the judgment calls of the Opposition Division. This case serves as a reminder that appeals aimed at reinterpreting judgment calls without new material evidence are often unsuccessful.

Conclusion

The Hello Fruity case underlines the significance of distinctive elements in trademark assessments and demonstrates how visual, aural, and conceptual similarities can collectively contribute to a likelihood of confusion. For businesses, it serves as a cautionary example of the importance of creating trademarks with distinct and unique elements, particularly in competitive markets.