Trade mark piggy problems: Peppa out on top

After a U-Turn on validity, Peppa Pig has brought home the bacon and succeeded in having the ‘Tobbia’ trade mark deemed invalid in the EU.

The owners of the ‘Peppa Pig’,  Entertainment One UK and Ashley Baker Davies, brought a case in relation to their EU trade mark stating that ‘Tobbia’ mark which registered in the same class of goods, Class 25 for clothing, footwear and headgear, and depicted a suspiciously similar looking pig, was invalid.

When the case was first heard by the EUIPO Cancellation Division, surprisingly they ruled the two marks were not confusingly similar and therefore, the Tobbia mark was valid.

This decision was appealed by the owners of Peppa Pig to the EU IPO First Board of Appeal.

The Board reconsidered the case and focused on identifying the similarities and differences between the mark, looking at the brands visually, aurally and conceptually.

The Board highlighted a number of visual similarities including an almost identical head, snout mouth and eyes of both pigs. In addition, the overall figurative shape was similar.

However, in contrast the clothing, colours used and word elements were different in the two marks. The owner of the Tobbia marked tried to argue that the animal represented in their mark was a tapir, rather than a pig. However, this was dismissed by the Board.

While the two-word elements do not seem to be similar, the Board highlighted the similarity of a double letter in the middle of the word which would create a similarity when spoken.

Of course, as the marks were registered in the same class of goods, there was no argument to dispel similarity there.

Overall, the Board decided that the clear visual similarities as well as the similar goods, was enough to create a likelihood of confusion between the two marks.

Therefore, the Board declared the invalidity of EU trade mark ‘TOBBIA’ for all goods.

The outcome of this case is not surprising but the fact the case needed to be appealed to reach this stage, is the surprising part.

For more information on how to protect your brand in the EU, contact The Trademarkroom team today.

By Ellis Sweetenham