The Antimonopoly Committee of Ukraine has completed the consideration of the case at the request of PJSC “Carlsberg Ukraine”, which considered the actions of PJSC “Obolon” to be unfair competition.
Carlsberg believed that Obolon during the release of beer under its “Kyivske” brand imitates the appearance of its “Lvivske 1715” beer bottle.
According to the applicant, the use of such registration may lead to confusion about the activities of business entities.
As evidence of his position, the applicant also submitted to the Antimonopoly Committee the conclusions of experts who analyzed the collar (label on the neck bottles) of “Kyivske” beer and “Lvivske 1715” beer, as well as the results of a sociological survey.
“Obolon”, in turn, provided experts’ conclusions (regarding the external design of the bottle as a whole) and the results of a consumer survey, which indicated the opposite conclusions.
As a result, the Committee came to the conclusion that, despite certain similarities of the collars, in general, the bottles have a number of differences:
– Bottle sizes;
– Weight of bottle contents (0.45 l and 0.6 l);
– Material, color, and shape of the bottle (green glass and brown plastic);
– The lack of a label on the bottle of “Kyivske” beer.
Also, according to the results of the survey of 314 consumers conducted by the Committee, it was established that the vast majority of them distinguish the mentioned brands of beer well. In particular, the verbal element “Lvivske 1715” is recognized as a well-known mark in Ukraine, as is the combined designation “Obolon”, and each of them has a high degree of distinctiveness.
The Antimonopoly Committee emphasized that when evaluating the similarity of product design, the general type of product (product packaging as a whole) should be evaluated, and not its individual elements.
As a result, the Committee determined that the long-term activities of enterprises on the territory of Ukraine, the large scale of sales of products on the market of low-alcohol products and, in particular, beer, lead to the association of the products produced by “Obolon” and “Carlsberg Ukraine” only with these manufacturers, excluding the possibility of confusing the investigated products of two enterprises.
In addition, “Carlsberg” submitted to Ukrpatent an objection to the registration of the TM in the name “Obolon” in the form of a general type of collar. However, Ukrpatent took the side of “Obolon” here as well, answering that these designations are subject to registration.