Likelihood of Confusion in Composite Beverage Marks

In its decision of 19 February 2026 in Opposition No. B 3 236 513, the Opposition Division of the European Union Intellectual Property Office upheld an opposition brought by Riviera S.R.L. against an application for a figurative European Union trade mark comprising the verbal elements “Veneto Mandarin.” The ruling, grounded in Article 8(1)(b) of the European Union Trade Mark Regulation, offers a carefully reasoned illustration of the Office’s methodology in assessing likelihood of confusion in the context of composite beverage marks, particularly where descriptive and potentially geographical elements intersect with distinctive verbal components.

Factual and Procedural Background

The opposition was directed against European Union Trade Mark Application No. 19 146 705, filed for goods in Class 32, including soft drinks, lemonade, juice drinks, sparkling water and juices. The application was opposed in its entirety on the basis of earlier EUTM Registration No. 17 980 867, likewise covering carbonated and non-carbonated beverages in Class 32.

The Opposition Division found the goods to be identical, as the contested goods were fully encompassed within the broader category of “carbonated and non carbonated beverages” protected by the earlier mark. The identity of goods constituted an important premise for the subsequent global assessment.

Legal Framework: Article 8(1)(b) EUTMR and the Global Assessment

Article 8(1)(b) EUTMR precludes registration where, because of the identity or similarity of the signs and the goods or services covered, there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected.

The decision faithfully follows the canonical principles articulated by the Court of Justice in Sabel v Puma and Canon v Metro-Goldwyn-Mayer, namely that likelihood of confusion must be assessed globally, taking into account all relevant factors and the interdependence between them. The judgment also reflects the reasoning in Lloyd Schuhfabrik Meyer as regards the perception of the average consumer, who is deemed reasonably well informed and reasonably observant and circumspect.

Of particular note is the Division’s reliance on the unitary character of the EU trade mark, as clarified in ARMAFOAM v NOMAFOAM: it is sufficient that a likelihood of confusion exist for a non-negligible part of the relevant public within the European Union.

The Relevant Public and Degree of Attention

Given that the goods at issue consist of everyday beverages, the relevant public was defined as the general public in the European Union, displaying an average level of attention. The Division correctly observed that such goods are mass-consumption items, purchased frequently and without heightened deliberation.

Importantly, the decision further recognised that beverages are often ordered in noisy environments, bars or nightclubs, thereby enhancing the relative weight of phonetic similarity. This echoes the reasoning of the General Court in MYSTERY v Mixery, where aural perception was accorded particular significance in the context of drinks.

Analysis of the Signs

Descriptive and Geographical Components

Both marks comprised the verbal elements “Mandarin” and “Veneto” (albeit in inverse order), embedded within figurative presentations.

The Division held that “mandarin” would be understood throughout the Union as referring to the citrus fruit, and therefore as indicating flavour. In relation to beverages, it was deemed non-distinctive. This conclusion is consistent with established practice concerning flavour descriptors in Class 32.

The assessment of “Veneto” was more nuanced. For a segment of the public, it designates a region in Italy and thus functions as a geographical indicator, lacking distinctiveness. However, for at least a non-negligible part of the EU public unfamiliar with Italian regional geography, the term would appear fanciful and devoid of meaning. The Division elected to focus its analysis on this latter segment, in accordance with the principle that confusion affecting only part of the relevant public suffices to uphold an opposition.

This analytical move is doctrinally significant. It underscores that, where a sign contains a potentially geographical term, its distinctiveness may vary across the Union. The Office is entitled to adopt the scenario most favourable to a finding of confusion, provided it is not negligible.

Figurative and Decorative Elements

Both marks included various figurative features, background colours, framing devices, and stylised fonts. The Division characterised most of these as decorative or weak at best. The rectangular frame in the earlier mark was considered a commonplace highlighting device. The can-shaped background in the contested sign was deemed indicative of packaging rather than origin.

Although the contested sign featured a lilac figurative element behind the word “MANDARIN,” this was found to have no conceptual meaning, and therefore did not materially alter the overall impression.

In line with the General Court’s reasoning in SELENIUM-ACE v SELENIUM SPEZIAL A-C-E, the Division reiterated that, in composite marks, the verbal components generally have a stronger impact on consumers, who refer to marks by their words rather than by describing their figurative aspects.

Visual, Aural and Conceptual Comparison

Visually, the signs coincided in both “Mandarin” and “Veneto,” differing primarily in their sequence and in certain figurative features. The visual similarity was assessed as below average.

Aurally, however, the overlap was more pronounced. The same verbal elements would be pronounced, albeit in reverse order. The Division found at least an average degree of phonetic similarity, a finding that assumed heightened importance given the purchasing context.

Conceptually, the common element “mandarin” was considered descriptive and thus of limited impact. “Veneto,” for the relevant segment of the public, would be fanciful and thus distinctive. Conceptual similarity was therefore low but not absent.

The conclusion that similarity in at least one aspect suffices to proceed to a global assessment reflects the orthodox approach derived from Sabel v Puma.

Distinctiveness of the Earlier Mark

No enhanced distinctiveness through use or reputation was claimed. The earlier mark was therefore assessed as possessing normal inherent distinctiveness overall, notwithstanding the presence of weak or non-distinctive elements.

This finding is doctrinally orthodox: even composite marks containing descriptive components may, as a whole, enjoy normal distinctiveness if their overall configuration is not descriptive of the goods.

Global Assessment and Sub-Branding Risk

The decisive phase of the analysis lay in the interplay between identical goods and the similarity of the signs. Invoking the principle of interdependence articulated in Canon v Metro-Goldwyn-Mayer, the Division held that the identity of goods compensated for the relatively modest degree of visual and conceptual similarity.

The phonetic coincidence, coupled with identical goods and average consumer attention, created a credible risk that the contested mark would be perceived as a variant or sub-brand of the earlier mark. The reasoning resonates with the General Court’s observations in Miss Fifties v Fifties, where the addition or reconfiguration of elements was insufficient to dispel an association with the earlier sign.

The conclusion was that, for the non-negligible segment of the public perceiving “Veneto” as fanciful, there existed a likelihood of confusion within the meaning of Article 8(1)(b) EUTMR. In light of the unitary character of the EU trade mark, that finding was sufficient to reject the application in its entirety.

Observations and Practical Implications

This decision is instructive in several respects.

First, it confirms that the inversion of two verbal elements does not necessarily preclude a finding of similarity, particularly where goods are identical and one of the shared elements is distinctive for at least part of the public.

Second, it illustrates the Office’s pragmatic handling of geographically suggestive terms whose meaning may not be uniformly recognised across the Union. The identification of a non-negligible public segment for whom such a term is distinctive can decisively shape the analysis.

Third, it underscores the limited exculpatory value of decorative figurative features in the beverage sector. Packaging cues, background colours and standard frames rarely suffice to counterbalance coinciding verbal elements.

This decision reiterates the practical importance of phonetic similarity in fast-moving consumer goods. Where products are frequently ordered orally and under less-than-ideal acoustic conditions, aural overlap assumes disproportionate evidentiary weight.

In sum, Opposition No. B 3 236 513 represents a coherent and jurisprudentially grounded application of Article 8(1)(b) EUTMR. In the crowded field of beverage branding, the strategic selection and arrangement of verbal elements remains paramount. Even modest shifts in word order will not immunise an applicant from refusal where the core distinctive component is shared and the goods are identical.

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