Every big city seems to have a Harry's Bar, some of them very famous, and so an attempt to trade mark the term across the EU was an ambitious move. Harry's New York Bar SA ("New York") was undeterred. It applied to register the mark Harry's New York Bar as an EUTM in respect of various goods and services in classes 25 (clothing etc), 30 (coffee, tea, etc), 32 (non-alcoholic beverages etc) and 43 (bar and restaurant services).
Its application was opposed by Harrys Pubar AB ("Pubar"), in respect of all the goods and services applied for. Pubar relied on earlier Swedish national mark registrations for versions of a logo (above right) in classes 25 (clothing) and 43 (serving of food and drink through restaurant, pub and café services") and a national registered trade name for the words Harry Pubar Aktiebolag.
The opposition was upheld by the EUIPO based on the logo marks in respect of classes 25 and 43 but not the Class 30 and 32 goods other than beer. Both sides appealed.
In assessing likelihood of confusion with the earlier Swedish national marks in an area of consumer goods and services, the General Court held that the relevant public was the Swedish public.
Are restaurant and bar services similar to class 30 and 32 goods although in different classes? In an unsurprising case overall, this was perhaps the analysis of most general use. The General Court held they were, and went further than the EUIPO had done and said that this included beer. Those goods and beverages were all complementary to the serving of food and drink.
Were the earlier marks similar to the mark applied for? The overall impression created by the application was that it was similar to the earlier marks, and was the case visually, phonetically and conceptually. "Harrys" was the dominant element of Pubar's marks, the additional words were not distinctive and the graphic elements would be viewed as merely decorative. The use of an apostrophe in the application was also not a relevant difference as both Harrys and Harry's would be viewed by the Swedish public as possessive.
Overall there was a likelihood of confusion between the earlier logo marks and the mark applied for. Pubar's appeal was upheld and New York's rejected.
Case T-84/14 and T-97/14
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