Chiquita bananas get to keep their new trademark

Image source: agronegocios.eu

Chiquita Brands International has won the right to keep using its new trademark for bananas in the Netherlands:

and

Interestingly, it was challenged by its competitor Fyffes International, with which it almost merged in 2014. The injunction was made because Chiquita’s mark was said to resemble too closely to Fyffes’:

HOYA;

   and

The infringement claim, was, however, dismissed for several reasons:

First, Hoya was unable to prove that its word and diamond marks were genuinely being used. As a matter of fact, an article on Fresh Plaza notes that Fyffes has not been using its HOYA brand in Europe for the last five years. Moreover, the bananas they do sell are small in volume and go exclusively to wholesalers and ripening installations. The point that a trademark must be in use for it to be threatened by another is key in trademark litigation.

Second, there is a low degree of similarity between Chiquita’s trademark and Fyffes’ signs. This is because the signs need to be evaluated in their entirety and not just reduced to a comparison of the words HOLA and HOYA. Therefore, one would have to measure “Hola banana!” To “HOYA” and take into account the design of the signs which are visually quite different. Furthermore, conceptual dissimilarity is guaranteed by the meaning of each word, which the court acknowledged the average Dutch consumer can understand.

In trademark litigation cases, descriptive elements of a trademark (the word banana in this case), are often disregarded but this court ruled that the word “Hola” could not be considered the dominant component of the mark.

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