In a decision of 12 December 2017 the Brussels Court of Appeal overturned the first instance decision and decided that Aldi’s Buval beer does not infringe InBev’s trademark and is in fact not contrary to fair commercial practices.
This decision initially looks rather surprising given the earlier decision of the same Court of Appeal in a similar lookalike case brought by Maes against InBev (2013). In that case, the Court decided there was trademark infringement as well as unfair competition by InBev when it launched its BLUE beer.
The following circumstances were key in reaching a different decision in the recent InBev/Aldi case:
- the different sales channels of the Jupiler and Buval Pilsners. Aldi’s Buval Pilsner is sold exclusively in Aldi supermarkets, whereas the Jupiler Pilsner is sold in all supermarkets (except Aldi supermarkets) and through the catering sector. Apparently, the Court did not find any post-sales confusion, which occurs at the point of consumption rather than purchase;
- the relevant public has become used to the red, black and white colours in relation to Pilsners;
- the relevant public has become used to the use of shields and animals, whether or not in combination with the red, black and white colours.
This recent case highlights the importance of the particular circumstances in trademark and unfair competition cases before the Belgian courts.