AB InBev fights Belgian idea of beer packaging 'monopoly' on colour blue
The Consumer Court of Brussels ruled earlier this month that most consumers chose Maes beer on the basis of its packaging colour, and that by choosing identical blue packaging for its Jupiler Blue brand (pictured below left), AB InBev had committed the trademark infringement.
But AB InBev told BeverageDaily.com that it would appeal against the ruling - which only applies to sales in Belgium - to the Court of Appeal in Brussels.
Monopoly on colour blue?
Karen Couck, director of external communications, said: Since April 2011 we used blue cans for Jupiler Blue, as a clear reference to the name of our successful innovation with much lower alcohol content.
"In March of this year, the packaging was further refined with a new shade of blue. We still believe that it is not possible to claim a monopoly on the color blue in general for beer packaging, bearing in mind that different brands of beer use blue as a dominant color on their labels.
"In that sense, we will again ask to cancel the trademark registration of Alken-Maes on the basis of lack of distinctiveness."
Paul Maeyaert and Jeroen Muyldermans from law firm Altius represented Alken Maes in the case against AB InBev, and the law firm said that its client had made huge investments in the Maes brand - sold in iconic blue cans and bottle form (pictured right).
This was true to such an extent that 60% of Belgian consumers linked the colour blue to Maes beer, the lawyers argued, citing research stating this as proof that the colour trademark had repute in the Benelux countries.
AB InBev had also used a similar positioning and font for the word 'blue', and a similar blue and white colour scheme, the court said, while the near disappearance of the word 'Jupiler' against its background risked public confusion.
'No risk of confusion' - AB InBev
Stating AB InBev's disappointment with the ruling, Couck said the firm would nonetheless respect the court's decision and take the necessary measures to carry out the ruling.
"Once the judgment is formally notified, AB InBev will have one month to inform its customers that the current packaging of Jupiler Blue will be recalled," she explained.
"However, we will appeal to this ruling, because we remain convinced that there is no risk of confusion from consumers between our packaging and that of Maes Pils.
"We believe the color and layout of the different packagings as well as the font of the logo is clearly distinctive. Our own research indicates that consumers who compare the two different packagings in the shops, note the differences within the shortest of times and do not confuse them."
Shoppers were confused - Alken Maes
Alken Maes corporate communications manager, Lars Vervoort, told this publication that AB InBev had 30 days to take products off shelves. "For us the most important thing is that it will bring the current confusion among clients and consumers that we see today to an end.
"We have seen people arriving at supermarket cash desks with the wrong bottle or can. Consumer confusion was quite clear, so we are quite happy that this will be brought to an end, even though AB InBev has launched an appeal."
Vervoort said that Alken Maes had patent its specific shade of blue since 2006, while AB InBev's can design was also very similar to his firm's.
"On supermarket shelves we also saw, that while Jupiler Blue had an ABV of 3.3%, it was placed just next to our packaging. Normally, a low alcohol beer would sit on a different part of the shelf with alcohol-free beers," he said.
Lawyer explains case
Jeroen Muyldermans from Altius told BeverageDaily.com that Alken Maes had secured injunctive relief based on a national Benelux, as opposed to a community, trademark, when asked whether the company planned to take action in other jurisdictions.
"At the time the proceedings were introduced, the packaging of Jupiler Blue had only been redesigned in Belgium, not in France, Luxemburg or the Netherlands," said.
"Also, Belgium is Maes' main market where the blue enjoys the most reputation. Alken-Maes will therefore probably not pursue an action outside that territory."
Asked if he could think of comparable colour trademark cases, Muyldermans said: "We have dealt with a number of similar cases over the past years. Paul Maeyaert and I successfully defended Red Bull against a blue/silver energy drink as well as the French luxury group Moët Hennessy, marketing the orange Veuve Clicquot champagne, in a case against an orange sparkling wine."
