There are no trademark registers in fairy tales. Little Red Riding Hood never registered her name or image as a trademark. Which is a real shame, as had she done so, she, her children, her grandchildren and descendants would have made a killing from the license fees.
But it’s no surprise that other people have registered her name. Take Rotkäppchen-Mumm Sektkellereien, for example. This famous producer of sekt (the German version of champagne, roughly speaking) uses the trademark Rotkäppchen for bottles of sekt with a red capsule, which is literally a red hood on the neck of the bottle. Little Red Riding Hood may be too young to drink, but she is doing extremely well as an alcoholic beverage brand. Obviously, this German sparkling wine producer wants to keep things that way.
This is why it immediately objected to a new European trademark application for an alcoholic beverage that uses a figurative mark without text. It’s simply a picture of a hooded cape. A red hooded cape, just like Little Red Riding Hood’s.
Rotkäppchen-Mumm based their objection to the figurative mark on its own word marks Red Cap and Rotkäppchen. Their argument was that red caps are red caps, whether they are expressed as words or images.
The European Trademarks Office (EUIPO) thought differently. They found that there is no similarity − visual, audial or conceptual − between these word marks and the figurative mark of the red cape.
According to the Trademarks Office, the target group (traders and drinkers) will associate the word marks Red Cap and Rotkäppchen with a red cap or a fairy tale character, while the figurative mark will be perceived as ‘a person dressed in a red cloak’. In their opinion, these are two quite different things. The fact that the German sparkling wine brand is famous and distinctive (überdurchschnittlich kennzeichnungskräftig) was not a consideration. Bearing no similarity means exactly that.
Theoretically, it is possible for word marks and figurative marks to bear a conceptual resemblance to each other. The word mark Tiger could successfully object to a figurative mark of a tiger being used to promote the same products or services, and the word mark Turquoise could undertake action against the colour mark turquoise. But the Red Cap case shows that such comparisons may be judged very differently in practice. There are no certainties, not even in trademark law, and each case must be examined on its own merits.