Such is the similarity that some European consumers have been fooled into thinking that the promise of longer-lasting energy (that’s at the core of Duracell’s brand) has been stretched into an energy drink. Bloggers have been singing its praises and have even dubbed it the ”official energy drink of Duracell’.
El Nino has registered the name in its native Czech Republic and is selling it in European countries where Duracell has a minimal presence. Because a mark cannot be refused on the basis of the reputation of another trademark, El Nino’s initial application has been accepted in Australia.
A trademark lawyer, Trevor Choy, said it wouldn’t have made sense for Gillette to pre-empt this problem by getting a trademark covering beverages, because the company didn’t intend to go into energy drinks.
”It might prove difficult for Procter to stop them,” he said. ”They’re going to have to prove that such is the strength of the Duracell brand that consumers might believe that this brand has transcended that product category and into a new one.”
A spokeswoman for P&G would not comment because the drink was ”not a Duracell product or a licensee”.
The general manager of trademarks at IP Australia, Robyn Foster, said P&G would have to prove there was ”potential for confusion” in the consumer’s mind between the drink and the battery.
Proceedings have been suspended because the parties are engaged in litigation in the Czech Republic, which may have a bearing on proceedings here, she said.
Source: Sydney Morning Herald
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