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<\/a><\/figure>\n\n\n\nIn January and February 2025, Yoplait registered four Benelux trademarks, including one that consisted solely of a figurative mark without any word element (dark blue background, snow-capped mountain on the left, slanted spoon on the right).<\/p>\n\n\n\n In November 2024, Danone launched its new skyr packaging, also in dark blue, featuring a mountain landscape and a Viking with a shield. <\/p>\n\n\n\n Yoplait served Danone with a notice of default and subsequently sued it in the injunctive relief court for trademark infringement, unfair trade practices, and unlawful comparative advertising. In a counterclaim, Danone sought the invalidation of the pure figurative mark on the grounds of lack of distinctiveness.<\/p>\n\n\n\n The presiding judge first dismissed the counterclaim for annulment. A combination of elements that are not distinctive in and of themselves (dark blue, snow-capped mountain, spoon) may nevertheless be perceived as an indication of origin when their arrangement, considered as a whole, confers distinctiveness on the mark. Danone provided examples showing that each element individually appears commonly on dairy packaging, but none of them combined the three elements in the same arrangement as Yoplait. Nor did Danone prove that the average consumer could not perceive the mark as a trademark. The figurative mark was therefore declared valid.<\/p>\n\n\n\n The chair then assessed the likelihood of confusion pursuant to Article 2.20, paragraph 2, subparagraph b BTIP<\/a>, by comparing each of the four cited trademarks separately with the Danone packaging. Although the goods are identical and are sold in the same manner in supermarkets, the presiding judge ruled that there was no likelihood of confusion among the general public with an average level of attention. After all, the visual similarities concerned only non-distinctive or weakly distinctive elements (the word \u201cskyr,\u201d the colors dark blue and white). There was no phonetic similarity, and the conceptual similarity was minimal. The highly distinctive word marks \u201cYoplait\u201d and \u201cDanone,\u201d prominently displayed on the packaging, were sufficient to rule out any likelihood of confusion. A market survey submitted by Yoplait was not convincing: it compared products rather than brands, and 61 percent of respondents did not quite confuse the packaging.<\/p>\n\n\n\n For the same reasons, the presiding judge dismissed the claim regarding misleading commercial practices. The similarity in the dark blue color alone was not sufficient to alter the consumer\u2019s economic behavior. Differences in the word mark, packaging type, flavors, and price sufficiently distinguished the products.<\/p>\n\n\n\n The claim regarding comparative advertising was, however, partially upheld. The statements \u201cNo. 1 Taste\u201d and \u201c#1: Belgium\u2019s best skyr\u201d constitute comparative advertising within the meaning of Art. VI.17, 3\u00b0 Code of Economic Law<\/a>. While taste is subjective, it can serve as a valid criterion for comparison if it is objectified through reliable methods. The initial taste test was conducted primarily in the Netherlands, with only ten Belgian respondents, and was therefore not objective. A later test involving 240 Belgian consumers was sufficiently representative. Nevertheless, the chairperson banned the advertisement because the packaging and promotional materials still referred to the first, insufficiently objective test, whereas the comparison must be verifiable by the consumer. Danone Belux was given 45 days to amend the reference, under penalty of a daily fine of 1,000 euros, up to a maximum of 50,000 euros.<\/p>\n\n\n\n The ruling is a textbook example of the two-stage model for assessing the likelihood of confusion. In the first stage, the signs are compared visually, phonetically, and conceptually, based on their intrinsic qualities. In the second phase, an overall assessment is conducted, taking into account, among other things, the distinctiveness of the elements. The core of the reasoning is that similarity in non-distinctive or descriptive elements does not give rise to a likelihood of confusion: the similarity lies in the word \u201cskyr\u201d (which is descriptive of the product) and in colors that are widely used in the dairy sector.<\/p>\n\n\n\n<\/a><\/figure>\n\n\n\n<\/a><\/figure>\n\n\n\nThe decision<\/h2>\n\n\n\n
Legal analysis and interpretation<\/h2>\n\n\n\n
Weak visual elements are offset by a strong word mark<\/h3>\n\n\n\n