• Alicante Abstracts

    European Court of Justice Decisions

    Absolute Grounds of Rejection 

    In the second appeal from an OHIM decision to reach the full European Court of Justice (ECJ), rather than the Court of First Instance (CFI), the Court decided that the trade mark Companyline was devoid of distinctive character (Article 7(1)(b) of the CTM Regulation) in respect of financial and insurance affairs in Class 36.

    DKV Deutsche Krankenversicherung had filed their CTM application for the mark soon after OHIM had opened. The application had been rejected progressively by the CTM Examiner, the First Board of Appeal and the CFI. In the latter case, the Court ruled that the trade mark Companyline consisted of two descriptive words which, when coupled together, simply denoted a range of services intended for companies. In the absence of any graphic or semantic modification, the sign was devoid of distinctive character.

    The ECJ confirmed the rejection of the application in the following terms:

    • Unless the evidence before the CFI is found to be distorted, that Court (CFI) has exclusive jurisdiction to establish the facts of a case and to appraise those facts. In the present case, there was nothing in the CFI’s reasoning to suggest that the evidence before them had been distorted.
    • In examining whether two generic terms, in this case company and line, coupled together possess any additional characteristic such as to confer on the sign, taken as a whole, a distinctive character, the CFI did not err in law in its interpretation of Article 7(1)(b).

    Ten further appeals from OHIM refusals of trade marks on absolute grounds have also recently been decided by the CFI. In the first case, the trade mark was ‘SAT.2 for a wide variety of goods and services including certain broadcasting services in Class 38 and certain television entertainment services in Class 41. The mark was rejected by both the CTM Examiner and the Second Board of Appeal, in the latter case on the basis of Articles 7(1)(b) and 7(1)(c) of the Regulation. SAT was said to be an accepted abbreviation for satellite and therefore the mark, taken as a whole, would be seen as an obvious short form of “second satellite channel”.

    The applicant (SAT.1 SatellitenFernsehen) appealed to the CFI who confirmed the rejection of the mark, but in respect of only some of the services claimed. In the Court’s view:

    • A minimum degree of distinctive character suffices for the absolute ground of refusal set out in Article 7(1)(b) not to apply.
    • The distinctive character of a trade mark can be appraised only, firstly, by reference to the goods and services claimed and, secondly, by reference to the way it was perceived by the relevant public which, in the present case, is the average consumer who purchases products that are available for general consumption.
    • In relation to services which have an immediate connection with the broadcasting of programmes, the mark consisted exclusively of elements which were at least capable of being commonly used in that trade. It was therefore devoid of distinctive character for such services and should be rejected under Article 7(1)(b).
    • In relation to all of the other services claimed, the element ‘SAT designated no characteristic likely to be taken into account by the relevant public when making its choice of product. The mark should therefore be accepted for these non-broadcasting services.
    • Since neither ‘SAT.2 nor ‘second satellite channel designated a characteristic of any of the services claimed by the applicant, the mark, when considered as a whole, did not offend Article 7(1)(c) of the CTM Regulation.

    The second appeal to the CFI involved the mark UltraPlus in relation to plastic ovenware for use in microwave, convection and conventional ovens in Class 21. The mark had been rejected by the CTM Examiner and the First Board of Appeal under Articles 7(1)(b) and 7(1)(c) on the basis that potential consumers would perceive it as merely expressing a strong claim by the manufacturer regarding the quality of the goods.

    The CFI disagreed and allowed the application to proceed. According to the Court:

    • A combination of the prefix ultra- and an adjective which immediately informed the consumer about a characteristic of the product would probably be unregistrable under Article 7(1)(c).
    • However, in the present case, the sign merely alluded to the qualities of the ovenware. Ultraplus did not indicate or single out any particular characteristic of the products claimed, it was therefore too vague and indeterminate to be viewed as descriptive. It followed that the rejection under Article 7(1)(c) was unjustified.
    • The fact that a sign is not descriptive does not automatically mean that it is distinctive. However, in order to qualify as distinctive, a sign need not be either original or fanciful.
    • The mark consisted of two words that were usually used separately to emphasise positive features of a product. They were not normally used together and therefore the combination constituted a syntactically unusual juxtaposition. The mark was therefore not devoid of distinctive character and did not infringe Article 7(1)(b).

    The third CFI appeal related to two CTM applications for, respectively, the trade marks Kit Pro and Kit Super Pro covering parts for repairing drum brakes in land vehicles in Class 12. Both applications had been rejected by OHIM under Articles 7(1)(b) and 7(1)(c). The CFI maintained the objection under Article 7(1)(b) and, having done so, did not go on to consider Article 7(1)(c). In the Court’s view all of the elements of the two marks lacked distinctiveness in relation to the claimed goods. Further, there was no evidence that either combination was greater than the sum of its individual parts. The appearance of either Pro or Super Pro after a word such as Kit was not unusual and, in fact, was quite normal when advertising products.

    In the fourth appeal to the CFI, the mark at issue was the slogan Real People, Real Solutions. The applicant, Sykes Enterprises, had sought to register the mark in respect of various information technology related services in Classes 35, 37 and 42. The mark had been rejected by OHIM as non-distinctive under Article 7(1)(b). The Board of Appeal found that the mark was a slogan which was commonly used in the IT sector and would therefore be seen by the relevant public as a mere promotional term, rather than as an indication of the origin of the services.

    The applicant appealed and the CFI rejected the appeal. The Court commented as follows:

    • Registration of a trade mark which consists of a sign or indication that is also used as an advertising slogan, an indication of origin or an incitement to purchase the goods or services claimed is not excluded simply by virtue of such use.
    • The examples identified by the Board of Appeal to illustrate the widespread use of the sign in advertising would be discounted because (i) they were not dated and (ii) they could have taken place with the applicants consent.
    • The meaning of the sign was immediately apparent, however. It signified that the applicant’s services involved the provision of pragmatic solutions which had been devised by and for real people.
    • Further, there was nothing about the sign Real People, Real Solutions that might enable the relevant public to memorise the sign easily and instantly as a distinctive trade mark for the services designated. It had a promotional meaning, but nothing more.
    • It followed that the sign would be perceived by the relevant public primarily as a promotional slogan, based on its inherent meaning, rather than as a trade mark. The rejection under Article 7(1)(b) would therefore be maintained.

    The fifth CFI appeal involved the stylised mark BioID® . for goods and services in Classes 9, 38 and 42, all of which were limited to use in relation to the computer aided identification of live organisms by reference to their biometric characteristics. Once again, OHIM rejected the application, the Board of Appeal stating that the sign constituted a shortened form of the words “biometric identification” and that the graphic elements were minimal and inadequate to endow the sign with any distinctive character. The applicant (BioID AG) appealed to the CFI.

    The CFI maintained the objection raised under Article 7(1)(b) of the CTM Regulation. The Court agreed with the Board of Appeal’s analysis of the sign, given the nature of the goods and services claimed and the relevant public that would purchase such products. They also made the following, further comments:

    • A compound mark cannot fall under Article 7(1)(b), if one of its composite elements is distinctive in respect of the goods and services claimed. That is true even if the sole distinctive element is not dominant. It is therefore not permissible to disregard an element of a compound mark on the basis that its importance is minimal in comparison with that of other elements. The distinctive character of a compound mark must be assessed in the light of all the elements of which it is composed.
    • If a compound mark is composed only of elements that are individually devoid of distinctive character in respect of the goods and services claimed, the whole mark is also likely to be commonly used in trade to present those goods and services. An exception to this rule would be if there were concrete evidence that the whole mark were greater than the sum of its parts.

    (It should be noted that a later CTM application for Bioid (letters) in respect of broadly claimed goods and services (e.g. computer software) has now been accepted).

    In the sixth appeal, the mark before the CFI was Ecopy in respect of “Software discs and associated apparatus for enabling the scanning and electronic distribution of documents over computer networks” in Class 9. The mark was rejected by OHIM under Articles 7(1)(b) and (c) on the basis that Ecopy would clearly be seen as meaning “electronic copying”. The applicant had also filed evidence of acquired distinctiveness, much of which post-dated the CTM filing date. According to the Board, this evidence failed to overcome the objections raised.

    The applicant (eCopy Inc) appealed, primarily on the basis that the evidence of use after the filing date should be taken into account. Perhaps not surprisingly, the CFI rejected the appeal. The Court confirmed that, in order to be considered in respect of acquired distinctiveness, use of the mark must have taken place before the CTM filing date. The CFI also rejected an attempt by the applicant to introduce further evidence of use for the first time at the CFI appeal stage.

    The next four appeals to the CFI dealt with CTM applications for more abstract trade marks. The first application, CTM773630 owned by KWS Saat, was for the colour orange filed in respect of inter alia seed treating installations in Classes 7 and 11, seeds in Class 31 and seed cultivation related services in Class 42. The application had been rejected in its entirety by both the CTM Examiner and the Second Board of Appeal under Article 7(1)(b). On further appeal to the CFI, the Court held as follows:

    • Seeds were often artificially coloured, in some cases to indicate that they had been treated chemically or in some other way. Given the general use of colours for technical purposes in the seed sector, the general public would not immediately disregard the possibility that the use of the orange colour was for such a technical purpose. In the absence of education of the public as to the true meaning of the colour, the relevant public would not infer that the orange colour indicated the commercial origin of the seeds.
    • Agricultural machinery of the type claimed in Classes 7 and 11 was often painted orange. The colour would therefore be seen as the painted finish to be expected for such goods rather than an indication of origin.
    • A colour does not attach to the service itself since, by its very nature, a service has no colour. Further, a colour does not confer any substantive value to a service. The relevant public can therefore distinguish between use of a colour as a mere decoration and its use as an indication of commercial origin. In the absence, for example, of any words, the general public is able to determine at once whether the colour used in conjunction with the services is the result of an arbitrary choice made by the company supplying those services.
    • Given that there was no evidence that the orange colour served any function other than as an indicator of origin in respect of the services claimed, the colour was easily and instantly memorable to the relevant public as a distinctive sign. The fact that a colour mark lacks communicative power, because it does not by itself enable the applicant to be identified as the supplier of the services concerned without additional graphic features, did not affect its distinctive character. It was not necessary for the sign to convey exact information as to the identity of the supplier of the services. It was sufficient that the colour mark enabled the public concerned to distinguish between the applicant’s services and those of an unconnected company.
    • Since the colour claimed by the applicant was a specific shade, its registration would not unduly restrict the commercial activities of his competitors.
    • It followed that the application should be rejected under Article 7(1)(b) in respect of the class 7, 11 and 31 goods claimed but should be accepted in respect of the Class 42 services claimed.

    The second application (CTM459149) was for a combination of two colours, grey and green, and covered gardening equipment, including lawn mowers, in Class 7 (see www.viking-garden.com). Once again the application was rejected as being devoid of distinctive character (Article 7(1)(b)) by both the CTM Examiner and the First Board of Appeal. The applicant, Viking GmbH, appealed to the CFI. The Court maintained the objection in terms that were very similar to their rejection of the Class 7 and 11 goods in the orange colour case referred to above. In the Court’s view, the grey/green combination would again be seen merely as an aspect of the finish of the goods claimed, both colours being in common use for such purposes in relation to gardening products. The Court also criticised the particular form of mark applied for, which was two juxtaposed coloured rectangles, since this did not reflect the colours as they were used in practice.

    The next application (CTM811281) was for a speckled, opaque design filed in respect of glass and certain products, such as showers, containing the glass (Classes 11, 19 and 21). The application was again rejected by OHIM as non-distinctive under Article 7(1)(b). In this case, the applicant put forward evidence of acquired distinctiveness but, even in the face of this evidence, the objection was maintained.

    On further appeal, the CFI ruled as follows:

    • A design applied to the surface of goods may have a number of functions including technical, decorative or indicating the trade origin of the goods. If the target market perceives the sign as an indication of trade origin, the fact that it also serves other purposes has no bearing on its distinctiveness.
    • The target market was the average consumer not just professionals in the field of construction.
    • The sign claimed would be seen primarily as a technical means of rendering the glass opaque.
    • The relevant consumer was not used to regarding designs applied to the surface of glass as an indication of trade origin. Further, the sign in question was not instantly recognisable as such an origin indicator but rather as a functional component.
    • The Board of Appeal was wrong to reject the applicant’s evidence of acquired distinctiveness on new grounds upon which the applicant was given no opportunity to comment.
    • The application would therefore be rejected as devoid of distinctive character but would be remitted to OHIM for further consideration of the distinctiveness claimed to have been acquired through use.

    The final application was for the shape of a soap (CTM230680). This application had already been the subject of an appeal to the CFI in 1999 (Procter & Gamble v OHIM, T-122/99). In a decision which contained a veritable comedy of errors by all concerned, the Court had remitted the application to OHIM for further consideration.

    Having considered the matter further, OHIM again rejected the soap shape as non-distinctive (Article 7(1)(b)). The applicant appealed, but this time the CFI agreed with the findings of the Board of Appeal. In the Court’s view, the presence of concave profiles did not significantly affect the outward appearance of the soap and therefore could not be accepted as constituting a perceptible difference to normal soap shapes. Furthermore, even if the concave shape of the soap did hold the consumer’s attention, he would not immediately perceive it as an indication of trade origin. According to the Court, convex or concave profiles were features which would primarily be interpreted as either a functional feature making the soap easier to grip or as an aesthetic finish.

     

    Comment

    It is very difficult to reconcile the ECJ’s ruling on the trade mark Companyline with the same Court’s acceptance of the trade mark Baby-Dry (for nappies). Further, it is not at all clear why marks such as Kit Pro and Super Kit Pro, which really are syntactically unusual juxtapositions, stand rejected when earlier CFI decisions have accepted marks such as Doublemint, Easybank and New Born Baby as distinctive for confectionery, banking services and dolls respectively. This somewhat chaotic situation means that the level of distinctiveness that a mark needs to reach to be accepted as registrable by the CFI/ECJ (and therefore by OHIM) remains difficult to gauge. When considering the registrability of such a borderline mark at OHIM therefore, the advice must remain the same as it has been since the day OHIM opened for business. File an application, because you never know what the final outcome of the examination will be. This is clearly an unsatisfactory situation, but the writer does not see it improving in the foreseeable future.

    As far as the protection of colour trade marks is concerned, the KWS Saat (orange colour) case should be contrasted with the recent Advocate General’s opinion in the Libertel case. In that reference to the ECJ (Libertel Groep v Benelux Trade Mark Office), the point at issue was the registrability of colour marks per se, in particular in respect of telecommunications services. The Benelux Office had rejected Libertel’s application to register the colour orange for such services, on the basis that their (Libertel’s) evidence of acquired distinctiveness was not adequate to overturn the original objection. Libertel’s appeal finally reached the Supreme Court who put a number of questions to the ECJ including the fundamental question, can colour per se be registered as a trade mark? Even though all of the parties represented before the ECJ accepted that colour per se could be registered, the Advocate General disagreed. In his view, the EU Trade Mark Harmonisation Directive (Article 2) did not permit the registration of colour as a trade mark unless it had some form or outline. On this basis, a colour per se would never be registrable for services and would only be registrable in respect of goods in the precise manner in which it was applied to the goods. This cannot be correct and it is sincerely to be hoped that the ECJ, when reaching its decision, will ignore the Advocate General’s opinion, at least on this point. If there is any doubt on this issue, it is recommended that the ECJ conducts market surveys on the link between, for example, the colour purple and chocolate in the UK and the colour magenta and telecommunication services in Germany. If such surveys did not establish an overwhelming response of Cadburys in the former case and Deutsche Telekom in the latter case, the writer would be astonished.

     

    Relative Grounds of Rejection

    The first CFI appeals from OHIM opposition decisions have recently been published. It will be recalled that oppositions before OHIM can only be brought on the basis of relative grounds for refusal.

    The first case (Claudia Oberhauser v Petit Liberto) involved a CTM application for the trade mark Fifties covering denim clothing in class 25. The opposition was based on a Spanish trade mark registration for Miss Fifties & Device in respect of inter alia clothing. Before OHIM’s Opposition Division and Appeal Board, the opponent succeeded. In the Appeal Board’s view the marks were visually and phonetically dissimilar, but conceptually similar. They found that the dominant feature of the opponent’s mark was the phrase Miss Fifties. This would be the aspect that was remembered and understood, the understanding being enhanced by the presence of a young woman in the earlier mark. This, according to the Board, would lead the average Spanish purchaser of clothing to think that Fifties denim clothing was sold by the same concern as that responsible for Miss Fifties clothing.

    The applicant appealed to the CFI who dismissed the appeal. The Court found that:

    • Because of the visual complexity of the earlier mark it could not be viewed as visually similar to the word mark Fifties.
    • Phonetically and conceptually the dominant component of the earlier mark was Miss Fifties, this incorporated the whole of the CTM mark. The average Spanish consumer might not understand the meaning of the word Fifties but would understand Miss. They would therefore, at the very least, see Miss Fifties simply as the feminine variant of Fifties. It could be concluded from this that there was significant phonetic and conceptual similarity.
    • On this basis, a likelihood of confusion between the earlier Spanish mark and the later CTM could be assumed. Since the earlier and the later goods were identical, the opposition succeeded.

    In the second CFI appeal dealing with relative grounds for refusal (Matratzen Concord v Hukla Germany), the mark applied for was Matratzen Markt Concord & Device (CTM 395632), with Matratzen the dominant feature. The goods claimed were in classes 10, 20 and 24 and included beds for medical purposes (class 10), beds (class 20) and bed linen (class 24). The CTM application was opposed on the basis of a Spanish registration for the trade mark Matratzen covering class 20 goods including beds.

    The Opposition Division, following the Canon/Cannon case, assessed the likelihood of confusion globally taking into account all of the relevant factors. These were that:

    • The overall impression of the two marks, based on visual, phonetic and conceptual comparisons, was that they were “only partly similar”, and
    • The earlier class 20 goods covered by the Spanish registration were slightly similar to the class 10 goods, identical or very similar to the class 20 goods and similar to the class 24 goods, bearing in mind the type of consumers, trade outlets, etc.

    On this basis, the opposition succeeded in relation to the class 20 and class 24 goods, but failed in relation to the class 10 goods.

    The applicant appealed to the Board of Appeal in respect of the rejection of goods in classes 20 and 24. The opponent also appealed in relation to the acceptance of the CTM application for class 10 goods. The Board of Appeal allowed the opponent’s appeal and dismissed that of the applicant. This led to the total rejection of the application.

    The applicant filed a further appeal to the CFI based primarily on their argument that the two marks were not confusingly similar, given the borderline distinctiveness of the word Matratzen (German for Mattresses). The CFI ruled in favour of the opponent in the following terms:

    • The relevant public was the average Spanish consumer. In view of this, the word Matratzen was not descriptive of the goods claimed, since it had no meaning in Spanish. The equivalent Spanish word was Colchón which bore no resemblance to Matratzen.
    • Since the word Matratzen did not resemble any Spanish word and would be seen as unusual by Spanish speakers, it was likely to be seen as the dominant and most memorable element in the CTM.
    • It followed that the CTM and the earlier Spanish mark were visually and phonetically similar. Given the identity/similarity of the goods in question, there existed a likelihood of confusion (Article 8(1)(b)) in respect of all the CTM goods claimed.

    In the third CFI appeal dealing with relative grounds (Institut für Lernsysteme v ELS Educational Services), the CTM application was for the mark ELS in respect of goods and services in classes 16, 35 and 41, all relating to the teaching of languages. The opposition was based on a German trade mark registration for the stylised mark iLS covering educational products in classes 9, 16 and 41. The opposition was rejected by both the Opposition Division and the Appeal Board on the basis that the two marks and the two sets of goods/services were distinguishable. During the opposition, the opponent had been asked to prove use of his mark in Germany. OHIM ruled that use in relation to only the “development and running of correspondence courses” had been established.

    The opponent appealed to the Court of First Instance. The CFI ruled that the two marks were visually and (to the relevant German public) phonetically similar (neither had any conceptual meaning) and remitted the case to OHIM for a decision based on this finding. The Court made the following comments:

    • If an opponent in CTM opposition proceedings has already proved use of his mark in the relevant country in earlier proceedings, then he may rely on these already filed documents in the later opposition. It is not necessary to re-file the documents.
    • When ruling on the similarity (or otherwise) of goods and services, the Board of Appeal must give reasons. If it does not do so, then the decision should be annulled.
    • Since two of the three letters were identical and in the same sequence, the difference in a single letter did not constitute a significant visual difference.

    The fourth OHIM opposition appealed to the CFI (Mystery Drinks v Karlsberg Brauerei), involved beverages in class 32. The CTM application was for the trade mark Mystery (stylised) and claimed, amongst other goods, “non-alcoholic beer”. This was opposed by Karlsberg on the basis of their German trade mark registration for Mixery covering “beers and beverages containing beers”.

    The CTM Opposition Division rejected the opposition but the Third Board of Appeal reversed this decision in relation to the class 32 goods claimed. In the Board’s view:

    • The opponent’s mark (Mixery) had, on the basis of the evidence produced by the opponent, a high degree of distinctiveness,
    • The two marks were visually dissimilar but phonetically similar. Although there were also conceptual dissimilarities, these were not significant,
    • The opponent’s goods were similar to the class 32 goods of the CTM application, and
    • In view of these factors, there was a likelihood of confusion within the meaning of Article 8(1)(b) of the Regulation. On this basis, the appeal was allowed and the opposition succeeded in respect of the CTM’s class 32 goods.

    Perhaps not surprisingly, the CTM applicant appealed to the CFI. Rather more surprisingly, the Court agreed with the Board of Appeal’s analysis of the two marks (as well as the two sets of class 32 goods) and dismissed the appeal. They made these findings, even though they also found that the opponent’s mark did not have the high degree of distinctiveness attributed to it by the Board of Appeal.

    The fifth CFI appeal from an OHIM opposition decision (K.K. Fernandes v R.J. Harrison) involved a CTM application for Hiwatt for “amplifier and speaker boxes and electrical sound effects units” in class 9. The application was published on 16 March 1998 and opposed by Fernandes on the basis of earlier French, German and Italian trade mark rights for the identical mark registered in respect of identical or very similar goods. All of the opponent’s trade mark rights were over 5 years old at the date of publication of the CTM application. The applicant therefore asked the opponent to prove use of his mark in France, Germany and Italy (Article 43 of the Regulation).

    The opponent filed the following documents:

    • An invoice dated 2 December 1998 showing shipment of Hiwatt goods from South Korea to Italy,
    • Excerpts from an undated English language catalogue showing a Hiwatt amplifier and mentioning an address in Japan,
    • Excerpts from programmes for trade fairs held in Frankfurt in 1999 and 2000,
    • Excerpts from the official catalogue for a trade fair held in Frankfurt in 1997. This catalogue featured the opponent and a related company (Hiwatt Amplification International) as exhibitors,
    • An English language 1997 catalogue featuring Hiwatt amplifiers and mentioning an address in the USA.

    The opposition was rejected on the basis that the opponent had not established use of his mark in any of France, Germany or Italy. The Board of Appeal agreed with this analysis and the opponent appealed to the CFI. The Court dismissed the appeal in the following terms:

    • Genuine use not only excluded token use, but also meant that the mark must be used in a substantial part of the territory where it is registered.
    • The opponent’s documents showed that Hiwatt amplifiers were manufactured in the USA but not that they were sold in Germany (or anywhere else in the EU). Further, the presence of the opponent at a trade fair in Germany, did not prove that their Hiwatt products were available at that trade fair. Finally, use of the sign as a company name (at a 1997 trade fair in Germany) did not constitute use (of Hiwatt) as a trade mark.

      At best, the opponent’s evidence showed a possible intention to enter the German market. This was not enough. It was necessary to show consistent, stable and real use of Hiwatt for the opponent to succeed.
    • The CFI cannot issue directions to OHIM. It is for the Office to draw appropriate inferences from the operative part of the Court’s judgement and the grounds on which it is based.

    Comment

    Since the South Cone decision in the UK (2003 RPC 101), it has become extremely difficult to overturn a decision made by the UK Trade Mark Office in opposition proceedings. Both the Appointed Person and the High Court confirm the original decision in the vast majority of cases and, in doing so, show an almost complete faith in the expertise of the UK Office’s Hearing Officers.

    It would appear, from the ELS decision at least, that they will do things differently in Europe. Of course, this introduces a degree of uncertainty into the proceedings, but it does mean that there is some justification in making an appeal to the CFI. At present, it is very difficult to justify an appeal from a Trade Mark Office decision in the UK.

    The Hiwatt decision merely confirms what we already knew. The level of proof required to establish use of a mark in OHIM opposition proceedings is extremely high. Essentially, if you don’t have invoices which feature the opponent’s mark and the place, date and amount of the sale during the relevant five year period, you are in trouble. How, in these circumstances, the use of a device mark or a combination of a word and a device mark can be proved has never been adequately explained by OHIM.

    Finally, what can one say about the Mystery drinks decision except that the outcome is a complete Mixery? In the writer’s view, only the German equivalent of the proverbial English moron in a hurry would confuse a Mystery beverage with a Mixery beer.