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Blog 16 Apr 2018

Beats beaten up?

Written by Peter Simonis
When audio lovers see the draughted letter 'b' against a contrasting background on the side of a headphone, only one manufacturer comes to mind: Beats by Dr Dre

The brand was taken over by Apple in 2014, for no less than three billion dollars. In the US alone, Apple, together with Beats, possesses nearly half of the market and leads it, leaving brands such as Bose, Sony and LG behind it. Famous names such as, David Guetta and Justin Bieber have helped to launch a new product line of the brand on the market.

Recently, the brand has had to deal with a setback in the EU. The firm Diashop from Spain recently filed a trademark application which consisted of the stylized letter ‘d’ against a red background.  By doing this, Diashop sought protection for, among other things, ‘apparatus for reproduction’. Beats filed a formal objection against the application, which makes sense in the first instance, considering the similarities between both trademarks:

Beats by Dre vs Diashop NLO Shieldmark
Beats by Dre vs Diashop

The EU trademark authority compares the marks as wel as the designated goods and rules as follows; in regard of the goods for which Diashop sought protection are identical to the goods of the older trademark of Beats. However, the question whether or not the marks are confusingly similar is not answered in favour of Beats.

The EU trademark authority confirms that both brands consist of a circle with a letter in it. Yet they say that there are also differences: the way the vertical line bends, namely with the one mark to the left (because it’s a ‘b’) and with the other mark to the right (because it’s a ‘d’). besides, the vertical line of the Beats mark until the edge of the circle. The visual differences are, according to the judgment of the trademark authority, stronger than the similarities. Even the fact that the letters ‘b’ and ‘d’ sound the same is not accepted: it is indicated that the letter ‘d’ is pronounced by pressing the tongue against the back of the teeth and the letter ‘b’ demands closed lips. Moreover, not all consumers would actually pronounce the letters but simply take it as an abstract element. Final judgment: the marks are not similar enough.

Although the price tag of Beats headphones transcends the average price, it is certainly not the same as buying a car.
Peter Simonis - Trademarks & Designs

Famous brands have a strengthened distinctive power. This makes total sense: the more famous a brand is, the earlier a consumer will think of it. It is up to the trademark owner to prove, in an opposition, that his mark has a strengthened distinctive power as a result of intensive usage.

Here, however, rules the EU trademark authority that the submitted evidence is not enough to assume that the invoked mark enjoys a strengthened distinctive power. The submitted evidence, which consisted of news articles, invoices, websites, sales numbers and more, refers mostly to the brand BEATS and not to the stylized letter ‘b’, according to the authorities. The sales numbers are named ‘impressive’ but concerned a simple table on a white sheet, without sourcing or confirmation of an accountant.

It is uncertain if this decision would hold up if the case was appealed. Although the price tag of Beats headphones transcends the average price, it is certainly not the same as buying a car. To remain within the jargon of trademark law: there will be little public attention. It is therefore not unthinkable that the target group, which is a broad one in this case, will see the white letter ‘d’ against a red brackground on audio equipment and think that the product is by Beats.   

To conclude, it is up to Beats to deliver reliable evidence that the stylized ‘b’ certainly has a strengthened distinctive power and that when those who are looking for a pair of headphones see the mark and instantly think of the brand Beats. Besides, it is uncertain whether the differences between the marks will weigh heavier than the similarities on appeal.