The case was brought to Belgian justice after a competing brand, belonging to INBEV, another giant brewer, have adopted a blue-tone trade-dress similar to the tone used by Alken-Maes.
The Belgian Court concluded that, despite the mark registered by Alken-Maes and the sign used by INBEV are not identical, the high degree of similarity between packaging inevitably would lead consumers to make an association between beers, which usually It would not occur before changing the packaging by INBEV. Because of this fact, the Court of Appeals acknowledged that the blue color contained in the sign of Inbev beer maintained a distinction itself within the context and therefore could be confronted in this way, recognizing the violation of the brand of Alken-Maes.
The appeal cut decision clarifies and strengthens the scope of protection of colors as brands, echoing Belgian decisions favorable to the holders of Red Bull's color brands (Blue and Silver) and Veuve Clicquot (orange).
In Belgium and in several countries abroad, the Secondary Meaning Institute is increasingly solidifies and begins to force Brazil to review its current positioning and allow registration as widely recognized color brands in the market and consumer as being distinctive.
