Alcoholic and non-alcoholic beers: An analysis of confusion risks in trademark law

The beverage market is evolving rapidly, marked by a significant rise in non-alcoholic alternatives such as alcohol-free beers, often marketed as substitutes for traditional alcoholic drinks like gin or vodka. This shift raises important trademark law questions : can a trademark registered for an alcoholic beverage prevent the registration of a similar mark covering a non-alcoholic product ? More broadly, is there a genuine risk of confusion between these product categories ?

The answer is yes, as recently confirmed by the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) in the landmark KINGSMAN case dated January 24, 2025. This ruling highlights the criteria that authorities consider when assessing the risk of confusion, moving beyond the mere alcoholic content of the product.

How case law, and in particular the EUIPO, analyzes the similarity between different products in trademark law

2.1 Product classification

Alcoholic beverages (such as gin, wine, or champagne) are generally classified under Class 33 of the Nice Classification, whereas non-alcoholic drinks (including alcohol-free beer) fall under Class 32. Traditionally, these distinct classes helped to limit confusion risks, as the products were perceived as fundamentally different.

2.2 A holistic assessment beyond Classes

However, market realities call for a broader analysis. The EUIPO evaluates product similarity by considering not only their nature but also their usage, distribution channels, points of sale, and how the average consumer perceives them.

Thus, the mere presence or absence of alcohol does not automatically eliminate the risk of confusion if the products are offered in similar or even identical contexts and target the same consumer base.

The KINGSMAN decision : A pivotal turning point

3.1 Case overview

In the KINGSMAN case (R 1426/2024-5), the applicant sought to register a trademark for non-alcoholic beers under Class 32, while an identical earlier mark existed for alcoholic beverages in Class 33 such as whisky, vodka, or gin.

3.2 Analysis of confusion risk

The EUIPO’s Fifth Board of Appeal confirmed that a likelihood of confusion exists between alcoholic (such as gin) and non-alcoholic beers. Several factors underpin this conclusion :

• These products often target the same consumer in similar social settings (bars, restaurants, supermarkets).
• They circulate through overlapping distribution channels and points of sale.
• Consumers primarily perceive these products as “beverages,” regardless of alcohol content, which can lead to confusion about their commercial origin.

3.3 Practical implications

This ruling requires heightened vigilance for trademarks in this sector :

• A trademark for a non-alcoholic beverage may be challenged based on the existence of a similar mark for an alcoholic drink, and vice versa.
• De-alcoholized beverages (such as dealcoholized wines) are also considered close to alcoholic beverages in this analysis.

Understanding consumer perception and the commercial context

4.1 Points of sale and consumption patterns

Alcoholic and non-alcoholic drinks are frequently sold side by side in the same venues (supermarkets, bars, restaurants) and via identical sales channels. This proximity increases the likelihood that consumers may confuse similar trademarks.

4.2 The role of alcohol content in perception

Even though consumers recognize the difference in alcohol content, trademark law focuses on the overall impression and commercial context, which can diminish this distinction. The average consumer does not necessarily possess detailed expertise and often relies on the visual and phonetic similarities of trademarks, as well as the purchasing environment.

Practical advice to effectively protect your trademark

5.1 Filing strategy and choice of Classes

To secure trademark protection in the beverage sector, it is advisable to file in both Classes 32 and 33. This dual coverage is crucial to protect both alcoholic and non-alcoholic beverages, especially in a market where product lines often overlap or evolve.

5.2 Monitoring and enforcement actions

Active monitoring is essential to detect promptly any filings or use of similar trademarks in related classes. This allows for swift and effective enforcement in the event of confusion risk or infringement.

Conclusion : Anticipating and managing confusion risks

The beverage market’s evolution, driven by the growing popularity of non-alcoholic alternatives, profoundly impacts the criteria for assessing confusion risks under trademark law. The KINGSMAN ruling marks a turning point by recognizing a real risk of confusion between trademarks covering alcoholic and non-alcoholic beverages.

For trademark owners and applicants, adopting a strategic, proactive, and comprehensive approach is key to effectively safeguarding brand image and rights.

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