list of contributors - GALA

(product of defendant), place their respective products in a shelf, while a
voice in off says:
- “Some colas offer quality” (the image of a bottle of product A is
shown).
- “Others offer best price” (the image of another product is shown).
- “Some offer quality, others low price” (image of the two delivery men
fighting).
- “Quality, low price, quality, low price” (image of the bottle showing
product A and the bottle of another product).
- “Do not fight! If you want quality at the best price, drink B” (product
of defendant) (image showing a bottle of product B).
- “The beverage with the flavor liked by all” (image showing a man and
a woman, drinking product B).
- “B, a hundred percent Peruvian”.
- “Drink B, quality with the best price” (image showing three
presentations of product B).
Claimant alleged that the advertisement was likely to produce confusion
with respect to the entrepreneurial source of defendant’s product, provided
that the bottles shared a same design, both bottles contained a yellow color
liquid, and the labels identifying both products had equal color.
Claimant alleged, also, that defendant was taking advantage of claimant’s
commercial reputation in the market, leading consumers to believe that
product B was being commercialized by claimant’s company. Claimant
alleged that the trademark identifying product B reproduced the name of the
founder of a company related to his.
The Commission for Repression of Unfair Competition resolved the claim of
confusion reiterating what had been resolved by the Trademark Office in an
infringement action filed by claimant against defendant, in the sense that the
mark used by defendant was not likely to produce consumer confusion as
concerning the entrepreneurial source of defendant’s products. According to
the Commission, the ads presented products A and B in a context of
confrontation, reason why a reasonable consumer should conduct an integral
(and superficial) analysis of the products, not being led to confusion.
Resolving on the allegation of undue exploitation of claimant’s commercial
reputation, the Commission indicated that in cases of undue exploitation of
others’ reputation, the infringer seeks to establish a relation between him and
his competitors, with the purpose of taking advantage of the prestige or
reputation obtained by such other competitors in the market.
The Commission found that in the case under analysis, it had been
determined that the defendant had not generated a risk of confusion by
presenting product B in the ad, and that it is reasonable to conclude that the
defendant’s ad did not purport to take advantage of the prestige of the
claimant in the market, but on the contrary, sought to confront his and
claimant’s products.
The Commission dismissed the infringement action.