Existing case law had long supported the similarity between beer in class 32 and alcoholic beverages in class 33. However, a recent shift in case law must now be taken into account when assessing oppositions against class 33 trademarks at EUIPO based on earlier marks covering beer, even though both categories consist of drinks containing alcohol.
In its decision of October 9, 2025 in opposition no. B 3224720 LUPIA vs OUPIA, the European Union Intellectual Property Office (EUIPO) confirmed a different approach in its trademark practice in the beverages sector. In that decision, the Office concluded that beer is different from certain alcoholic beverages in class 33 of the Nice classification. This decision has significant implications for the owners of beer trademarks that are considering the possibility of challenging trademark applications covering spirits.
In said case, the Opposition Division defined the contested goods in class 33 as strong alcoholic drinks with a minimum alcohol content of 35%, schnapps (defined as any strong spirit or flavored liqueur) and non-carbonated spirits such as brandy, rum, whisky, or gin.
Although the opponent argued that these goods and beer are similar because they share the same consumers, nature and commercial area and even cited prior decisions by the Office which had found beer and spirits similar, in this instance the Opposition Division rejected these arguments. The Office based its decision on the significant differences between beer and distilled spirits in terms of ingredients, production methods, colors, smell, taste and alcohol content. According to the decision, these goods do not belong to the same family of alcoholic beverages and it is highly unlikely that the relevant public would believe that the same undertaking would produce and market these different categories of alcoholic beverages.
EUIPO concluded that the fact that beer and spirits are aimed at the same adult consumers and that they are both alcoholic beverages, is not sufficient to establish similarity between those goods.
A particularly relevant aspect of this decision was EUIPO’s express recognition of a change in its administrative practice. The Opposition Division noted that although the Office decisions cited by the opponent were from 2024, since then the Division’s practice has changed. Indeed, the decision stated: “However, since then the Opposition Division’s practice with respect to the goods in question has been updated in accordance with the above cited case-law and the outcome in the present decision is in line with the current practice, as reflected in more recent decisions (e.g. 20/02/2025, B 3 215 565, 01/08/2025, B 3 225 115, 30/06/2025, B 3 200 789)”.
The relevance of this ruling by EUIPO transcends this particular case. This shift in case law must be taken into account when assessing future oppositions against class 33 trademarks at EUIPO. For example, according to EUIPO’s Similarity tool, beer and rum are considered different, whereas beer and wine display a low degree of similarity.
Consequently, each beverage in class 33 will have to be analyzed individually in terms of its degree of similarity with beer, since they will not always be considered similar. Indeed, the degree of similarity will vary depending on alcoholic strength and production method.
It is important to note that, for now, the situation at the Spanish Patents and Trademarks Office (OEPM) does not appear to have undergone the same change. Therefore, owners of beer trademarks will need to adapt their protection and defense strategies to this new landscape at EU level, bearing in mind that case law may evolve differently in each jurisdiction.
