A Spanish chocolate-milk carton walked into the Benelux register wearing Chocomel’s yellow. The names are not the same. The office said shoppers would not mix the brands up. The filing still died.
On 30 September 2026 the Benelux Office for Intellectual Property refused Grupo Cacaolat’s figurative mark: the word Cacaolat set against a yellow background, aimed at chocolate drinks. FrieslandCampina, owner of Chocomel, had opposed. The fight was not over the letters. It was over the shade.
Colour marks are rare. A single colour becomes a trademark only after years of spend and shelf time have trained people to treat the hue as a source. Milka purple, UPS brown, Veuve Clicquot orange. Chocomel yellow now sits in that short list in the Benelux, for chocolate milk.
BOIP started where a junior user hopes it will. It found no likelihood of confusion. The word Cacaolat is enough, the office said, that consumers will not mistake one mark for the other. That is the usual escape hatch for a lookalike: change the name, keep the get-up, argue the public can read.
Reputation closed the hatch. FrieslandCampina put in use evidence and market surveys. BOIP accepted that the specific yellow is a reputed mark for chocolate milk in the Benelux. Cacaolat used exactly that shade. On chocolate drinks, the office found, buyers will make a link. That link is an unfair advantage taken from someone else’s reputation, and it is barred even when confusion is not proved. No registration.
The office does not pull cartons off shelves. BOIP lawyer Camille Janssen said, as reported by NL Times, that what happens to the products is not the office’s call. FrieslandCampina has already made the call. A spokesperson said the ruling confirms that “Chocomel’s distinctive yellow color is inextricably linked to the product,” and that the company will ask the Spanish competitor to change the packaging and expects that request to be met. Grupo Cacaolat can still appeal. The reported window is two months from the decision date. Until then the yellow logo is a refused filing, and the cartons already on Dutch online shelves selling Spanish goods are the thing the senior user wants repainted.
This is the cheap version of a lookalike fight. Opposition, not a full infringement trial. No disgorgement figure. No injunction yet. The blood is the registration itself, and the redesign that follows if the appeal fails. Same pattern as other get-up cases already on the shelf: a chili can that borrowed the name and the colors, a clog that felt familiar at a glance. Exact copies are the rare ones. The ordinary damage is a familiar color, a cousin mascot, a one-letter shift.
The only cheap moment
Offices do not police this on their own. Absolute grounds are the examiner’s job. Relative grounds, the ones that catch a confusing or free-riding mark, are the owner’s. FrieslandCampina had to oppose. Miss that window and the junior mark registers. Opposition periods are short, typically 30 to 90 days after publication. After registration the same fight gets expensive: invalidity, injunctions, destroyed inventory, a rebrand the week the product is already in the trade.
Leave the lookalikes alone and the right thins out. Customers link the wrong carton. Expansion into the next country gets blocked by a filing you did not see. Due diligence later has to explain why a rival has been wearing your color in peace. That is how a reputed mark stops being the only yellow on the shelf.
The real copies are almost never identical. They are phonetic twins, mascot cousins, and packaging that feels familiar at a glance. Watching the register is cheaper than a roadside rebrand. That is why monitoring exists, and why the work of watching a mark sits before the opposition clock, not after the cartons are printed.
The yellow was already Chocomel’s problem before it became Cacaolat’s. The only cheap moment is before the lookalike hardens.