What Aperol v. Aperbitter teaches us about likelihood of confusion

Consumers are drinking more alcohol-free products. That much is clear. Yet some spirits brands continue to hold a particularly strong position. When the weather gets warmer, terraces fill up again and aperitif occasions return. For many consumers, that moment is closely associated with Aperol.

Aperol is a clear example of a brand that remains strong in its category. Commercially strong, but also legally resilient. That became visible again in the recent Aperol v. Aperbitter case, in which Davide Campari Milano opposed the APERBITTER trademark application filed by the Italian company Distillati Group.

The case turns on a simple but strategically important question: when does a new trademark come legally too close to an existing brand?

How likelihood of confusion is assessed

Trademark protection is largely concerned with preventing likelihood of confusion among consumers. To assess that risk, the signs are compared visually, phonetically and conceptually. The assessment also takes into account the goods or services involved, the relevant public and the distinctive character of the earlier mark.

That assessment is not limited to the full trademark as one indivisible whole. Consumers may break a name down into recognisable elements, especially when certain parts have a meaning or clearly refer to the product category.

The first part of a trademark often receives particular attention. Consumers read from left to right and usually register the beginning of a name before what follows. That does not mean the first element is always decisive, but it can carry significant weight in the assessment of likelihood of confusion.

The question is also whether an element is descriptive, suggestive or distinctive. A descriptive element will usually be less helpful in identifying the commercial origin of a product. A distinctive element does that more strongly. That distinction helps determine how much weight a specific name element receives when two marks are compared.

Aperol v. Aperbitter shows that likelihood of confusion does not depend only on the full trademark. The first part of a sign, the descriptive value of other elements and the reputation of the earlier mark can all influence the assessment.

For naming and brand development, this is a critical starting point. A name may appear logically constructed and still become legally vulnerable once its individual elements are assessed from the consumer’s perspective.

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The facts in Aperol v. Aperbitter

In 2024, Davide Campari Milano filed oppositions against the Italian and European trademark applications for the word mark APERBITTER, filed by the Italian company Distillati Group. The applications covered alcoholic beverages in Class 33.

Campari relied on several APEROL trademark registrations and on the mark THE BITTER NOTE. According to Campari, there was likelihood of confusion because the element APER appears in full at the beginning of APERBITTER. APEROL also starts with APER.

Campari argued that both signs are Italian invented words which, in the context of alcoholic beverages, may refer to an aperitif. According to Campari, that similarity was reinforced by the reputation and distinctive character of APEROL.

Campari also argued that consumers could perceive APERBITTER as a variant within the APEROL family of marks, comparable to APEROL SPRITZ. That point matters because likelihood of confusion is not limited to consumers mistaking one product for another. It can also arise when consumers assume an economic or commercial connection between two companies.

Campari also referred to the context in which alcoholic beverages are often ordered, including nightclubs or busy hospitality environments. That argument was not decisive in the assessment, but it does show why phonetic similarity can be relevant in this category.

Distillati Group argued that consumers would see APER as a reference to aperitivo or to the English word aperitif. BITTER, in their view, simply referred to a bitter drink. APER and BITTER would therefore be descriptive or weak when assessed separately, while only the combination APERBITTER would function as a distinctive mark.

Why APERBITTER came legally close to APEROL

The EUIPO only partly followed that reasoning.

The element BITTER was considered descriptive for the goods concerned and had no distinctive value for the relevant public. In the context of alcoholic beverages, that is understandable. BITTER refers to a taste profile or type of drink and therefore does little to help consumers identify the commercial origin of the product.

As a result, BITTER carried less weight in the comparison between the marks. The EUIPO also took into account that longer trademarks may be shortened, especially when one part is descriptive.

The assessment therefore shifted significantly towards APER versus APEROL.

The argument that the relevant public would understand APER as an abbreviation of aperitif was rejected. According to the EUIPO, APER is too far removed from the English word and is not commonly used by the relevant public as an abbreviation of aperitif.

APER therefore remained a relevant element in the comparison. Visually and phonetically, the signs were considered similar to at least an average degree. Conceptually, there was no clear similarity, but that did not remove the risk of confusion.

The possible perception of APERBITTER as a sub-brand or variant within the APEROL family of marks also played a role. The EUIPO concluded that there was likelihood of confusion between the marks. Campari also succeeded at national level in Italy. Appeal proceedings are currently pending against both decisions.

What this case means for naming

Aperol v. Aperbitter shows how narrow the legal assessment of a trademark can become. What may seem to the applicant like a logical combination of suggestive elements can still come too close to an existing brand for part of the relevant public.

That is particularly relevant in categories where many names rely on the same semantic fields. In alcoholic beverages, references to aperitifs, bitterness, flavour, origin or usage occasions are quickly made. Precisely for that reason, the available naming space becomes smaller.

A name that sounds logical is not automatically safe. The legal question is not simply whether the name has a meaning, but whether the relevant public will understand that meaning in the same way. If an element is not perceived as descriptive, it may still carry distinctive weight in the comparison with earlier marks.

When developing a new name, brand protection should therefore not begin after the creative decision has been made. It helps determine which names are realistically usable and which choices may create risk later.

The lesson from Aperol v. Aperbitter

The lesson from this case is clear. A mark that appears to be composed of descriptive or suggestive elements can still infringe earlier rights. Much depends on how the relevant public understands those elements, which part of the name remains memorable and how strong the earlier mark is.

When developing a new name, a first creative or linguistic assessment is not enough. A trademark also needs to be assessed legally for distinctiveness, availability and defensibility.

Aperol v. Aperbitter shows that likelihood of confusion does not always arise from the full name. Sometimes, the element the consumer sees, hears and remembers first is enough.

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