An interesting decision on trademark law has been taken by the Regional Court of Munich. After Lindt fought and lost to the ECJ for the 3D trademark protection of the gold hare, the chocolate manufacturer succeeded at the district court in Munich.
The latter decided that the gold hare should be entitled to colour mark protection, since the colour gold is the epitome of the Lindt bunny. Accordingly, the General Court upheld the claim for an injunction made under Paragraph 14(4) of the 2 No. 2, Para. 3 and 5 MarkenG due to the risk of confusion.
In the context of the judgment, the General Court ruled, inter alia, on the question of the extent to which traffic is covered:
The effect on transport means that a not insignificant part of the public concerned assigns the sign to a specific (not necessarily named) undertaking; however, a fixed minimum percentage is not associated with this. The sign must have acquired the trade mark in particular, which is only the case if the sign on the market is used as an indication of the commercial origin of the goods or services thus marked in order to distinguish between the same goods or services. other operational origin. The mere public awareness or popularity of the product itself is not sufficient for this, nor is the reputation of the sign as such, e.g. as a product name.
However, the Court also made it clear that colour mark protection is anything but a principle.
If a colour is used on the packaging of a product, it is only exceptionally acceptable that this is done in an exceptional manner indicating the origin of the product. Consumers are generally not accustomed to instilling the origin of the goods from the colour of goods or their packaging without the addition of graphic or word elements, since, in principle, a colour as such is not, in accordance with current practice, used as a means of identification.
With the Lindt bunny, however, this would be different:
In the event of a dispute, the traffic referred to […] includes the colour gold on the packaging foil of the plaintiff chocolate bunnies as an independent indication of origin. The gold tone used by the applicants for their chocolate bunnies has not only normal, but a high distinctiveness, which has been increased by years of intensive application and use […]
