TUESDAY, 7 APRIL 2009
Still no infringement of Tuc cracker shape, says German appellate court
An appeal court in Cologne was asked last December to decide for the second time whether use of a rectangular perforated shape for salty crackers infringed a figurative trade mark consisting of the shape a Tuc cracker (a rectangular perforated cracker shape bearing the word element 'tuc'). The defendant, a rival manufacturer of rectangular perforated crackers, sold a product with rounded edges, unlike those of the Tuc crackers the edges of which suggest an octagonal shape.
First time round, the trial court held the mark infringed but the appeal court reversed this decision. In its opinion the Tuc shape had only a low degree of distinctiveness and the distinctive and dominant elements of the respective signs were dissimilar. The Bundesgerichtshof remitted the dispute to the appeal court, asking it to reconsider (i) whether the shape of the allegedly infringing cracker would be perceived as a trade mark by the relevant public; (ii) how distinctive the claimant's sign was and (iii) whether there existed a likelihood of confusion between the warring crackers.
Hearing the case again, the appeal court concluded that there was no likelihood of confusion among the relevant consumers due to the lack of similarity between the signs: the dominant and distinctive elements of the signs at issue (ie, specific shape and number of perforated holes) were dissimilar. With regard to the similarities between the signs (ie, shape, perforated holes and colour), the court found that they were commonly used for salty crackers and were thus not distinctive.
Posted by: Jeremy Phillips @ 12.15
Tags: Germany, infringement,