In two “culinary” court orders of 13 October 2009 the German Federal Patent Court (Bundespatentgericht) decided that the marks “Tortellini“ and “Ravioli“ (25 W (pat) 22/09; 25 W (pat) 23/09) are not distinctive enough to qualify for registration for the goods “fruit gums, wine gums, confectionary”.
In case 25 W (pat 22/09, the court held that the term “Tortellini” describes the shapes of the goods covered by the application. “Tortellini” stood for the basic form of ring-shaped pasta which was filled with a mixtures of vegetables, meat or (parmesan) cheese. In this sense the term was also commonly known in the trade in Germany. In the light of this factual background the average German consumer would understand the term “Tortellini” first and foremost as reference to the shape of the confectionary goods on offer which joined the usual shapes of sweets and confectionaries. Whether or not the applicant was currently the only provider who had chosen this particular shape for its sweets, did not affect the fact that the consumer would view the mark “Tortellini” as a mere descriptive reference to the shape of the goods.
The cases can be retrieved by clicking here (25 W (pat) 23/09) and here (25 W (pat) 22/09).
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