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.