CLASS 46
Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.
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FRIDAY, 23 OCTOBER 2009
Switzerland: no sweet success for Wander against Dr. Oetker
Wander (a subsidiary of Associated British Food), the proprietor of the trade mark DAWA used for caramel pudding, sued Dr. Oetker over the appearance of the packaging used by Dr. Oetker for a competing product before the commercial court of Aargau, Switzerland (see images left for the trade dresses at issue).
Tags: switzerland, trade dress, distinctiveness,
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Switzerland: no sweet success for Wander against Dr. Oetker
The action was dismissed. The court held that the DAWA packaging, or rather, those elements of the packaging also appearing on Dr. Oetker's packaging, were not distinctive ab ovo. The standard for distinctiveness ab ovo had to be high. It was not sufficient to argue that Dr. Oetker "could have" chosen another trade dress. Competitors are free to market products that look alike other products on the market if all the products' trade dresses look similar (which was the case according to the decision).
Acquired distinctiveness was not claimed (to my knowledge, I am relying on a summary of the case).
German summary of the case here.
Tags: switzerland, trade dress, distinctiveness,
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