The Greek Communication Review Board (CRB) has entered the territory of trade dress infringement via review of advertising material.  In its decision No. 4911/2011, just before the advent of the new year, it held that the appearance in advertising material/communications of various types of the butter product ‘HORIO SOFT (unsalted, salted and light) created a likelihood of confusion and took unfair advantage of the repute of the LURPAK butter trade dress for the respective product types. In particular, the CRB held that HORIO’s main trade dress elements, namely (i) the shape, (ii) a ‘wave’ device on the upper and side part of the product and (iii) the colors red, blue, ciel for each type of product respectively, were similar to those of the LURPAK butter and could create consumer confusion (unfortiunately pics of HORIO disputed products aare not available). Moreover, the said similarities entailed misappropriation of LURPAK’s reputation. It is interesting to note that CRB’s know-how on ad strategy allowed it to  disregarded the differences on the products’ word elements (something that courts are not always willing to do) to arrive at its ruling.  What the decision also confirms is that approximation of distinctive elements of a product's line always creates passing off suspicions (though this blogger is not sure whether the LURPAK butter's shape is distinctive).

The CRB’s willingness to rule on the case is quite useful for brand owners as it allows them to make use of the CRB’s ultra-speedy process to tackle trade dress infringement. Though not formally enforceable and unable to substitute the value of a court judgment, the CRB’s decision is respected and complied with by the advertising industry. Accordingly, for trade dress infringement, the CRB can provide an efficient alternative dispute resolution forum or, even, form part o of a wider litigation strategy, encompassing both ‘classic’ legal action and informal dispute settlement procedures.