Tinkering allowed: In the dispute between two eggnog manufacturers, the Düsseldorf Higher Regional Court has spoken a word of power. With its verdict on Thursday, the court sided with the spirits manufacturer Nordik from Lower Saxony. The spirits manufacturer Verpoorten from Bonn got nothing.
Verpoorten had sued the Lower Saxony because of their advertising. Nordik had advertised five eggnog bottles with the addition “Ei, Ei, Ei, Ei, Ei”. A promotion ran at Christmas, the bottles were served as Christmas packages. A campaign ran at Easter, the eggnog came into the nest as an Easter egg substitute.
Verpoorten’s lawyers saw this as a “clear reference” and too close to the word mark “Eieiei” registered since 1979 and the famous slogan “Eieiei Verpoorten” (Ref.: I-20 U 41/22).
But the court saw it differently: Senate Chairman Erfried Schüttpelz found that an egg liqueur manufacturer could not be prohibited from referring to the egg as a raw material. That is not a trademark infringement.
“In the overall assessment, we come to the conclusion that we see a difference and a sufficiently large distance,” the Higher Regional Court had already made unmistakably clear in March.
definite thing
The court stayed with that. The court did not even allow the appeal, it sees the matter so clearly. The only thing left for the people of Bonn to do is appeal to the Federal Court of Justice against this non-admission.
The people of Lower Saxony, who had recently moved their distillery from Jork in the Altes Land to Horneburg, had previously failed with their application to the German Trademark and Patent Office in Munich to have the five-fold list of eggs protected as their own trademark: the mere reference to the basis of all eggnog is not protectable.
The people of Bonn succeeded in doing this at the end of the 1970s because Eieiei is not just a list, but also an expression of surprise, similar to the Saxon “Ei verbibbsch” or the exclamation “Ei der Daus”. The OLG had noted that the North German egg list with its commas was completely missing.
For decades, the Bonn liqueur manufacturers had invested a lot of money in the slogan “Eieiei Verpoorten” and burned it into the memories of millions of Germans. The slogan is still used avidly by the company. The lawsuit was about warning costs and any liability for damages if the egg list had been evaluated as reputation exploitation. This is now probably off the table with the verdict.
