The competition of Milka had ten years of trying to overturn the monopoly in the end in vain.
It seems a bit absurd, but a brand can always claim no protection, if it consists exclusively of a shape, “which gives the product substantial value”. This is not for the judge in the case of Ritter Sport by the case. Consumers see packaging as a note on the origin of chocolate, and associate it with quality expectations. The Form but have no artistic value and would not lead to differences in price.
trademark protection Would have fallen, had other manufacturer’s chocolate square
you can sell the trademark protection Would have fallen, would have also allowed other manufacturers to your chocolate square to sell. The complicated case was already for the second Time, the Supreme civil judges in Karlsruhe. In the first round of the Federal patent court in 2018, had decided that the knights must keep the brand. This judgment did not want to accept Milka.
As a brand, a kind of Blank-packaging: neutral without imprint, but with the typical side flaps and the longitudinal seam at the kink on the back is listed. Experts speak of a three-dimensional mark or form mark. At the German Patent and trade mark office (DPMA) in Munich 4900 of such brands are a total registered, approximately 2200 of them “live”, the Rest of the protection is expired. The conditions for registration are, according to the DPMA high. Because a brand is a space on its holder many rights.
In the second round before the BGH everything hung on a question
In the case of Ritter Sport in the second round in front of the Federal court of justice now to the question of whether the chocolate square consists exclusively of a shape, “which gives the product substantial value”. That would have been an absolute exclusion criterion for the protection of trademarks. The rule is intended to prevent that, companies can secure a monopoly on a Design, the use of which would be for the competition is important.
at the hearing in may, the presiding judge, Thomas cook had set up the presumption that the consumer take the quadratic Form as a proof of origin is true. The crucial question is whether he will buy the chocolate mainly from aesthetic and functional points of view. Also the marketing strategy with the well-known Slogan of the games for assessment.
see also: Milka, Ritter Sport, & co. hit: This is the best chocolate according to Stiftung Warentest
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ter/dpa
