On October 21, 2015, the German Federal Supreme Court found a consumer survey demonstrating 53.2 % of the public perceiving the claimed German mark No 3020 1003 3190 (claimed goods: “non-medical confectionary”), reproducing the shape of the well-known “Bounty” chocolate bar (shown below), as an indication of commercial origin sufficient to show acquired distinctiveness of that mark.

Interestingly, the consumer survey which was submitted by the claimant was already run in 2004 but apparently not challenged as outdated. More interestingly, the Court held, different from the lower Cologne Appeal Court (see BARDEHLE PAGENBERG IP Report 2014/I), that the very same survey would indicate that more than 50 % of the relevant public perceived the accused use of the defendant’s product (also shown below) to be use as a mark (and not merely ornamental).


                    No 3020 1003 3190                                               Acussed product                

Finally, the survey also showed, according to the Supreme Court, an average degree of distinctiveness of the claimed mark and, in light of identity of goods and high similarity of the 3-D signs at issue, an overall sufficient likelihood of confusion.

Remarks

Overall, “Bounty” is good news for the food industry in particular and owners of shape marks in general. 53.2 % degree of recognition, shown by only one consumer survey, was found sufficient for demonstrating (i) acquired distinctiveness of the claimed shape mark, (ii) use of the contested (highly similar) product configuration as a mark and (iii) sufficient likelihood of confusion. Interestingly, although the German Supreme Court claims continuity, “Bounty” appears to enter new territory, broadening the path towards a more realistic approach for protecting shape marks.

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