Press release of April 30, 2013

Once again, BARDEHLE PAGENBERG successfully defended Kraft Foods Deutschland GmbH, Bremen, against alleged infringement of trademark rights of Ritter Schönbuch Vermögensverwaltungs GmbH & Co. KG, Waldenbuch, and assertion of unfair competition (see also here). The Cologne Appeal Court (decision of April 12, 2013 – Case 6 U 139/12) confirmed the first-instance decision of the Cologne District Court of July 18, 2012 (Case 84 O 222/11), dismissing all of Ritter’s claims. Again, the Cologne Appeal Court did not allow Ritter to appeal the decision to the Federal Supreme Court. However, Ritter may file an appeal against refusal of leave to appeal.

In the new case, Ritter challenged another variant of the “double-pack” 80 g Milka chocolate which had previously been held to be not an infringement of Ritter’s German 3-D marks for its square chocolate tablets. The earlier case is currently pending before the Federal Supreme Court on Ritter’s appeal against the refusal of leave to appeal. The Cologne Appeal Court considered the new action to be inadmissible because of the identity of the subject matter with the earlier case.

In the new case, Ritter also challenged Kraft products “Lila Tender”, a chocolate cake product in a rectangular flow-pack, and “Lila Pause”, also a rectangular pack containing three chocolate bars “Lila Pause”. The packaging of all these products is mostly of lilac colour, showing the famous “Milka” logo and the Milka “Lila Kuh”, the widely used image of a cow in lilac. Ritter challenged the shape of these packagings as infringements of its registered as a 3-D mark, arguing, on the one hand, detriment to its reputed 3-D mark, and, on the other, likelihood of confusion, as well as claiming unfair competition.

The Cologne Appeal Court rejected all of these claims. The Court considered the packaging of “Lila Tender” and “Lila Pause” not to be sufficiently similar to Ritter’s 3-D mark to create a “link” in the mind of the public, and also found that there was no detriment to the reputation of Ritter’s mark. Similarly, claims based on likelihood of confusion and on unfair competition were also dismissed.

Representatives of Kraft Foods Deutschland GmbH:

Dr. Henning Hartwig (Attorney-at-Law, Partner)
Prof. Dr. Alexander von Mühlendahl, J.D., LL.M. (Attorney-at-Law)
Dr. Philipe Kutschke (Attorney-at-Law)

Representatives of Ritter Schönbuch GmbH & Co. KG:

Gleiss Lutz (Stuttgart): Dr. Andreas Schabenberger (Attorney-at-Law)

Cologne Appeal Court (6th Civil Senate): Hubertus Nolte (Presiding Judge)