Press release of March, 2012

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. The Cologne Appeal Court reversed the first-instance decision of the Cologne District Court of July 30, 2011 (Case 31 O 478/10), dismissing all of Ritter’s claims (decision of March 30, 2012 – Case 6 U 159/11). 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 2010, Kraft Foods had brought to market chocolate bars where two 40 g bars were offered together in a double pack. By way of a perforation in the middle, the double pack could be divided in two halves of the same size. The packaging of the bars was mostly of lilac colour, showing the name “Milka” and depicting the “lilac cow”. Ritter challenged the shape of the double pack, in particular as infringing its square-shaped packaging registered as a 3-D mark, arguing, on the one hand, likelihood of confusion and, on the other, dilution of the distinctiveness of its trademark.

The Cologne Appeal Court rejected all of these claims. The use of the double pack would lead, in the perception of the consumers, to a “very large distance” to the Ritter shape mark, “amounting to a dissimilarity of signs”, since the attention of consumers was caught by other elements of colour, words and images, instead of the form. The Court relied in particular on consumer surveys submitted by Kraft Foods, according to which “no relevant part of the average consumers” would establish a “sufficiently intensive mental association” between the “Milka” double pack and the Ritter trademark.

Representatives Kraft Foods Deutschland GmbH:

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

Representatives Ritter Schönbuch GmbH & Co. KG:

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

Cologne Appeal Court (6th Civil Senate)

Hubertus Nolte (Presiding Judge)