9 April 2018Jurisdiction reportsJens Künzel

Germany jurisdiction report: Chocolate packaging and protection

In October 2017, Germany’s Federal Supreme Court had to decide whether the quadratic chocolate packaging, which Ritter Sport has been using for a long time, was eligible for trademark protection in Germany.

The German Federal Patent Court had said that it was not eligible, basing its decision on two grounds.

First, the court had said that the trademark (which showed the 3D quadratic shape of a chocolate bar wrapper, without any prints on it, wrapped in a certain way in white packaging material) consisted exclusively of the shape, or another characteristic, which results from the nature of the goods themselves.

This is one of several potential absolute grounds for refusal of a trademark, regulated under the EU trademarks directive and transformed into German trademarks laws.

On appeal, the German Supreme Court countered that, as a matter of principle, the Court of Justice of the European Union (CJEU) had ruled in the past that the packaging of chocolate bars generally did not exclusively consist of the shape that results from the nature of the goods themselves.

In this case, the court saw no exceptional reasons why this case should be evaluated differently. The Supreme Court said that this absolute ground for refusal required that the packaging absolutely corresponds with the shape of the goods concerned. That assumption was not possible here, since the packaging was similar to the shape of the goods (the chocolate bars themselves) but was not identical to it.

The function of the shape

A further reason the Supreme Court did not agree with the lower Patent Court’s reasoning was that—aside from the decisions of the CJEU on chocolate bar packaging—there was no way to argue here that the claimed shape exclusively consisted of the nature of the goods concerned.

The Supreme Court acknowledged that the Patent Court’s assumption that the main feature of the shape claimed by the trademark application was the “quadratic form” was correct. But the Supreme Court did not agree with the lower court’s reasoning that the quadratic shape was the result of the nature of the goods concerned.

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