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Apr
08

OLG Köln: Protection of competitive distinctiveness

OLG Köln: Protection of competitive distinctiveness

OLG Köln: Protection of competitive distinctiveness

A product that is not protected by a trademark may nevertheless benefit from protection against imitations under competition law. That was the verdict (Az. 6 U 82/19) of the Oberlandesgericht (OLG) Köln – the Higher Regional Court of Cologne.

We at the commercial law firm MTR Rechtsanwälte can report that purely technical solutions are not supposed to be afforded protection under trademark law in order to allow for free competition. A product may nonetheless display competitive distinctiveness and thus enjoy protection against misrepresentation of origin.

The case before the OLG Köln concerned the packaging of a fruit juice. The plaintiff had registered a stand-up pouch as a trademark, only for this to be subsequently deregistered in 2014 with reference to an absolute ground for refusal. The defendant had presented fruit juice at a trade fair in such a stand-up pouch and came off the worse for it.

Even in the absence of trademark protection, a product may display competitive distinctiveness and thus enjoy protection against misrepresentation of origin. That was the case here according to the OLG. What constitutes misrepresentation of origin was said to be determined by the degree of competitive distinctiveness and the nature and intensity of the adoption. The court attributed above-average competitive distinctiveness to the plaintiff”s packaging due to the duration and intensity of the brand”s decades-long profile, ruling that the lack of trademark protection was not an obstacle to the protection of related rights under competition law.

https://www.mtrlegal.com/en/legal-advice/competition-law.html

MTR lawyers www.mtrlegal.com/en/ is an international full service law firm. The lawyers counsel on corporate and commercial law, business law, tax law, IT law and IP law and distribution law. The law firm advises international companies, corporations, mid-sized businesses and private clients worldwide. MTR Rechtsanwaelte can be found in Berlin Bonn Cologne Duesseldorf Frankfurt Hamburg Munich Stuttgart, Germany

Kontakt
MTR Rechtsanwälte
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221 2927310
+49 221 29273155
info@mtrlegal.com
https://www.mtrlegal.com/en/

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