Kraft Foods successfully defends Milka pack shapes

Kraft Foods Deutschland GmbH has again successfully defended trademark infringement and unfair competition claims by Ritter Schönbuch Vermögensverwaltungs GmbH & Co KG. The Cologne Appeal Court (Case 6 U 139/12, April 12 2013) confirmed the first-instance decision of the Cologne District Court (Case 84 O 222/11, July 18 2012), which had dismissed 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 still file an appeal against the refusal of leave to appeal.

In the present case, Ritter challenged another variant of the ‘double-pack’ 80g Milka chocolate, which had previously been held not to infringe Ritter’s German three-dimensional (3D) 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 in the two cases.

In the present case, Ritter also challenged Kraft’s Lila Tender product, a chocolate cake in a rectangular flow-pack, and Kraft’s Lila Pause (the product consists of a rectangular pack containing three Lila Pause chocolate bars). The packaging of these products is mostly of a lilac colour; it contains the famous Milka logo and the Milka ‘Lila Kuh’, the widely used image of a lilac cow. Ritter challenged the shape of these packages, alleging that they infringed its registered 3D marks. It argued that:

• Kraft’s packages caused detriment to the reputation of its 3D marks;
• there was a likelihood of confusion between the parties’ products; and
• Kraft engaged in unfair competition.

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

Henning Hartwig, Bardehle Pagenberg, Munich

Bardehle Pagenberg acted for Kraft Foods Deutschland GmbH