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Thursday May 14, 2020
Chocolate war against BGH
Does the place belong to Ritter Sport?
Ritter Sport has been presenting itself with a succinct advertising slogan for decades. The manufacturer has had the characteristic form protected as a trademark. But Milka shakes off the monopoly.
“Square. Practical. Good.” For five decades, Ritter Sport has relied on the catchy advertising slogan and even more on the signature form. But what if other chocolate makers also want to make square offers? Milka’s competition wants to know and has been working to break brand protection for ten years. This Thursday the “Chocolate War” will land for the second time in front of the Federal Court of Justice (BGH) in Karlsruhe.
Alfred Ritter GmbH & Co. KG sees himself as right: “For many years, the vast majority of consumers have associated the Ritter Sport brand with square-packaged chocolate, even if the bar is wrapped in white paper without logo or letters. ” In the 1990s the Swabian-based company Waldenbuch protected the chocolate square as a brand, or rather, a kind of neutral, blank packaging with no printing, but with typical side flaps and longitudinal seam to fold in. the back part.
Very high protection requirements
Experts speak of a three-dimensional mark or shape mark. The German Patent and Trademark Office (DPMA) in Munich currently has more than 4,900 registered trademarks, with around 826,000 entries in total. Ferrero has protected the milk cuts and the ball Rocher (packed and unwrapped), Lindt, his golden bunny.
However: the protection requirements for registering a three-dimensional mark are very high, says DPMA spokesperson Til Huber. A registered trademark grants many rights to its owner. Therefore, trademark office examiners are careful to avoid inappropriate monopolies. “This would be the case, for example, if we protect a form that other providers of goods also need.” Simply put, a form that can be protected must be so different that it is actually perceived as a brand.
Does the Ritter Sport Chocolate Square meet these requirements? That is why there has been a dispute for a decade. In 2010, the Milka Kraft Foods group (today Mondelez) applied for DPMA to remove the two trademarks. The Federal Patent Court ordered this in 2016.
Because “signs that consist exclusively of a form determined by the type of goods themselves” cannot be protected as a registered trademark by law. The patent court considers this to be the case and refers to Clara Ritter, who founded the company with her husband Alfred Eugen and who had the idea in 1932: “Let’s make chocolate that fits in the pocket of any sports jacket without breaking and having same weight as normal long board. ” For the judges, this is an advantage over the elongated rectangular competition, which Ritter cannot claim for himself.
Main purpose? consumption
BGH sees it differently in 2017: The central question should be whether the square shape is typical for the use of chocolate. Judges still see their primary purpose in consumption. So the main thing is the flavor and the ingredients. They consider irrelevant if the chocolate can be put on the jacket.
So patent judges must decide again in 2018, this time Ritter Sport wins. But the case ends in Karlsruhe again.
Now there is another criterion. Because even a sign that only consists of a form “that gives products essential value” does not enjoy the protection of the registered trademark. The square is so valuable precisely because of its simplicity, says Milka. Therefore, the basic form must also be available for competition.
The patent court judged this differently. A square is “nothing more than a special rectangle”. At the very least, the difference “could not justify any relevant artistic or design value and no significant difference in the shape of the products”.
That means: Ritter Sport would maintain its trademark protection. The decision of the Federal Court of Justice will be decisive. A final judgment of the Federal Court of Justice is expected in the coming weeks (file number: I ZB 42/19 and others).
