Performance protection
for stand-up pouches from
Capri-Sun.
Performance protection
for stand-up pouches from
Capri-Sun.
from
Do imitations of the well-known Capri-Sun stand-up pouch violate competition law even if no trademark or other property rights exist (anymore)? Yes, the Cologne Higher Regional Court ruled that this was due to protection of services under competition law.
What is it all about?
The children’s fruit juice drink “Capri-Sun” or now “Capri-Sun” has been produced in numerous varieties since 1969.
This fruit juice drink is characterized by the so-called stand-up pouch in which the drink is offered. The stand-up pouch was registered as a three-dimensional trademark from 1996 to 2014, but was canceled due to absolute grounds for refusal (grounds for refusal of the technically conditional shape, see BPatG, decision of June 28, 2017, Ref. 26 W (pat) 63/14) was canceled.
Another fruit juice manufacturer exhibited its own fruit juice drinks in stand-up pouches at a food trade fair. The manufacturer of Capri-Sun then obtained an injunction based on the trademark, which was still registered at the time.
In earlier proceedings, the fruit juice manufacturer was still able to take action against imitators on the basis of trademark law. However, after the trademark had been deleted in the meantime, the Capri-Sun manufacturer relied on supplementary protection under competition law in the present main proceedings and wanted to obtain, among other things, an injunction against the imitating other manufacturer. After the Regional Court of Cologne upheld this claim, the imitating manufacturer appealed to the Higher Regional Court of Cologne.
Decision of the court on the Capri-Sun stand-up pouch
The Higher Regional Court of Cologne(judgment of 29.11.2019, ref. 6 U 82/19) found that the use of the stand-up pouch constituted an unfair misrepresentation of origin.
According to the court, in this context, it depends on the degree of competitive originality of the original (Capri-Sun) and the manner and intensity of the takeover.
The stand-up pouch is suitable for a juice drink to refer to a specific manufacturer. The environment shows that, apart from the plaintiff’s product, there is no other product with comparable features. The design of the Capri-Sun stand-up pouch therefore already has an average competitive character. Since the plaintiff’s product is very well known due to the duration and intensity of its market presence since 1969, it can even be assumed that it has an enhanced and thus above-average competitive character.
Furthermore, the court found that the Capri-Sun stand-up pouch was imitated almost identically. The other manufacturer had not only adopted the “naked” stand-up pouch almost identically, but also the other design features.
He also printed his trademark and the image and color elements only on the front. All other information such as ingredients, nutritional information, etc. was on the silver-colored back of the aluminum-colored “naked” stand-up pouch. The design of the packaging therefore corresponds almost 1:1 to the design of the Capri-Sun stand-up pouch.
Conclusion
Supplementary protection under competition law can be a means of defense against unlawful imitations by third parties. This can also apply if other property rights such as trademarks, designs or patents do not (or no longer) exist.
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