Jams and fruit spreads “Glück”
The plaintiff produces jams and fruit spreads. In February 2017, it launched a new range of jams on the German market labelled “Glück” (happiness), which are presented as follows:
The defendant (founded: 2019), produces sweet spreads and has been selling honey in a consistent jar under the name “LieBee” since its market launch in autumn 2019, which is designed as follows:
The plaintiff considers the design of the defendant “LieBee” honey jars to be an unfair imitation of its “Glück” jam jars. The defendant is thus misleading about the origin of the product and is also exploiting the value of the “Glück” jam jars.
The Hamburg Regional Court and the Hamburg Higher Regional Court confirmed the plaintiff’s requests. German Federal Court of Justice set the judgement aside.
This is therefore about the protection against imitation under unfair competition law pursuant to Section 4 No. 3 (a) UWG. Anyone who offers goods or services that are an imitation of the goods or services of a competitor is acting unfairly – if they cause customers to be avoidably misled about the commercial origin. In this case, the main issue is the competitive character of the imitation “Glück” jam jars and the question of avoidable deception about the commercial origin.
Emotional keywords
An emotional keyword as product name, in particular “Glück” for jam jars can not ground competitive originality.
Section 4 No. 3 (a) UWG protects goods and services with their concrete features, but not their basis in form of an abstract idea e.g. an emotional keyword. According to BGH it would have been possible to argue that the wording “Glück” is striking and visually dominant for the consumer.
No protection for the idea of a concept
The German Federal Court of Justice rejects the argument of an indirect deception of origin. It can not be argued that the consumers think that the “LieBee” produkt is the original product signed with a secondary trade mark, because the plaintiff has not even offered honey. The different signs “Glück” for jam and “LieBee” for honey can reason an indirect deception of origin only if the concept of the plaintiff’s products would be protected. In fact the idea of a concept design is not protected by unfair competition law.
The German Federal Court of Justice set aside the appeal judgement and referred the case back to the Court of Appeal for a new hearing and decision.
To the point
There is no concept protection in unfair competition law. Neither a concept design nor emotional keywords reasons worth protecting competitive origin.
