The 14c. Civil Chamber of the Düsseldorf Regional Court dismissed the urgent application by Dr. Oetker KG to impose a Europe-wide sales ban on the chocolate-vanilla pudding "Flecki" distributed by Aldi Einkauf GmbH & Co OHG.
The court sees neither the infringement of a European design right registered by Dr. Oetker (Community design) nor the infringements of competition alleged by Dr. Oetker. The design of the Aldi product "Flecki" showed sufficient differences to Dr. Oetker's "Paula". The design of the pudding "Flecki" did not infringe any rights arising from a design registered for Dr. Oetker in 2005. There was no consistent overall impression between the design patent and the design of "Flecki". Although the side view of the "Flecki" product was similarly spotted to the design, the top view was almost monochrome, clearly deviating from the design. The board also did not consider the marketing of "Flecki" to be an infringement of competition law, such as an avoidable deception of origin or exploitation of reputation. It was true that Dr. Oetker had brought an innovative product onto the market with its cowhide-like design of the vanilla-chocolate components in the pudding "Paula", which had been made very well known through intensive advertising and had a high degree of competitive distinctiveness. But even if one came to the conclusion that "Flecki" imitated Dr. Oetker's pudding product "Paula" due to its similar design and target group appeal, this was not done in an unfair and thus unlawful manner. It should be noted that a competitor's product must not be designed in such a way that the customer is avoidably misled about its actual origin. The design of the product must therefore not be aimed at making the customer believe that instead of buying "Flecki" he is actually buying "Paula". Such a deception of origin had to be particularly examined in the present case because it was generally known that Aldi also sold products of well-known manufacturers under a different name and then also in a different product presentation (secondary brand).
Even if individual customers might believe that they were actually buying "Paula" instead of "Flecki", Aldi could not be blamed for this. In the design of "Flecki", the necessary steps had been taken to avoid deception as to origin.
In principle, it must be possible for a competitor to bring a milk product close to a cow and its fur for child-friendly design. At the same time, however, the competitor must take measures to avoid misleading consumers as to the origin of the product. In the case in dispute, this had been done by the deviating detailed design of the product. The grain of the pudding masses of "Flecki" and "Paula" already differed. "Paula" was characterised by clearly delimited spots which lay like islands in a different type of mass and did not touch each other. Flecki", on the other hand, was more like individual fields that were connected to each other by bridges. The presentation and packaging also differed considerably. While "Paula" was only offered in packs of four, "Flecki" was only available in packs of two. There were also considerable differences between the cows that gave the product its name and were depicted on the cup lids and the cardboard packaging. The cow "Flecki" is a rather skinny, white cow with a cowbell that looks into the picture from the edge against the backdrop of a farm and is not the focus of the product design. In contrast to this is "Paula".
The sunglasses were distinguished by their particular individuality. Her stylised drawing and her sunglasses suggesting "coolness" were the focus of the product, without her other surroundings playing a relevant role. Accordingly, the cow "Paula" was also at the centre of all product advertising, such as the packaging, the TV commercials, the children's song especially dedicated to her and the homepage on which information and games relating to the cow were offered.
Judgment of the Düsseldorf Regional Court of 01.03.2012, Ref.: 14c O 302/11
Background information "Flecki" and "Paula":
Since August 2005, Dr. Oetker KG has been selling the vanilla-chocolate strudel pudding "Paula" throughout Germany, which it promotes intensively, including through TV commercials. The pudding "Paula" is named after the eponymous artificial figure, a cow, which is the focus of the advertising measures for the product and - wearing large sunglasses - also dominates the packaging. The way the chocolate and vanilla ingredients of the pudding are mixed creates an overall visual impression that is reminiscent of a cow's coat and picks up on the colours of the cow "Paula". Aldi has also been selling a vanilla-chocolate strudel pudding under the name "Flecki" in North Rhine-Westphalia since mid-November 2011. In this product, too, the mixture of the pudding ingredients has stain forms
on. The packaging of the pudding shows the image of a white, rather gaunt cow standing in front of the
The backdrop of a farm is depicted. Both products are characterised by a child-friendly design.
Source: Press release of the LG Düsseldorf
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
