The German Federal Supreme Court decides over the infringement of a three dimensional mark having a secondary meaning (“Bounty”)

The plaintiff is the owner of the German trademark number 3020 1003 3190, showing the three dimensional shape of the chocolate bar “Bounty”. The defendant has – in a considerably different packaging – brought a similarly shaped chocolate bar to the market. The Cologne Higher Regional Court rejected the plaintiff’s action by reasoning that the defendant did not use the three dimensional form of the chocolate bar as a trademark. The German Federal Supreme Court has, in its decision “Bounty” – I ZR 23/14, set aside the decision of the Higher Regional Court and found a trademark infringement. Within the reasoning of the decision it reads: “If there is a high similarity between a three dimensional trademark having a secondary meaning and the shape of an attacked product, one can, as a rule, assume that the consumer not only understands the form of the protected trademark but also the shape of the attacked product as pointing to the origin.”