A product that is not protected by a trademark may nevertheless benefit from protection against imitations under competition law. That was the verdict (Az. 6 U 82/19) of the Oberlandesgericht (OLG) Köln – the Higher Regional Court of Cologne.

We at the commercial law firm MTR Rechtsanwälte can report that purely technical solutions are not supposed to be afforded protection under trademark law in order to allow for free competition. A product may nonetheless display competitive distinctiveness and thus enjoy protection against misrepresentation of origin.

The case before the OLG Köln concerned the packaging of a fruit juice. The plaintiff had registered a stand-up pouch as a trademark, only for this to be subsequently deregistered in 2014 with reference to an absolute ground for refusal. The defendant had presented fruit juice at a trade fair in such a stand-up pouch and came off the worse for it.

Even in the absence of trademark protection, a product may display competitive distinctiveness and thus enjoy protection against misrepresentation of origin. That was the case here according to the OLG. What constitutes misrepresentation of origin was said to be determined by the degree of competitive distinctiveness and the nature and intensity of the adoption. The court attributed above-average competitive distinctiveness to the plaintiff’s packaging due to the duration and intensity of the brand’s decades-long profile, ruling that the lack of trademark protection was not an obstacle to the protection of related rights under competition law.

https://www.mtrlegal.com/en/legal-advice/competition-law.html