Article 6 1.
Article 6 1. (f)
|National ID||23 Cdo 4044/2009|
|Country||Czech Republic||Decision date||27/01/2011|
|Common name||Decision type||Supreme court decision|
|Court||Nejvyšší soud ČR (Brno)||Plaintiff(s)||BEAS, a.s.|
|Court translation||The Supreme Court of the Czech Republic (Brno)||Defendant(s)||JVS Semilská pekárna, s.r.o.|
|Keywords||identity of the trader, product characteristics, trade mark, unfair competition|
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The offering of products displaying a similar line pattern as the pattern used on the products of a competitor does not mislead an average consumer in cases where an average is likely to compare other product characteristics such as freshness of the products.
The plaintiff is a holder of a figurative trademark filed at the Industrial Property Office of the Czech Republic. The trademark consists of lines forming patterns, which together create certain diagrams. These diagrams are depicted on the surface of white bread rolls produced by the plaintiff.
The defendant also produces white bread rolls, which, according to the plaintiff, are marked with the same diagrams as the plaintiff's products and therefore infringe the plaintiff's trademark rights.
The plaintiff also claims that by selling similar products, the defendant is acting contrary to the rules of fair economic competition. The plaintiff is concerned that an average consumer may be misled by the defendant's products and that the patterns on the products' surface could lead to the consumer confusing the defendant's products with the plaintiff's products.
The plaintiff demands to have the defendant abandon the production of white bread rolls with this similar pattern on their surface and to have the defendant pay a compensation to the plaintiff of CZK 100,000.
In first instance, the Regional Court in Hradec Králové dismissed the action brought before it by the plaintiff in its entirety (judgment of 27 December 2007, 33 Cm 58/2006-148). The plaintiff appealed to this decision. In second instance, the High Court in Prague upheld the judgment of the Regional Court on its merits. The High Court ruled that defendant did not violate plaintiff's trademark rights and did not compete in an unfair wat (judgment of 08 December 2008, 3 Cmo 88/2008-244). The plaintiff appealed to this decision.
Does offering for sale products displaying a similar line pattern as the pattern used on the products of a competitor, mislead an average consumer?
The court decided that the defendant did not breach the plaintiff's trademark rights by using similar patterned lines on the surface of white bread rolls. The court ruled that the defendant has been producing white bread rolls with the questioned pattern since 1991 and therefore has the right of priority, which must be tolerated by the plaintiff.
The court also ruled that the similarity between the defendant's and plaintiff's patterns is questionable because the defendant's pattern is hardly visible. The court thus stated that an average consumer would not take such pattern as a relevant characteristic of the bakery products. An average consumer, according to the court, is a well-informed and reasonable observer and qualities such as freshness, rather than patterns on the surface of a bread roll, are more relevant to the customer when choosing bakery products.
|URL Decision||Decision full text|
The plaintiff's request was entirely denied.
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