Mon, May. 26, 2003

Tupperware v. TopParty in German Supreme Court

MP - Munich. The German Supreme Court (BGH in its decision I ZR 276/00) confirmed on April 10, 2003 a ruling by the Cologne appeals court (OLG Köln) that the mark "LEIFHEIT TopParty" does not infringe on the "Tupperware" trademark.

Dissenting from the OLG Köln it also decided that "LEIFHEIT TopParty", used for household articles sold in retail stores, does not take unfair advantage of the well-known "Tupper(ware)party" term describing the way "Tupperware" products are being promoted and sold in Germany.

At first, the BGH doubted any special need to protect the "Tupperparty" name under the laws of unfair competition, since the claimant only used a term developed by the market instead of introducing it to the market itself.

The crucial point, however, was that the court found no sufficient likelihood of confusion. Especially having regard to the different selling methods of which the average consumer is aware, mere association is not considered sufficient to constitute unfair competition.

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