No unfair competition infringement just because of trade fair presentation

On 23 October 2014 the German Federal Court of Justice (BGH) had to decide whether the mere presentation of a biscuit that is presumed to constitute an imitation of another biscuit product at the ISM in Germany, is sufficient to raise the  actual risk of an infringement for the affected competitor.

Since more than three decades the claimant distributes biscuit sticks in Germany. 80% of the surface of such a biscuit stick is chocolate-coated. The defendant distributes almost identical biscuit sticks in Turkey and other countries, but not in Germany. Besides the fact that the defendant’s packaging displays a picture of the defendant’s biscuit sticks, it otherwise looks very different compared to the claimant’s packaging. In the year 2010 the defendant presented its biscuit sticks at the ISM in Cologne. The claimant applied for an injunction to the Regional Court of Cologne  (LG Köln) demanding that the defendant cease and desist from offering this product. This claim was now, in the last instance, rejected by the BGH.            

Among others, one condition for granting injunctive relief is that there is a risk of the defendant infringing the law of unfair competition in the future, e.g. by distributing the imitations in Germany. Contrary to the view taken by the Higher Regional Court of Cologne (OLG Köln), the BGH is of the opinion that there is no such risk in the present case. Only because the defendant presented its biscuit sticks at the ISM in Germany, it cannot be presumed that the defendant will distribute the product to consumers in Germany in the same form or packaging as it was presented at the trade fair. This is the case at least when the trade fair is an international one and open to trade specialists only.

BGH, judgement of 23 October 2014 (I ZR 133/13 – "Keksstangen")