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“Tork”

Decision of the Federal Supreme Court (Bundesgerichtshof) 17 October 2018 – Case No. I ZR 136/17
  • Regulation (EC) 207/2009, Arts. 9(1) second sentence lit a, 9(3) lit. (a), 102(1); Regulation (EU) 2017/1001, Arts. 9(2)(a), 9(3) lit. (a), 125(1), 130(1) and (2); Trade Mark Act, Sec. 125b No. 2
Decision • Trade Mark Law Germany
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  1. 1.

    A trade mark infringement is per se given when a refillable container bearing the trade mark of the original manufacturer is restocked with another manufacturer’s goods and the public understands the mark on the container to be an indication not only of the commercial origin of the container, but also of the commercial origin of its contents.

     
  2. 2.

    In considering the question of whether the public does in fact make such a connection in the individual case, it can be relevant whether the refill goods themselves bear a mark that the public can recognise while using the goods, whether consumers themselves do the restocking and whether the public is accustomed to the container being stocked with goods from other manufacturers. The relevance of trade marks in the product area in dispute can also have an effect on the public’s perception.

     

Keywords

Restocking of a refillable container with another manufacturer’s goods Commercial origin of a container as an indication of commercial origin of content General public’s perception Repair clauses Labelling of equipment used to dispense goods and the labelling of the actual goods Who refills the goods? 

Notes

Copyright information

© Max Planck Institute for Innovation and Competition, Munich 2019

Authors and Affiliations

  • Regulation (EC) 207/2009, Arts. 9(1) second sentence lit a, 9(3) lit. (a), 102(1); Regulation (EU) 2017/1001, Arts. 9(2)(a), 9(3) lit. (a), 125(1), 130(1) and (2); Trade Mark Act, Sec. 125b No. 2

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