HEKS'NKAAS (Witches’ Cheese) is a herbal cream/cheese dip and has been a hit in the Netherlands for years. When production is shifted from one party to another, the former producer launches a similar product under the name DIP&SMEER (Dip&Spread). However, the producer of HEKS'NKAAS has trademarked their packaging, both with and without the brand name on it. That turned out to be a smart move, because it makes a claim on the look and feel of the product. A lawsuit is filed against the very similar packaging of the newcomer.
Their defense: the packaging is not a trademark and we clearly use adifferent name. The court disagrees. There is a recognizable cardboard banderole around the transparent round plastic cup. The ingredients are displayed in a cartoonish style using shades of purple and green on a white background. This packaging is distinctive and consumers recognize this as a brand.
The newcomer’s packaging is visually similar, causing consumers to mistake as to the origin of the product.
Because the former producer deliberately aims to take advantage of the original product’s success a prohibition follows with a penalty payment of up to € 500,000, as well as litigation costs (approx. € 37,000).
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