FAQ

Tiger and Giraffe Nuts

Since 1993, Frito-Lay has been marketing TIJGERNOOTJES (TIGERNUTS); a peanut with a crispy shell. As result of the baking process, the outer dough layer is cracked. therefore, the nut has a varied pattern in the colours orange/brown and yellow. The baking process had been patented, but its protection has now expired. In order to protect the unique look and feel of the product, Frito-Lay has also trademarked the packaging and the nut itself. When the Aldi introduces a very similar looking product under the name GIRAF NOOTJES, a lawsuit follows.

The use of the name GIRAFNOOTJES is not deemed a trademark infringement. Conceptually, the trademarks are similar. A tiger and a giraffe are both wild exotic animals with spotted skins. However, the words TIGER and GIRAF differ sufficiently, both visually and phonetically. Also the packaging does not infringe. The situation is different for the nuts, they are identical. The registered trademarks for the nut is a position trademark and it is valid. As of 1 March 2019 new legislation came into force by which these trademarks are protected, but GIRAFNOOTJES cannot invoke this because the trademarks of Frito-Lay are older. As a result GIRAFNOOTJES in this colour are banned. (source image; Abcor)

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IP Quiz

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?

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