Egg liqueur contains eggs. Advertising the spirit using the term “egg” therefore cannot be prohibited, as decided by the OLG Düsseldorf in a trademark dispute (Case No. I-20 U 41/22).
Trademark protection is important for companies, but it also has its limits. This is demonstrated by the judgment of the OLG Düsseldorf on 27.04.2023 in a dispute between two egg liqueur manufacturers, according to the commercial law firm MTR Legal Rechtsanwälte, which focuses one of its consultation areas on intellectual property law.
Before the OLG Düsseldorf, the case concerned the trademark of an egg liqueur manufacturer who has been advertising his beverage with “Eieiei” for decades and had it protected as a wordmark. Another egg liqueur manufacturer added two more eggs to his advertising and, in 2020, promoted on his website a package with five small egg liqueur bottles with the text “Egg, Egg, Egg, Egg, Egg”. The other distillery saw this as an infringement of its registered wordmark.
However, the lawsuit was unsuccessful at the OLG Düsseldorf. The registered wordmark was not violated, according to the OLG. An infringement would only exist if the consumer sees in the sign an indication of the origin of the goods. This was not assumed to be the case here.
The court reasoned that consumers would merely see the text “Egg, Egg, Egg, Egg, Egg” as a descriptive indication of the advertised product’s nature – namely egg liqueur. The core ingredient, after all, is eggs. Therefore, “egg” is not understood as an indication of the origin of the goods. The fivefold mention of the word “egg” did not change this. An egg liqueur manufacturer cannot be prohibited from referring to the core ingredient. The overall presentation of the advertisement also reinforced the impression that it is a reference to the ingredient. One presentation displayed an “Easter nest,” and in another, each of the five small bottles was associated with an “egg.” A trademark infringement was not identifiable, according to the OLG.
Attorneys experienced in intellectual property law advise at MTR Legal Rechtsanwälte on trademark law issues.
