“Eierlikör” (German egg liqueur) contains eggs. It is for this reason – according to Düsseldorf’s regional court of appeal, the Oberlandesgericht (OLG) Düsseldorf – that a ban on promoting the drink using the word “Ei”/egg is not lawful (case ref.: I-20 U 41/22).
As important as trademark protection is for businesses, it has its limits. And one need look no further than the verdict of the OLG Düsseldorf in a case from April 27, 2023, concerning a trademark dispute between two producers of Eierlikör, highlights commercial law firm MTR Legal Rechtsanwälte, whose areas of expertise include intellectual and industrial property law.
The plaintiff, one of the two Eierlikör producers in this case, had been promoting its drink for decades using the identifier “Eieiei” (literally, “eggeggegg”) and had this registered as a word mark. Another producer of Eierlikör, the defendant, added two more eggs to the mix and in 2020 promoted a small package on its website featuring five little Eierlikör bottles with the text “Ei, Ei, Ei, Ei, Ei” (egg, egg, egg, egg, egg). This was later deemed by the other distillery to be an infringement of its registered trademark rights in the word mark.
Ultimately, its legal action was not granted by the OLG Düsseldorf, which ruled that the trademark rights in the registered word mark had not been infringed. This would only have been the case if consumers interpreted the sign as pointing to the product’s origin, something which could not be assumed in this case.
In justifying its decision, the Court reasoned that consumers view the text “Ei, Ei, Ei, Ei, Ei” as merely a descriptive reference to the composition of the advertised product, namely Eierlikör. The key ingredient, after all, is eggs, which is why “Ei” is not perceived as a reference to the product’s origin, and the fact that the word “Ei” is mentioned five times does not change this. The Court went on to state that a producer of egg liqueur cannot be prohibited from referencing the key ingredient. Moreover, the overall presentation of the advertising was said to reinforce the impression that this was a reference to the relevant ingredient. In one instance, it is depicted as part of an Easter nest; in another instance, each of the five little bottles features an egg. All things considered, the OLG Düsseldorf concluded that the evidence did not point to an infringement of trademark rights.
The team of experienced attorneys at MTR Legal Rechtsanwälte includes experts in industrial and intellectual property law.
