2023-04-27 19:46:07
Eieiei versus egg, egg, egg, egg, egg: In the Zoff between two eggnog manufacturers, the Düsseldorf Higher Regional Court has spoken a word of power. It was about the question of how many eggs are allowed in advertising for eggnog.
Tinkering allowed: In the dispute between two eggnog manufacturers, the Düsseldorf Higher Regional Court has spoken a word of power. With its verdict on Thursday, the court sided with the spirits manufacturer Nordik from Lower Saxony. The spirits manufacturer Verpoorten from Bonn got nothing.
Verpoorten had sued the Lower Saxony because of their advertising. Nordik had advertised five eggnog bottles with the addition “Ei, Ei, Ei, Ei, Ei”. A promotion ran at Christmas, the bottles were served as Christmas packages. A campaign ran at Easter, the eggnog came into the nest as an Easter egg substitute.
Verpoorten’s lawyers saw this as a “clear reference” and too close to the word mark “Eieiei” registered since 1979 and the famous slogan “Eieiei Verpoorten” (Ref.: I-20 U 41/22).
But the court saw it differently: Senate Chairman Erfried Schüttpelz found that an egg liqueur manufacturer could not be prohibited from referring to the egg as a raw material. That is not a trademark infringement.
“In the overall assessment, we come to the conclusion that we see a difference and a sufficiently large distance,” the Higher Regional Court had already made unmistakably clear in March.
definite thing
The court stayed with that. The court did not even allow the appeal, it sees the matter so clearly. The only thing left for the people of Bonn to do is appeal to the Federal Court of Justice against this non-admission.
“I’m happy,” said Nordik Managing Director Arndt Weßel after the verdict was announced by the German Press Agency. “We first signed a cease-and-desist declaration because we didn’t want to argue about such a small matter,” reported Wessel.
But the Verpoorten lawyers would not have let up. “They didn’t talk to us. When the accusation came that we had violated the omission, we wanted to know.”
The people of Lower Saxony, who had recently moved their distillery from Jork in the Old Country to Horneburg, had previously failed with their application to the German Trademark and Patent Office in Munich to have the five-time egg list protected as their own trademark: the mere reference to the basis of all eggnog is not protectable.
No mere enumeration
The people of Bonn succeeded in doing this at the end of the 1970s, because Eieiei is not just a list, but also an expression of surprise, similar to the Saxon “Ei verbibbsch” or the exclamation “Ei der Daus”. The OLG had noted that the North German egg list with its commas was completely missing.
For decades, the Bonn liqueur manufacturers had invested a lot of money in the slogan “Eieiei Verpoorten” and burned it into the minds of millions of Germans. The slogan is still used avidly by the company. The lawsuit was about warning costs and any liability for damages if the egg list had been evaluated as reputation exploitation. This is now probably off the table with the verdict.
“We note that the Senate of the Düsseldorf Higher Regional Court assesses the legal situation differently than we do,” said Managing Director William Verpoorten in Bonn on request. Verpoorten first used the slogan in advertising in 1961. “We have used this slogan successfully for more than 60 years and understandably will continue to defend our trademark rights against imitators.” (dpa)
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