Court battle for Christmas gingerbread cookies

For many people Christmas means meetings with the family at the Christmas Eve table and time for rest, however for entrepreneurs it is time of increased marketing activities to attract customers. The methods of competitive struggle used by entrepreneurs may take more or less acceptable forms. Recently, information circulated in the media that a well-known food producer had obtained a judicial security in the form of ban on the use of a specific packaging design for Christmas gingerbread cookies by a competitor. The freezing order was issued by the Regional Court in Katowice on 21 November 2020 in the case with file reference number XXIV GWo 22/20.

The basis for a claim was the similarity of the packaging in which the competitor’s cake mix was sold to the packaging previously used by the entrepreneur whose interests were violated. Such action may constitute an act of unfair competition referred to in art. 10 of the Act on combating unfair competition. Designation of goods which may mislead the customer as to the characteristics of the product is not allowed. The Act mentions such examples as quality and composition of the product, the place of its origin or the method of production – but it is not a closed catalogue. The jurisprudence assumes that the place of origin of the given product from a producer is a characteristic of that product. Therefore, if the packaging of the product is confusingly similar to the packaging of the competitor who already consolidated the image of its product packaging on the market, we will deal with an act of unfair competition (we discussed how to distinguish enterprise in our text “Misleading designation of enterprise – how to define the relevant market?”)

In the discussed Case the Court stated that the competitor’s gingerbread cookies packaging with an illustration with the following elements: “green background, a graphic element representing a stack of gingerbread cookies decorated with white icing, placed in the lower half of the composition, the producer’s designation on the top left, the name “gingerbreads” written in white font placed in the upper half of the composition, with the image of a label on which additional information is placed on a red background” may be considered as misleading to the customer. The further marketing of the product with this kind of packaging has been banned.

According to the decision on freezing order, any violation of the prohibition to use such designation of gingerbread cookies packaging is subject to order of penalty in the amount of PLN 10,000 for each case. In order to guarantee the proper enforcement of the security, the court enforcement officer under the Court’s decision seized the competitor’s Christmas gingerbread cookies packaging.

It should be pointed out that granting the freezing order takes place when the claim has been substantiated by the applicant but does not yet determine the result of the civil proceedings. The freezing order is to protect the party to the proceedings against further violations of their rights. An application for freezing order may be filed prior to bringing an action, together with the lawsuit or in the course of the proceedings.

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For many people Christmas means meetings with the family at the Christmas Eve table and time for rest, however for entrepreneurs it is time of increased marketing activities to attract customers. The methods of competitive struggle used by entrepreneurs may take more or less acceptable forms. Recently, information circulated in the media that a well-known food producer had obtained a judicial security in the form of ban on the use of a specific packaging design for Christmas gingerbread cookies by a competitor. The freezing order was issued by the Regional Court in Katowice on 21 November 2020 in the case with file reference number XXIV GWo 22/20.

The basis for a claim was the similarity of the packaging in which the competitor’s cake mix was sold to the packaging previously used by the entrepreneur whose interests were violated. Such action may constitute an act of unfair competition referred to in art. 10 of the Act on combating unfair competition. Designation of goods which may mislead the customer as to the characteristics of the product is not allowed. The Act mentions such examples as quality and composition of the product, the place of its origin or the method of production – but it is not a closed catalogue. The jurisprudence assumes that the place of origin of the given product from a producer is a characteristic of that product. Therefore, if the packaging of the product is confusingly similar to the packaging of the competitor who already consolidated the image of its product packaging on the market, we will deal with an act of unfair competition (we discussed how to distinguish enterprise in our text “Misleading designation of enterprise – how to define the relevant market?”)

In the discussed Case the Court stated that the competitor’s gingerbread cookies packaging with an illustration with the following elements: “green background, a graphic element representing a stack of gingerbread cookies decorated with white icing, placed in the lower half of the composition, the producer’s designation on the top left, the name “gingerbreads” written in white font placed in the upper half of the composition, with the image of a label on which additional information is placed on a red background” may be considered as misleading to the customer. The further marketing of the product with this kind of packaging has been banned.

According to the decision on freezing order, any violation of the prohibition to use such designation of gingerbread cookies packaging is subject to order of penalty in the amount of PLN 10,000 for each case. In order to guarantee the proper enforcement of the security, the court enforcement officer under the Court’s decision seized the competitor’s Christmas gingerbread cookies packaging.

It should be pointed out that granting the freezing order takes place when the claim has been substantiated by the applicant but does not yet determine the result of the civil proceedings. The freezing order is to protect the party to the proceedings against further violations of their rights. An application for freezing order may be filed prior to bringing an action, together with the lawsuit or in the course of the proceedings.

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