Simple form packaging and the risk of misleading a consumer

The proceedings concerned a claim for abandonment of acts of unfair competition consisting in copying the outward appearance of products in a way misleading an average consumer as to identity of the manufacturer. The competitor was marketing sweets wrapped in pieces of paper in white and yellow stripes with a name “krówka” in black and an effigy of a cow in an oval on a white background.

The plaintiff argued that since 1994 he had been producing sweets of the “krówka” type which he was consistently wrapping in characteristic pieces of paper in white and yellow stripes with a brown inscription and a drawing of a cow in a brown frame. The wrapped sweets were then put into yellow-white-dark brown packages (bags) with a name in dark brown and a drawing of a cow in brown and the lower part of transparent foil through which the sweets inside could be seen. The plaintiff would point out that the form and colours of wrappings are recognizable among the consumers and explicitly associated with the plaintiff as a producer.

In the first place, the Appeals Court noted that the protection under article 10 of the Act on Combating Unfair Competition or article 296 of the industrial property law is granted if the wrapping is “distinctive as a whole” and “capable of individualizing a product” and shows that “it comes from a particular entrepreneur”. Moreover, the Appeals Court acknowledged that the required capability to individualize is not tantamount to the need to give a wrapping a particular and exceptional form of above-average aesthetic values. Also wrappings with a simple pattern are capable of individualizing if only they sufficiently distinguish goods and show association with the producer thereof.

In the judgment in question, the Appeals Court did not admit the claim of the plaintiff because in this case there was no risk of misleading a consumer. The wrapping used by the plaintiff is not unique, and so it does not allow to individualize the product offered. The wrappings of sweets of “krówka” type are by many producers composed in a similar way since the white and yellow colour of wrappings is popularly associated by consumers with milk and caramel respectively.

An average consumer who according to the model adopted in the European and Polish judicature is a person adequately well informed, attentive and cautious, fully understand the above and the colour layout alone of the wrapping is not capable of causing confusion as to identity of a producer or origin of a product.

• judgment of the Appeals Court in Białystok of 26th June 2015, file reference number I ACa 1028/14