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DE/EU Refilling with goods from another producers – trademark infringement?

"The Federal Supreme Court has made a ruling on whether the refilling of a container with goods from another manufacturer constitutes a trademark infringement in Germany.

Both the Munich Regional Court and the court of appeal dismissed the action for infringement. The decisive factor for the decision was the understanding of the public and the consumers’ expectation that there were basic devices for a large number of goods whose operation required the use of material which did not originate from the manufacturer of the basic device.


Consumer expectations and understanding of the target public are decisive

paper towelWith its ruling, however, the Federal Supreme Court (Bundesgerichtshof, BGH) demands an even more detailed examination of the understanding of the target public and consumer expectations. The Court recalls the guarantee of origin as the main function of a trade mark and that it is impaired if it is difficult or impossible for a normally informed and reasonably observant consumer to ascertain whether the goods or services offered originate from the proprietor of the trade mark or an undertaking economically linked to it, or rather from a third party.

The Court of Appeal must therefore re-examine the understanding of the target public with regard to the identification of towel dispensers with the trade mark and a possible link to the content. In particular, it must be ascertained whether the consumer himself fills up the product and whether the refill itself bears a recognisable mark."

The central issue of this judgment is a trademark dispute over the Tork brand paper towel dispenser systems and matching paper towels on reels as refills for the catering, industrial and healthcare sectors. The defendant operates a wholesale business with hygiene products and offers, among other things, paper towel rolls as refills with the note “also suitable for Tork dispensers”. The defendant’s refill product is not marked with a trademark.