[co-author: Thilo Ortgies]
The Munich District Court I ruled by judgment of 3 December 2020 (17 HK O 5744/20) that an advertisement of a manufacturer of fish products with a handsome older model or "best ager" in front of a maritime backdrop was not a misleading imitation of the well-known advertising figure "Captain Iglo". On the one hand, according to the court, it would be obvious to advertise fish products by using maritime motifs such as a coastline, sky and weather. On the other hand, the court stated that there were also considerable differences between the opposing advertising concepts.
A manufacturer of fish products based in the northern German city of Cuxhaven advertised its products with a well-dressed elderly gentleman, eating canned fish in front of the city's coastline. The model, with a thick white full beard, was dressed in a grey three-piece suit with a so-called "Elblotsen" (Elbe pilots) cap and a silk scarf. A well-known Cuxhaven lighthouse was clearly visible in the background.
The plaintiff, a Hamburg-based manufacturer of frozen products, considered the defendant’s advertisement to be a misleading imitation of its own advertising concept including its iconic "Captain Iglo" character, which would lead to likelihood of confusion and therefore be unfair advertising pursuant to section 4 no. 3 lit. a) of the German Act against Unfair Competition (UWG).
The Munich District Court I rejected the claims.
Firstly, the court emphasized that general motifs that were in public domain needed to be available for competitors. It stated that the maritime advertising motifs used by the defendant did not constitute a misleading imitation of the plaintiff's advertising concept. It was obvious for manufacturers of fish products to depict their products in an advertising context with coast and sea motifs.
In addition, the court held that there were far-reaching differences between the two characters in the advertising. While "Captain Iglo" was wearing a blue suit with a white turtleneck, the defendant's character was dressed in a grey suit with a plaid vest, tie and silk scarf. Also, unlike "Captain Iglo", the defendant's character did not wear a captain's cap, but an "Elblotsen" cap, which, according to the court, was widely worn along the Northern German coast. All this would lead the consumer not to recognize a sailor in the defendant's advertising figure, but "a distinguished, well-off gentleman in an elegant three-piece suit with a silk scarf". The mere fact that both figures wore a thick, mottled grey beard did not cause any likelihood of confusion. In the court's view, it was common knowledge that advertising with "best agers" was currently extremely popular and widespread.
Finally, the court stated that the clearly visible name of the defendant and the fact that the Cuxhaven lighthouse in the background clearly distinguished the contested advertisement from the plaintiff's advertising concept.
In its decision, which is not yet final, the Munich District Court I clarifies that even advertising that enjoys widespread recognition could not expect to claim general protection against any similar advertising. This applies, in particular, in cases where the manufacturer's name is clearly legible and the contents of the advertisement are closely related to the product.