As the writer is a baker’s daughter, the following decision of the District Court in Antwerp caught my attention. It underlines the importance and added value of a registered trade mark in the Benelux in addition to the already broad copyright protection for graphic designs.

The initiator of the Belgian proceedings is Konditori, a trade mark proprietor of the figurative mark (above left), registered in classes 30 and 35.

As the trade mark implies, Konditori is a traditional bakery and pastry shop, based in the centre of Antwerp, focusing on a ‘back to the true basics of roots’ baking tradition. From February 2014 until 23 May 2014 an unnamed natural person (“Mr. X”) was an intern at Konditori and the parties intended to convert the internship into a permanent contract of employment.

Instead of working as a permanent employee at Konditori, Mr. X, however, decided to set up his own traditional bakery with the above right logo applied on his bags, labels, shop, interior and on his website.

Konditori believed that Mr. X was infringing its registered trade mark and copyright when using the stylistic croissant with and without the addition of “PUUR BROOD” and was thus acting unlawfully towards Konditori on the basis of unfair commercial practices.

The Belgian District Court considered that only the visual similarities are important for the possible trade mark infringement in the case in question. It stated that conceptual similarities must not be taken into account, since the croissant is a frequently used image for (traditional) bakeries and taking into account the conceptual similarities would therefore lead to an unwanted monopoly. The Court was of the opinion that conceptual similarities and aural differences between the two logos were compensated by the graphic similarities of the specific designs of the croissants in question.

The District Court of Antwerp found the Defendant’s mark similar enough to cause a likelihood of confusion, because of the imperfect image the average consumer keeps in mind of the trade marks and the similar most dominant, distinctive and influential elements of the simplistic croissants. Moreover, Mr. X was using the trade mark in the same manner and in the same places in his store. It held that the goods and services are similar and found that there is no difference between the customer of a pastry shop and the customer of a traditional bakery. Therefore the Court decided that Konditori succeeded in its trade mark claims.

Interestingly however was the narrow scope of copyright protection for the simplistic croissant. The Court found that on the one hand the croissant is highly important for the distinctive character of the trade mark at stake, but on the other hand the croissant is too simple for copyright infringement. The Court found that the idea of a “pure, stylistic, simple and plain” croissant is free of copyright protection and only the geometric shapes and sleek modern design and lines are protected by copyright. Because Mr. X designed a croissant applying the pure, stylistic, simple and plain unprotected style, he did not infringe any copyright vested in Konditori, since the croissant is not separated in 5 geometric shaped facets and the croissant of Mr. X is less half-moon shaped.

In conclusion, the District Court of Antwerp underlines the important and decisive role of a registered Benelux trade mark, to deter competitors and former interns from the market. While the scope of copyright protection was not sufficient in this case for the Claimant, the registered trade mark enabled it to prevent use of a simplistic designed croissant for bread and pastry shops.