The image of a man with a beard and hat cannot be claimed as exclusive to the brand. Not even from Käpt’n Iglo, the Nordic version of Captain Findus.
The Munich Regional Court (Bavaria, Germany) has thus dismissed Iglo GmbH’s suit against competitor Appel Feinkost for alleged unfair business practices and misleading advertising of fish products. Insight.
Frozen fish, the parties involved.
Iglo GmbH is a Hamburg-based frozen food industry. It belongs to the Nomad Foods group, which owns a number of brands representing the famous character known in Italy as Capitan Findus and in Germany as Käpt’n Iglo. (1) The Highlander of the North Seas has indeed featured in advertisements for breaded and frozen fish sticks since 1967 in the UK, since 1985 in Germany.
Appel Feinkost GmbH & Co.KG in turn produces and markets seafood products. It belongs to the Heristo Group and is based in Cuxhaven (Lower Saxony, Germany. At the mouth of the Elbe River on the North Sea). And it was sued by Iglo for alleged misleading advertising and unfair competition. For using – in its advertising campaign – graphic elements ‘easily confused‘ with Käpt’n Iglo. (2)
Captain Findus, beard and hat not enough
The Munich Regional Court – 17th Chamber of Commerce, which specializes in unfair competition – rejected the accusatory theories. After pointing out the differences between Captain Findus and the star of Appel’s advertising campaign:
– the sea, the coast, the sky certainly cannot be the subject of exclusive claim. Moreover, the defendant’s advertisement is distinguished by the presence of the Cuxhaven lighthouse in the background, which is easily recognizable to German consumers,
– the male figure used by Appel is not that of a captain or even a sailor. Rather, a ‘distinguished and well-to-do gentleman in an elegant three-piece suit with a silk scarf,’ white turtleneck and plaid vest,
– hat is typical of the coastal areas of northern Germany. A male hat does not make a captain, although Elbe River pilots also used to cover their heads with the so-called Elblotsen-Mütze,
– thick, manicured beards in shades of gray, and more generally the use of good-looking figures of mature age (so-called Best Agers), is a growing advertising trend. In line, moreover, we add, with the decline in the demographic index and the rise in the average age in the (increasingly) Old World,
– ‘Mr. Appel‘ then presents himself clearly, without misleading consumers about the identity of the products advertised.
Competition, the delicate trade-off
Competition is expressed in the delicate trade-off between the protection of industrial property rights and freedom of initiative. The Munich Court therefore ruled that the German Law against Unfair Competition(Gesetz gegen den unlauteren Wettbewerb, UGW) was inapplicable to the case. (3) Which applies in Germany the European directives on unfair business-to-consumer commercial practices, (4) misleading and comparative advertising. (5)
In fact, an unfair trade practice takes place when an operator – in offering ‘imitation’ goods and services, or otherwise similar to those of a competitor – deceives the consumer as to their commercial identity. And this assumption does not exist where the confusion turns out to be concretely ‘vermeidbare,’ that is, avoidable. (5)
Interim conclusions
The court of first instance dismissed the appeal by Iglo GmbH against Appel Feinkost GmbH & Co.KG, in case Az.17 HK O 5744/20. However, the judgment of the Munich Regional Court is not final, and the plaintiff may appeal to the Munich Higher Regional Court(Oberlandesgericht München).
European consumers-according to a ‘biased’ study by the British Brand Group (2017)-would be misled in one in five cases by mistaking ‘imitation’ products for ‘original’ ones (6.7). Moreover, purchasing choices are determined by a variety of factors, including value for money and sustainability of productions.
Beard and hat or fishing sustainability?
Fishing systems that are respectful of marine habitat and tracked with blockchain technology are, in the writer’s humble opinion, worth more than the beard and hat of the advertising testimonial.
The originality of the offer can thus be expressed in the facts, in line with #SDG14(Life Below Water) and #SDG12(Sustainable Consumption and Production). And the ISO 20400:2017 guidelines for sourcing from sustainable supply chains are still waiting for responsible industries dedicated to implementing them. Green or Blue, without greenwashing.
Dario Dongo and Marina De Nobili
Notes
(1) Nomad Foods’ best-known brands include Iglo (in the German, Belgian, Dutch, Portuguese, and Austrian markets), Findus (in Italy, France, Spain, and Scandinavian countries), and Birds Eye (Great Britain and Ireland). Continuously expanding. Nomad Foods acquired Aunt Bessie and Goodfella’s in 2018. V. https://www.nomadfoods.com/our-brands/
(2) Appel Feinkost GmbH & Co.KG. The incriminating advertisement at https://www.appel-feinkost.de/
(3) Gesetz gegen den unlauteren Wettbewerb, UGW, 2010 https://www.gesetze-im-internet.de/uwg_2004/BJNR141400004.html. In English at https://www.gesetze-im-internet.de/englisch_uwg/englisch_uwg.html. V. Section four, paragraph III, subparagraph ‘a’
(4) Dir. 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market. Consolidated text as of 9/25/09 at https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A02005L0029-20050612&qid=1611066315156
(5) Dir. 2006/114/EC concerning misleading and comparative advertising. https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32006L0114&qid=1611066466807
(6) Tim Holmes (2017). The sincerest form of flattery. Acuity Intelligence Ltd, https://www.britishbrandsgroup.org.uk/2017/08/16/the-sincerest-form-of-flattery/
(7) Which? Spot the difference: big brands or supermarket equivalent? 12.4.13, https://press.which.co.uk/whichpressreleases/spot-the-difference-big-brands-or-supermarket-equivalent/
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in law in Trento, she follows a master's degree in food law at Roma Tre. She is passionate about food and wine, she is between culture and tradition.
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