Communication Review Board touches on trade dress infringement

The Communication Review Board (CRB), the quasi-judicial panel which reviews advertising material and implements the Code of Advertising and Communication – the self-regulatory instrument of the Greek advertising industry – recently handed down a decision addressing trade dress infringement issues.

In Decision 4491/2011 the CRB ruled that the overall appearance of the butter products Horio Soft (salted), Horio Soft (unsalted) and Horio Light was similar to the overall appearance of the butter products Lurpak Soft (salted) and Lurpak Soft (unsalted).

The similarity resulted from a combination of various trade dress elements: 

• The curved shape of the Horio products. 
• The wavy device on their upper and side parts. 
• The red, dark blue and light blue colours of the three Horio products, respectively.

As a result, the CRB took the view that consumers, who would see the Horio and Lurpak products due to their frequent display and commercialisation in supermarkets, might be misled as to the origin of the products. Moreover, the CRB ruled that the advertising used for the Horio products, which was similar to that used for Lurpak’s products, misappropriated Lurpak’s reputation.

Although the relevant provisions of the code on the protection of brand reputation and confusing similarity are not identical to those set out under Greek trademark law, their rationale is essentially the same. Moreover, the advertiser’s prism, under which the CRB reviews cases, may prove to be stricter than that of a judge.

This decision, taken in conjunction with the CRB’s willingness to consider issues of trade dress infringement, may render it an attractive dispute resolution forum for brand owners, particularly since the industry follows its non-binding decisions.