The stand-up pouches from Capri Sun: handy, but not (any longer) protected

Who doesn’t know them, Capri Sun’s iconic standing bags. Since 1969, Capri Sun has been packaging its fruit juices in flexible, aluminium-coloured standing bags. The stand-up bag has many advantages. The material ensures that the fruit juice remains cooled for a long time, the shape makes it easy to carry and prevents spillage. The only disadvantage is that the high functionality of the stand-up bag is precisely a dealbreaker for trademark protection.

In 1997 Capri Sun had the shape of the stand-up bag registered as a trademark. On the basis of this shape brand, Capri Sun initiated proceedings against Riha, a producer of fruit juices, among other things – you guessed it – standing bags. In response, Riha filed an application for nullity of the shape trademark. Both the court and the Court of Appeal of Amsterdam agreed and declared the shape trademark null and void. The reason: the form is so functionally/technically determined that no trademark protection can be granted to it (the ‘technical exception’). The Supreme Court also ruled against Capri Sun. In the judgment, the Supreme Court discusses the technical exception in detail. If there are alternatives with which the same technical result can be obtained, this does not mean that the technique exception does not apply.

Capri Sun had also bet on another horse: slavish imitation. But that route, too, is a dead end. The Supreme Court is repeating the Lego/Mega Brands rule. If no equivalent alternatives (in terms of soundness and usefulness) are reasonably possible to deviate from the form and thus avoid confusion, it may be sufficient to distance oneself from the colour scheme andmentioning of the name. In other words: a deviation in the shape of the stand-up bag is not necessary, as long as the print deviates sufficiently.

The Supreme Court is convinced that there are no reasonable alternatives of equal value for the stand-up pouches. For Riha, this means that it can pack its fruit juice in a standing bag: it deviates sufficiently and visibly from the Capri Sun’s packaging with its chosen colour scheme and name.

Lisanne Steenbergen

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