The Mole Cake War

• Published date: 21 July 2023
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trademark, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Food and Drugs Law
• Law Firm: Havel & Partners s.r.o.
• Author: Ms Karolína Steinerov' and Lucie 'ímov'

What comes to your mind when you hear Mole Cake?

This is how one could sum up a dispute between two well-known producers of baking powder mixtures - the food industry Goliath, Dr. Oetker (as plaintiff), against the Czech David, Labeta (as defendant). And it was the depiction of the dessert in the form of a molehill on the box of Labeta's Crumb Cake that was the imaginary apple of discord.

The question was seemingly simple - can one undertaking deny others the right to use a depiction of a cake in the shape of a spherical cap?

The Regional Court in Hradec Kr'lové was of the opinion that the answer is "yes". In the first instance, the Court upheld Dr. Oetker's action and prohibited Labeta from marketing the Crumb Cake in packaging which, on the front, presented a depiction of a cake in the shape of a spherical cap or, alternatively, a spherical cap with a cut. (For those of us who are not familiar with mathematical terms - a molehill can be expressed mathematically as a spherical sap; Wikipedia refers to a portion of a sphere cut off by a plane.)

The court of first instance found that Dr. Oetker and Labeta are direct competitors in the market for powdered foodstuffs and that the packaging of Labeta's Crumble Cake, with its depiction of a spherical-shaped cake, gives rise to a likelihood of confusion with and parasitises on the reputation of Dr. Oetker's Mole Cake, which has become characteristic of the plaintiff.

However,the High Court in Prague took the opposite view and reversed the judgment of the court of first instance. It concluded that it was not the representation of the cake in the shape of a spherical cap that had become characteristic of the plaintiff, but that it was only the name of the cake of that shape, Mole Cake (which is also protected by a trademark). However, the packaging of the Crumb Cake does not contain the phrase Mole Cake, and it also differs in other elements - the colour of the background, the font and colour of letters, and the logo. According to the conclusion of the appellate court, the packaging of Crumb Cake differs from the packaging of Mole Cake to such an extent that the average consumer will not confuse them and will easily distinguish them from each other. The High Court...