Lawsuit in regards to the yellow triangle

10.02.2016 15:54 | Jamara-News

UPDATE 03.03.2016: As previously reported, Caterpillar has withdrawn the injunction (see update 02.11.2016, 02.12.2016). The main issue action before the Hamburg District Court has not yet been withdrawn by Caterpillar.

 

JAMARA E.K. sold two RC Toy Diggers for Children under its own brand JAMARA and gave them the reference name 517 J and 317 J. On the Toy Digger and packaging the name was presented with a yellow triangle.

When allocating the name the Swabian company thought of no evil and added a yellow triangle to loosen the perspective. According to the Swabian motto "Schaffa-Schaffa-Häusle-baua", which translated means „work, work, build a house“ (Build = House = Roof, which in turn acts as a triangle and yellow fits to the vehicle), the triangle was incorporated.

The Swabian "specialty" was developed by the Toy manufacturer without Caterpillar in mind. The billion company sees in the use of the yellow triangle an infringement of its trade mark, in particular…


Caterpillar maintains that Consumers would believe the product coming from Caterpillar because of the yellow triangle used. Consumers would immediately link Construction Vehicles and Toy Digger to Caterpillar; the opinion of the American company. The curiosity being that the European trademark registration of the yellow triangle was rejected by the European Communities in 2006 because in the opinion of the Auditors a yellow triangle does not have any distinctiveness (!).

At the moment the Hanseatic Judiciary and Customs are dealing with the "Swabian specialty". The OLG Hamburg (Az. 3 U 57/15) must take care of the issue in regards to the "trademark infringement". Due to being overworked the OLG might not proceed the case until 2016. The problem resulting out of the delay is that the toy container is held by Customs (WH 2021 Hauptzollamt Hamburg, Az SV 1203 B - - 48/15).

ADDENDUM: Caterpillar rejected Jamara´s proposal to completely removing the yellow triangle on the Digger and cardboard packing. Caterpillar insists on destroying all products; if this is environmentally friendly in the age of climate change and fits together with the advertising promises of Caterpillar everyone must answer for themselves.

Video (German TV - a.tV): https://www.youtube.com/watch?v=iJQe-atORmo&feature=youtu.be#t=17m04s

UPDATE 02.11.2016 / 12.00pm: Due to the course of the hearing in front of the Higher Regional Court of Hamburg Caterpillar revoked the injunction this morning!

UPDATE 03.03.2016: As previously reported, Caterpillar has withdrawn the injunction (see update 02.11.2016, 02.12.2016). The main issue action before the Hamburg District Court has not yet been withdrawn by Caterpillar.

 

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