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Monday, 28 January 2013

German Moo Coup: the tale of Paula the cool Kuh

The word "cool" was certainly in vogue last year, after a British judge used the word in court.  This use was picked up by the media, which were apparently astonished to learn that judges speak the same language that they do [rather better, in fact, since they don't blather on about "patenting a trade mark", notes Merpel].  Anyway Sean Gilday, trainee patent attorney at Bristol-based Page Hargrave and occasional contributor to the blogosphere, offers an interesting reflection on the penetration of the word "cool" into the very heart of Continental Europe.  Writes Sean:

"As January winds down, and the excesses of Christmas fade along with the painful memories of post-New Year detoxification, this may be is a good time to look back with a cool head at the year just passed.

A lot of cool stuff happened in 2012, but just who was it who introduced the concept of “cool” to the European courts? Okay, I’ll admit that this is rather like one of those questions on QI that are designed to catch people out. I can be sure that quite a few IP practitioners and scholars reading this blog just set off the buzzer by saying "His Honour Judge Birss QC". Well, I can tell you that’s not correct, so deduct an appropriate number of points from your score.

Registered by Dr Oetker
Ironically, I only learned about the truth of the matter from the judge himself. In December last year, after a CIPA induction day, I walked down to the Queen Mary campus at Smithfields to attend the QMIPRI Herchel Smith Lecture 2012 with its keynote speech by Judge Birss on the topic of “Bringing Cool Back”. It was in his opening statements that he confessed that, while it is a common misconception that he was the first to use the criterion of coolness as a grounds of differentiation in the well known Apple v Samsung judgment of 9 July 2012 (noted by the IPKat here), it simply isn’t true.

Favoured by Aldi
Judge Birss recalled a case before the Düsseldorf Landgericht (Regional Court) that had been brought to his attention by a German colleague. The case was an infringement action brought by German food manufacturer Dr Oetker against supermarket chain Aldi. Both parties produced a dairy-based pudding sold in a packaging showing an accompanying cow mascot: Dr Oetker had marketed its pudding with the cow “Paula” since 2006, and in the autumn of 2011 Aldi began to market its pudding with a cow called “Flecki”. Dr Oetker claimed that “Flecki” infringed the 2005 registered Community design for “Paula”.

In making their decision in the first round of judgments on 1 March 2012 (the case has since been appealed), the court took into account the various differences between the two cows: one had stripes, the other had spots, etc. Standard analysis, until you come to the final paragraph of the judgement:
“Bei der Kuh „Flecki“ handele es sich um eine eher magere, weiße Kuh mit Kuhglo- cke, die vor der Kulisse eines Bauernhofes vom Rand her ins Bild schaue und bei der Produktgestaltung nicht im Mittelpunkt stünde. Im Gegensatz dazu stehe „Paula“. Diese zeichne sich durch besondere Individualität aus. Ihre stilisierte Zeichnung und ihre „Coolness“ suggerierende Sonnenbrille stünden im Mittelpunkt des Produktes, ohne dass ihr weiteres Umfeld eine relevante Rolle spiele.”
Eaten by Merpel ...
For non-Deutschsprechende [that's the German for "German-speaking", says Merpel] readers, the analysis compares the two cows more in terms of their individuality. The cow Flecki is a skinny cow with a cow-bell, who stands shyly on one side of the box. Paula on the other hand is stylised, stands in the centre of the box and has “suggestive sunglasses” which, crucially, give Paula “coolness”.

Naturally, Judge Birss confessed, he was unaware of this relatively esoteric case when rendering his judgment in Apple v Samsung, and it’s likely an instance of multiple discovery. However, the credit of being “the first” must, in this case, go to the Düsseldorf Landgericht. How cool!"
IPKat team member Jeremy observes that the use of the word "cool" in its modern context of "calm", "composed", "unruffled" or "sophisticated" has quite a pedigree. Charles Dickens uses the word in this context several times in the Pickwick Papers (1836-7) and Wilkie Collins employs it in The Moonstone (1868). He assumes that it would have been in common parlance before then, maybe by a long way. Does this weblog have a corps of erudite readers who might be able to trace "cool" to its source?

Cow pie here

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