Legal certainty in the towel dispenser case

Under the Union trademark TORK, the company Essity sells various hygiene products such as paper towel dispensers and paper towels for filling said dispensers. Essity considered the filling of paper towel dispensers sold under the brand TORK with paper towels from third-party manufacturers to be a trademark infringement. In the so-called towel dispenser case, a previous ruling by the Munich Higher Regional Court (OLG) was confirmed by a landmark decision of the German Federal Court of Justice (BGH) (May 19, 2022, Case No. I ZR 142/21).

As a result, the OLG Munich and the BGH were of the opinion that filling a paper towel dispenser with towels from a manufacturer other than the paper towel dispenser does not constitute a trademark infringement. This was justified by the view, that users have become accustomed to basic devices "whose operation requires the use of material that does not come from the manufacturer of the basic device. The public therefore distinguishes between the marking of a device for dispensing goods and the marking of the dispensed goods themselves. A marking applied to the device will only be referred to the dispensed goods if there is a specific reason to do so. Such special circumstances were not present in the case in dispute."

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