Lindt infringes vegan chocolate patent in Germany

Patents on the composition or manufacture of foodstuffs are rarely the subject of patent disputes. Patents for sweets or chocolate are even less likely to find their way to the patent courts. In one of these rare patent disputes, Düsseldorf Regional Court has now prohibited the Swiss market leader Lindt & Sprüngli from using a certain composition for vegan chocolate in Germany (case ID: 4b O 58/23).

Oat milk wrangle

The dispute concerns European patent EP 3 685 673, which belongs to Katjes Fassin. The patent protects a recipe using hydrolysed oat milk. Through hydrolysis, the long-chain oat milk molecules are broken down to make the chocolate creamier.

In the course of the dispute, officials visited Lindt’s German plant in Aachen to secure evidence. The Düsseldorf judges under presiding judge Daniel Voß ruled that Lindt may no longer use the relevant composition and manufacturing process or sell the relevant chocolate in Germany.

This mainly affects chocolate containing oat milk from the Hello product range. However, according to Lindt, it has since launched vegan chocolate without oat milk, which is thus not affected by the ruling. Nevertheless, Katjes would first have to enforce the judgment in order to stop the sale of Lindt products in Germany. Lindt has since announced that it will appeal.

In the meantime, Katjes had launched its own vegan chocolate on the market under the name “Chocjes”. The company does not sell the product via their own platform.

Lindt battles on at EPO

The infringement action in Germany brought by Katjes is currently the only dispute between the two opponents before civil courts in Europe. However, they are also facing each other at the EPO, where five competitors of Katjes have filed an opposition against the granting of EP 673. In addition to Lindt, which is represented by Maiwald, the opponents are the Swiss Coop Cooperative (represented by Meyerlustenberger Lachenal Froriep), Barry Callebaut (represented by ter Meer Steinmeister & Partner), Nestlé (represented by its own in-house department) and Casa Luker (represented by Latzel-IP).

In January, the EPO Opposition Division rejected the oppositions and upheld the patent but the opponents filed an appeal with the Boards of Appeal. Bird & Bird is acting for Katjes at the EPO; the mixed practice’s patent attorneys previously filed EP 673 on behalf of the company.

Bird & Bird’s first time for Katjes

In the infringement proceedings, Katjes’ general counsel, Ulf Dörner, brought in a mixed team from Bird & Bird. Christian Harmsen led the team with patent attorney Michael Alt in the lead for the technical part. Both are partners. Counsel Bastian Selck completed the lawyer team. Stefan Gross provided support on the patent attorney side. It is the first time Katjes has retained on Bird & Bird’s paten team – the company tends to face soft IP issues rather than patent litigation. For soft IP issues in Germany, Katjes works with Honyg ROKH Monegier.

Lindt also collaborated for the first time with Mayer Brown partner Christoph Crützen. Associates Alexander Balan and Benjamin Beck provided support. Lindt’s head of IP Livia Andermatt also instructed a patent attorney duo from the Munich IP firm Maiwald.

The two patent attorneys, Matthias Hoffmann and Derk Vos, are also representing Lindt in the opposition at the EPO. More recently, however, Lindt has mainly instructed smaller German or Swiss patent attorney firms for its few patent applications at the EPO.