Use of Hard Rock Cafe logo by bogus restaurant held to violate unfair competition law

Germany

The Regional Court of Karlsruhe decided on July 29 2015 that use of the original Hard Rock Cafe logo for the operation and promotion of a bogus restaurant in Heidelberg, Germany, under a name and logo identical to those of the Hard Rock Cafe group violates German unfair competition law.

The court found the use of the logo to be misleading for consumers and ordered the Heidelberg restaurant to use the logo only in connection with a clarification showing very clearly that the restaurant in Heidelberg does not belong to the official chain and has no connection to it whatsoever. The Heidelberg restaurant has also been found liable to pay damages to the Hard Rock Cafe group, the amount of which still needs to be determined.

The German Federal Supreme Court had already decided in August 2013 that the sale of unofficial Hard Rock Cafe merchandise in the restaurant in Heidelberg violated the Hard Rock Cafe group's trademark rights and was in breach of German unfair competition law. The Supreme Court had ruled that the Heidelberg restaurant was liable for damages for selling merchandise under the Hard Rock Cafe name and prohibited such sales immediately. The Supreme Court had then referred the case back to the lower instance court in Karlsruhe to decide whether use of the Hard Rock Cafe logo in connection with the operation and promotion of the restaurant in Heidelberg also violated German law. The current decision has now replied in the affirmative.

This case is significant because the Heidelberg restaurant was operating in the area before the official Hard Rock Cafe group entered the German market and protected its rights in Germany. The court in Karlsruhe found, however, that the confusion that use of the logos was causing among customers, who were being duped into thinking that they were visiting an official Hard Rock Cafe, was to be given more weight than the fact the restaurant in Heidelberg had been operating in Germany before the official Hard Rock Cafe group. The Heidelberg restaurant was therefore ordered to clarify its non-relationship with the official and highly reputed Hard Rock Cafe chain so to ensure that customers are no longer misled.

Morten Petersenn, Christina Zickler and Eva Vonau, Hogan Lovells, Hamburg

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