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13 October 2015

Federal Supreme Court issues first decision in 'red colour' case

The Federal Supreme Court has issued its first decision in the long-running dispute between Deutscher Sparkassen- und Giroverband (DSGV) and the Santander Group over the red colour mark. Among other things, the court held that the infringement proceedings should not be suspended while the cancellation action against DSGV’s colour mark was pending. The decision covers only one aspect of the case, and the court still has to rule on the cancellation action.

01 October 2015

Federal Supreme Court substantiates relation between word marks and 3D marks

The Federal Supreme Court has held that there was no likelihood of confusion between the 3D shape of Lindt’s gold-wrapped chocolate bear and the word mark GOLDBÄREN ('gold bears'), which protects Haribo’s well-known fruit gums. The court also held that Lindt’s chocolate bear did not constitute an unfair imitation of the GOLDBÄREN fruit gums.

28 September 2015

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

The Regional Court of Karlsruhe has held that use of the original Hard Rock Cafe logo for the operation and promotion of a bogus restaurant in Heidelberg violated German unfair competition law. The case is significant because the Heidelberg restaurant started operating in the area before the official Hard Rock Cafe group entered the German market and protected its rights in the country.

25 September 2015

Court considers likelihood of confusion between word marks using same letters in different order

The Federal Court of Justice has considered the likelihood of confusion between two word marks consisting of the same three letters, albeit in a different order (IPS and ISP). Among other things, the court concluded that the pronunciation of the marks might lead the public to believe that the IT services provided under the marks derived, at the very least, from economically linked undertakings.

21 September 2015

Federal Supreme Court considers acquired distinctiveness in Nivea Blue case

The Federal Supreme Court has reversed a decision of the Federal Patent Court in which the latter had cancelled Beiersdorf’s single colour mark, called ‘Nivea Blue’, on the ground that the degree of public recognition of the mark (58%) was not sufficient. Among other things, the Supreme Court held that a degree of recognition of over 50% was sufficient to show acquired distinctiveness.

18 September 2015

Germany

The following are enforceable in Germany: German trademarks, Community trademarks (CTMs), German trademarks based on international registrations, names and non-registered trade designations.

18 September 2015

Community trademark litigation before the European courts

Community trademarks are subject to court proceedings at both national and EU level. National Community trademark courts designated by EU member states have exclusive jurisdiction over infringement actions relating to Community trademarks, while the General Court and the European Court of Justice rule on administrative decisions relating to Community trademarks issued by the Boards of Appeal of the Office for Harmonisation in the Internal Market (OHIM).

17 July 2015

Duff Beer launches in response to counterfeits but challenges in Europe remain

The challenge of protecting fictional brand names has previously been discussed in WTR. An oft-used case study is the fictional Duff Beer, which features in TV show The Simpsons. The show’s owner, 21st Century Fox, has faced numerous companies launching Duff Beer in the real world and this week announced it was entering the beer market in Chile, partly as a bid to fight off third-party use of the brand. The company also announced that it plans to rollout Duff Beer in Europe, but a number of challenges lie ahead.

05 May 2015

Good news for brand owners: parody exception does not justify registration of trademark

The Federal Court of Justice has upheld a decision of the Higher Regional Court of Hamburg ordering the owner of a mark containing the word 'Pudel' (German for 'poodle') and the image of a jumping poodle to agree to the deletion of the mark. The mark was found to be detrimental to the reputation of a well-known mark containing the word 'Puma' and the image of a leaping feline. The court stated that the defendant could not rely on the parody exception.

11 December 2014

Germany

Design law in Germany consists of the Designs Act, harmonised to a substantial degree with the EU Designs Directive (98/71/EC) and the EU Community Designs Regulation (6/2002), which protects registered and unregistered Community designs. German design registrations are administered by the designs unit of the German Patent and Trademark Office located in Jena, Germany; registered Community designs are administered by the Office for Harmonisation in the Internal Market in Alicante, Spain.

31 July 2014

Federal Supreme Court considers standards of distinctiveness and descriptiveness

The Federal Supreme Court has confirmed a decision of the Federal Patent Court in which the latter had invalidated the German part of the international trademark HOT. Among other things, the court stated that, when a trademark has several meanings, all of which are descriptive of the registered goods, the interpretative effort resulting from these different meanings is not, as such, sufficient to give the mark distinctive character.

24 July 2014

Federal Supreme Court considers requirements for cancellation of mark on absolute grounds

In cancellation proceedings against the mark SMARTBOOK, the Federal Supreme Court has held that the existence of absolute grounds must be established at the time of application, and that descriptive use of the mark after the filing date or the registration date does not prove that the mark was descriptive at the time of application.

09 May 2014

Lindt successful on appeal in chocolate bear case

In Haribo v Lindt & Sprüngli, the Court of Appeal of Cologne has reversed a decision of the Cologne Civil Court in which the latter had found that Lindt's gold-foil wrapped chocolate bear infringed Haribo's German word mark GOLDBÄREN ('gold bears'). This is the first case in which the German courts have had to decide whether a word mark can be infringed by the three-dimensional shape of a product.

14 April 2014

Federal Supreme Court provides guidance on acquired distinctiveness in TEST case

The Federal Supreme Court has reversed a decision of the Federal Patent Court finding that the mark TEST had acquired secondary meaning for magazines and related publishing services. Although the Federal Supreme Court held that a degree of awareness of 43% among the public was not sufficient to find that the mark had acquired distinctiveness, it was not prepared to state a fixed percentage for acquired distinctiveness.

10 April 2014

Cologne Appeal Court considers scope of protection of chocolate bars’ trade dress

The Cologne Appeal Court has issued its decision in a case brought by Mars Inc against Turkish chocolate maker Şölen AŞ concerning Mars’ Snickers and Bounty chocolate bars. While the court dismissed Mars’ claims that the defendant had copied the Bounty packaging and infringed its 3D mark for the Bounty chocolate bar, it granted Mars’ claim that the defendant had imitated the Snickers packaging.