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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.

07 April 2014

Court considers relationship between national copyright law and national and/or EU design law

In a case involving the design for the ‘Birthday Train’, the Federal Supreme Court has considered the relationship between national copyright law and national and/or EU design law. The court had to decide whether the designer and author of the ‘Birthday Train’ could claim rights under German copyright law.

01 April 2014

Name of famous writer not registrable as trademark for writing instruments

The Federal Patent Court has reversed a decision of the Patent and Trademark Office and ordered the cancellation of the word mark MARK TWAIN for writing instruments. Among other things, the court held that, if the public perceives a mark as a dedication to a famous personality, then it does not function as an indication of origin.

09 December 2013

Amendment to design law - old wine in new skins?

The German legislature has adopted an amendment to the design legislation, which will now be named ‘Designgesetz’ (Designs Act). The new act, which will enter into force on January 1 2014, introduces the term ‘design’ throughout the act, instead of the old term ‘Geschmacksmuster’. Among other things, the new Design Act will change the way in which the validity of a registered German design may be challenged.

05 December 2013

Single representation of 3D mark may suffice to disclose subject matter clearly

In a case involving a 3D trademark representing a chocolate stick, the Federal Supreme Court has overturned a decision of the Federal Patent Court in which the latter had ordered the cancellation of the mark under Sections 3(1) and 8(1) of the Trademark Act. Among other things, the Supreme Court held that a single representation of a 3D mark can be sufficient to represent the subject matter of the mark clearly.

02 December 2013

Supreme Court: use in Germany alone sufficient to establish 'genuine use' of CTM

In a case involving the CTM VOODOO, the Federal Supreme Court, referring to the decision of the ECJ in the ONEL case, has held that genuine use in Germany is sufficient to establish genuine use of a CTM in the Community. However, the court found that use of the company name Voodoo Flyfishing Ltd, even with the sign ® after ‘Voodoo’, did not constitute use of the mark.

28 November 2013

SC makes U-turn on parallel application of trademark and unfair competition law

In a case of first impression, the Supreme Court has re-assessed the parallel application of trademark law and unfair competition law and held - contrary to its previous case law - that, in principle, such parallel application is required under EU law. In doing so, the court clarified the application of the concept of ‘acquiescence’ to trademark infringement and unfair competition claims, as well as the application of the statute of limitation.

11 September 2013

SC considers whether variants of registered mark amount to significant alteration

Following the ECJ’s decision in Rintisch, the Federal Supreme Court has considered whether variants of the registered trademark PROTI amounted to a significant alteration of the mark. Interestingly (and contrary to courts in other jurisdictions), the Supreme Court considers this to be essentially a question of law, and thus decides this question itself when reviewing lower court decisions.

09 September 2013

Federal Supreme Court considers relevant circles in 'reverse product placement' case

In a ‘reverse product placement’ case involving the fictitious beer brand Duff Beer (well known as the favourite drink of Homer Simpson in the cartoon series The Simpsons), the Federal Supreme Court has considered whether the relevant circles consisted of beer drinkers or of fans of The Simpsons.

24 June 2013

Supreme Court considers component part of complex product in design case

The German Federal Supreme Court has issued its decision in a case involving a design representing the outer appearance of a ridge roll to be incorporated in a roof. Among other things, the court held that products such as a roof, which can consist of component parts that are not produced individually and are replaceable, were ‘complex products’ within the meaning of Section 1(3) of the German Designs Act.

21 June 2013

Federal Supreme Court considers principles governing ‘same name’ disputes

The German Federal Supreme Court has held that, where several parties bear the same name, the owner of prior rights in the name cannot prohibit the use of the same name by later users, even if there is a likelihood of confusion. However, later users must have a legitimate interest in such name, and do everything that is necessary and reasonable in order to reduce the likelihood of confusion.

17 May 2013

Kraft Foods successfully defends Milka pack shapes

Kraft Foods has again successfully defended trademark infringement and unfair competition claims by competitor Ritter. The Cologne Appeal Court confirmed the first-instance decision of the Cologne District Court which had dismissed all of Ritter’s claims. Ritter challenged a variant of the ‘double-pack’ Milka chocolate, as well as Kraft’s Lila Tender and Lila Pause products.