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26 March 2013

ECJ sees red as German court refers questions on colour mark

The German Federal Patent Court has referred various questions concerning the inherent registrability of the colour red to the ECJ for a preliminary ruling. The Deutscher Sparkassen- und Giroverband eV - the association of German savings banks - has been using the colour red for over 50 years. The case raises fundamental questions concerning the registration of colour marks.

25 January 2013

Court considers likelihood of confusion between 3D product and word mark

In Haribo GmbH v Lindt Spruengli AG, the Regional Court of Cologne has found that Lindt's gold-foil wrapped chocolate bear infringed Haribo's German word mark GOLDBÄREN ('gold bears'). Among other things, the court agreed with Haribo’s argument that 'Goldbär' ('gold bear') was the obvious denomination that consumers would use to name Lindt's chocolate bear.

09 January 2013

Federal Supreme Court asks ECJ for clarification on unregistered Community design rights

The German Federal Supreme Court has referred six questions, including a number of sub-questions, to the ECJ for a preliminary ruling concerning the establishment, validity and enforcement of unregistered Community design rights. Responses to some of the questions will also have an impact on the law governing registered Community designs and Community trademarks.

15 November 2012

Supreme Court provides further guidance on test for infringement of Community design

The German Federal Supreme Court has considered a case where differing representations of a Community design for a wine decanter were being asserted against a later design. Among other things, the court held that a registered Community design representing the appearance of the whole of a product does not, per se, provide protection for only part of the product.

23 May 2012

Deutsche Bahn’s mark cancelled for being descriptive

The Federal Patent Court has confirmed a decision of the German Patent and Trademark Office in large parts, stating that Deutsche Bahn AG’s mark S-BAHN was descriptive for a wide range of goods and services. Among other things, the results of the market surveys provided by Deutsche Bahn did not convince the court that S-BAHN would be perceived as an indication of origin.

21 May 2012

Frankfurt Appeal Court: still no likelihood of confusion between chocolate bunnies

In the long-running dispute between Chocoladefabriken Lindt & Sprüngli AG and Riegelein, the Frankfurt Appeal Court has held, for the third time, that there was no likelihood of confusion between Lindt’s Golden Bunny and Riegelein’s Easter bunny. The court again found that the differences between the word elements ‘Lindt Goldhase’ and ‘Riegelein Confiserie’ were sufficient to avoid confusion.

07 May 2012

Federal Supreme Court: defendant has burden of proving that goods are genuine

The German Federal Supreme Court has issued two important decisions concerning the burden of proving that products are genuine and the doctrine of exhaustion of trademark rights. These decisions could represent a major boost for trademark owners in their fight against counterfeiting and parallel imports.

13 March 2012

Federal Supreme Court refers questions on genuine use to ECJ

In two separate, but related, cases, the German Federal Supreme Court has referred several questions on genuine use to the ECJ for a preliminary ruling. Both cases involved use of a registered mark in a slightly different form. Among other things, the court sought to ascertain whether Paragraph 26(3)(2) of the German Trademark Act contradicts Article 10(2)(a) of the Trademarks Directive.

05 December 2011

Federal Patent Court considers new type of trademark

The German Federal Patent Court has delivered a judgment regarding the registrability of a new type of trademark: a 'variable figurative' mark. Among other things, the court said that such 'variable figurative' mark was not capable of being represented graphically in the sense of Section 8(1) of the German Trademark Act.

14 October 2011

Company loses mark after sending cease and desist letter

The Munich Appeal Court has confirmed that there was a likelihood of confusion between MG Demand Holding AG’s mark DI GIOIA and L’Oréal’s earlier trademark ACQUA DI GIÒ. MG Demand Holding had sought to prevent L’Oréal from selling its new Acqua di Gioia perfume, but L’Oréal obtained an injunction prohibiting MG Demand Holding from using its mark based on the earlier ACQUA DI GIÒ mark.

01 April 2011

Ornamental elements on footwear not used only for decorative purposes

The Federal Patent Court has dismissed five decisions of the German Patent and Trademark Office in which the latter had refused to register figurative trademarks for footwear. The court agreed with the applicant that the trademarks did not consist only of ornamental designs, as they all contained at least one letter and most of them included roman numerals.

03 March 2011

Registration for name of major tourist attraction cancelled

The Federal Patent Court has upheld a decision of the Patent and Trademark Office ordering the cancellation of the trademark NEUSCHWANSTEIN - the name of a famous 19th-century Bavarian castle - for a wide range of goods and services. The court argued that the names of famous historical persons or places should not be monopolised, regardless of the relationship between the name and the goods and services at issue.

15 December 2010

Federal Patent Court makes U-turn in POST cancellation action

In a complete U-turn, the Federal Patent Court has rejected an action for the cancellation of the German trademark POST. The court found that, although the POST mark was descriptive, the evidence submitted was sufficient to show that the mark had acquired a secondary meaning.

26 November 2010

Green apple held to be distinctive for dentistry goods and services

The German Federal Patent Court has set aside a decision of the Patent and Trademark Office in which the latter had found that the representation of a green apple was devoid of distinctive character for dental goods and services. The decision confirms that the mere fact that a mark conveys an objective message does not necessarily mean that it lacks distinctiveness.

22 November 2010

'Humorous' mark not protected by freedom of art

The Hamburg Appeal Court has held that use of the mark EIPOTT by household goods manufacturer Koziol was likely to take unfair advantage of the distinctive character of Apple Inc's IPOD mark. Among other things, the court concluded that use of a trademark in a witty and humorous manner will not imply that there is no trademark infringement if the mark is used for the main purpose of exploiting its distinctiveness.