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05 December 2008

Liability of online auction providers confirmed by Supreme Court

The German Federal Supreme Court has held that eBay was liable as ‘disturber’ for infringement of the claimant’s rights in his name on the online auction platform. Importantly, the court stated that eBay bore the burden of proving whether it was technically possible to prevent further violations once it had been notified of the infringement.

16 September 2008

Germany’s approach to publicity and image rights

The Federal Court of Justice has recently introduced a new graduated concept of protection under which the greater the informative value of the image or the social relevance of the incident reported, the more the protection of personal rights must take second place.

22 July 2008

Design and trade dress in Germany

As in most jurisdictions, the appearance of a product may be protected in Germany under various IP laws and unfair competition law. The courts, in particular the Supreme Court, have developed extensive case law in relation to trade dress protection.

01 April 2008

Claims for damages are not limited by first act of infringement

In a landmark decision, the First Senate of the Federal Supreme Court has overturned previous case law on claims for damages in trademark infringement cases, thereby strengthening the position of trademark owners. Among other things, the court held that claims for damages and disclosure of information are no longer limited by the first act of infringement established by the claimant.

22 November 2007

Supreme Court restricts scope of protection of KINDER trademarks

In two decisions the Supreme Court has held that Haribo's mark KINDER KRAM ('kids' stuff' in German) and Zott's mark KINDERZEIT did not violate Ferrero SpA's rights in the KINDER trademarks for chocolate products. The decisions represent a significant blow to Ferrero in its attempt to obtain a monopoly on the mark KINDER for confectionery.

10 October 2007

Google loses battle over GMAIL trademark in Germany

The Hamburg Higher Regional Court has confirmed an earlier decision preventing Google from using the term 'Gmail' for its webmail service in Germany. The court held that there was a likelihood of confusion between the term 'Gmail' and the trademark G-MAIL - UND DIE POST GEHT RICHTIG AB, which is registered in Germany for various types of mail services.

24 September 2007

POST mark cancellation upheld by Federal Patent Court

The Federal Patent Court has upheld the decision of the Patent and Trademark Office to cancel the trademark POST registered by Deutsche Post AG. The court concluded that the term 'POST' was descriptive for postal services at the time of registration and was therefore incapable of distinguishing such services from those of other undertakings.

26 July 2007

Genoa court clarifies ECJ Montex decision in patent case

In a case involving patents, a court in Genoa has given useful guidance on the interpretation of the European Court of Justice decision in Montex Holdings Ltd v Diesel SpA. Among other things, the Genoa court decision clarifies that the actual destination of goods for the purposes of a preliminary seizure and injunction can be demonstrated by means of documentary evidence, such as the relevant shipping documentation.

27 June 2007

Mirrored slogans are not confusing, court rules

The Cologne Court of Appeals has reversed a decision which held that the marks OHNE DICH IST ALLES DOOF (which means 'Without you everything is dull') and MIT DIR IST ALLES TOLL ('With you everything is awesome') are confusingly similar. The appellate court held, among other things, that it is a step too far to find a similarity in meaning where the junior sign says the opposite of the senior sign.

09 May 2007

Withdrawal of application sufficient to eliminate infringement

In a decision published in April the Berlin Appeal Court ruled that the act of filing a trademark application, which is later withdrawn following a warning letter from the owner of an earlier similar mark, does not constitute infringement of that mark. The withdrawal of the application, as well as a serious declaration not to proceed with registration, is sufficient to prevent the need for a court-imposed injunction.

05 December 2006

Masterfoods gets double victory in unfair competition actions

The Cologne Regional Court has issued two decisions in favour of Masterfoods GmbH restraining the sale of pet foods in cans that were look-alikes of the packaging used by Masterfoods for its Kitekat and Cesar products. German law provides remedies against the use of look-alike products under the German Unfair Competition Act.

01 December 2006

World's largest haul of counterfeit goods seized

German customs authorities in Hamburg have seized what could be the world's largest haul of counterfeit merchandise, amounting to 117 shipping containers of products. Among the goods seized were nearly 950,000 pairs of fake Nike sports shoes and over 76,000 counterfeit watches.

27 November 2006

ERDINGER beer mark not infringed by local newspaper title

The Munich Regional Court has dismissed Brauerei Erdinger Weißbräu's request for an injunction preventing the use of the name Erdinger SZ as the title of a local newspaper. It held that there was no likelihood of confusion between the title and an ERDINGER mark for beer as, among other things, the public would understand the name Erdinger as a geographic designation for the town Erding, which is the area of distribution of the newspaper.

24 October 2006

THOMSON LIFE decision approved by Federal Supreme Court

The German Federal Supreme Court has issued a decision in which it expressly applied the THOMSON LIFE doctrine of the ECJ. In a shift away from the traditional approach to device marks of German jurisprudence, the Federal Supreme Court stated that it is no longer necessary for a device element to dominate the overall impression of a mark for infringement by a similar device to occur.

21 June 2006

Porsche 3-D marks steered successfully on to the register

The German Federal Supreme Court has ruled that the shapes of the Porsche 911 and 996 sports cars as well as the Porsche Boxster are registrable as three-dimensional marks for motor vehicles because the appearance of all three cars had acquired distinctiveness through use. The court also noted that the shape of new models of established car manufacturers may acquire distinctiveness through use within a short time after launch.