TM-Conqueror: Trademark law in Germany, Europe and the World

trademark application, trade mark infringement, German trademark law, EU trademarks, IR, national trademark protection, trademark analysis, trademark portfolio management

Trademark or decorative element?

You may have already got a fun surprise from one of your good friends such a fun hoodie with a nice lettering printed on the front or the back side of the piece of clothing.

Have you ever asked yourself if this lettering has been legally registered as a trademark? Or if is even possible to register such decorative elements as a trademark?

Which signs can be generally protected by law?

Protectable signs are those which are capable of distinguishing the goods and/or services of one company from those of other companies. These can be, for example, words, letters, numbers, illustrations, but also colours, holograms, multimedia signs and sounds.

What about your printed hoodie? Let´s have a look at this interesting case together.

Frankfurt am Main Higher Regional Court, Judgment of 02.06.2022 – 6 U 40/22 –

Lettering on hoodies is generally understood by the public as a decorative element and not as an indication of origin.

Words on the front or back of an item of clothing are not generally understood by the public as an indication of origin. In particular, words of the German language, a common foreign language or so-called fun slogans can also be perceived merely as decorative elements. In the following case the Higher Regional Court of Frankfurt am Main (OLG) dismissed the appeal against the refusal of a claim for injunctive relief under trademark law against the use of the word “blessed” on the front of a hoodie.

The parties: The plaintiff is comes from Frankfurt am Main and owner of the word and figurative mark “Blessed”, which is registered as white lettering on a white background for clothing. The defendant is a globally active sports goods manufacturer. It works with so-called brand ambassadors. These include a footballer who wears a tattoo with the words “Blessed” on the back of his neck. In this context, the defendant launched a highly regarded lifestyle collection. On the front of the hoodie belonging to this collection was written the word “blessed” in large yellow and black letters; the garment also refers to the defendant’s trademarks.

The OLG denies injunctive relief of the owner of the trademark. The plaintiff was not entitled to injunctive relief against the defendant. The use of the contested word did not infringe the plaintiff’s trade mark rights. The lettering was not used here as a trade mark, but decoratively for purely descriptive purposes. The hoody was part of the defendant’s sports collection, which it had used in connection with the signing of the Brazilian footballer. The English word means “blessed”. The defendant’s own brand name was also recognisable in several places on the garment. Finally, the consumer knew that slogans or confessional statements were printed on the front of garments.

As you see: trademark law is not as easy as you might think. Make sure to search for legal help before filing any kind of injunctive relief or before moving on with a legal suit. You case could be completely different.

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