Germany: Michael "Bully" Herbig v "Bully - die Ehrenrunde" - the Munich Court has decided

The Regional Court Munich I recently decided the trade mark dispute between German comedian and actor Michael "Bully" Herbig and software producer Take Two Interactive regarding the release of a computer game called "Bully - Die Ehrenrunde". Class 46 first reported on this case in August 2008.

By way of background information: the German word "die Ehrenrunde" translates into 'lap of honour' and colloquially also means 'repeating a year in school'. Herbig became famous in Germany in the 1990s with his comedy show "Bullyparade" and is widely known under the stage name "Bully". The computer game features a teenager as its main protagonist, who occasionally has to "get rough" with his surroundings at a boarding school. The case was heard by the Munich Regional Court I (Landgericht München I). In the proceedings Michael "Bully" Herbig, inter alia, argued that the computer game infringed his trade mark rights and his personality rights and that he did not want to be associated with a violent computer game. The defendant stated that the game title did not refer to the actor but was a mere reference to the English colloquial word "to bully".

In its decision of 28 October 2008 the Munich Regional Court dismissed Mr. Herbig's case. The court confirmed that Mr Herbig was well-known in the television and movie sector. The court also acknowledged that Mr Herbig was well-known under his stage name, which was even listed in his passport. As such, Mr Herbig was entitled to a certain degree of protection of that name. However, the court emphasised that the term "Bully" was also often used in a different context. "Bully" was a term used in ice hockey, there was a VW van called "Bully" and the word was used by Germany's "anglicising youth" which understood the term "bully" in the its original English language meaning. In this respect the court decided that the term had to be considered as a descriptive and should be freely available to use. The court went on to say that the term "Bully" had no specific meaning in the area of computer games and, as such, there was no likelihood of confusion between Mr Herbig and the defendant's computer game. The court further established that there was no likelihood of confusion with the Mr Herbig's tv shows because the relevant consumer group for computer games would not simply transfer the term "Bully" - which was not a commonly used term in the field of computer games - from the field of tv and movie entertainment and associate it with Mr Herbig.

Case reference: Landgericht München I, 33 O 24030/07, of 28 October 2008. The court's press release can be retrieved by clicking here (in German). The decision is not yet final.

Posted by: Birgit Clark @ 06.16
Tags: bully, computer game, German trade marks, trade mark dispute,
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