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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Anthonia Ghalamkarizadeh
Birgit Clark
Blog Administrator
Christian Tenkhoff
Fidel Porcuna
Gino Van Roeyen
Markku Tuominen
Niamh Hall
Nikos Prentoulis
Stefan Schröter
Tomasz Rychlicki
Yvonne Onomor
SUNDAY, 17 JANUARY 2010
BGH rules in the Opel/Autec toy car case

The German Federal Supreme Court (BGH) has now handed down its decision in the Opel replica car decision (case reference I ZR 88/08 – Opel-Blitz II of 14 January 2010). The court of first instance, the Regional Court Nürnberg-Fürth, had referred this matter to the ECJ for a preliminary ruling which led to the ECJ's decision in Adam Opel/Autec (C-48/05).

While the full decision is not yet available, the BGH has published a press release concerning this case (press release No. 9/10 of 15 January 2010). As final court of appeal, the BGH has now decided that a car manufacturer cannot rely on its trade marks rights in order to prevent the distribution of toy model cars that are scale models of the original cars bearing the original car manufacturer's trade mark on the relevant space. The BHG found that such use did not affect the main function of the mark, which is indicating the trade origin of the goods (here: toy cars), nor did this use affect any other functions of the trade mark because the relevant consumer would merely regard the logo device affixed on the defendant's model car as an exact copy of the mark that the original car had affixed on exactly the same space. Consequently, the mark would only be seen as a reproduction of a detail of the original car. The court stressed that the relevant consumers would not regard it as a reference to the trade origin of the toy car.  

For the BGH's press release please click here (in German). To read a more detailed summary of this decision on the IPKat blog, please click here.

Posted by: Birgit Clark @ 20.14
Tags: bundesgerichtshof, opel, ecj,
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