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FRIDAY, 28 FEBRUARY 2014
German Federal Patent Court: Gustav Mahler – Röschen
The German Federal Patent Court (Bundespatentgericht) recently clarified its guidance on the registrability of the names of famous composers for merchandise goods: Gustav Mahler – Röschen (in English: "little rose"); case reference: 25 W (pat) 564/12 of 31 January 2014. The court's advance press release relating to this case can be found here.
The court's headnotes state as follows (translation by Class 46)
(1) Given the fact that absolute grounds for refusal, including the ground of refusal of lack of distinctiveness under § 8 (2) No. 1 MarkenG (German Trade Mark Act), have to be interpreted in light of the general interest, names of famous personalities of contemporary history must not be monopolized where competitors may have a recognisable and legitimate commercial interest in the use of the name when seen in the context of the respective goods and/or services.
(2) When seen in connection with events that are related to a person (such as festivals, commemorative weeks , anniversary events, etc.), such a name (here: the name of the composer "Gustav Mahler" ) is missing any kind of distinctiveness (§ 8 (2) No. 1 MarkenG) for goods that could be seen as merchandising products (including: soaps , stationery, chocolate products) when considered in connection with such events; (in contrast to BPatG, GRUR 2018, 518 – Karl May). This is particularly true of word combinations in which the famous name is combined with a purely product related reference relating to the type, shape or design of the goods (here: little rose).
Near identical decisions/press releases have also been published for these two related cases: "Gustav Mahler – Röslein” (case reference: 25 W (pat) 561/12); "Richard Wagner – Barren” (case reference: 25 W (pat) 560/12).
Posted by: Birgit Clark @ 08.59
distinctiveness, Germany, BPatG, German Federal Patent Court, merchandise ,
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