On Friday 20 November, German trade mark enthusiasts gathered for the MARQUES event "Expert Talks with Judges of the German Trade Mark Courts" (Expertengespräch mit Richtern der Deutschen Markengerichte), which took place at the offices of the German Patent and Trade Mark Office (GPTO) in Munich. The event was organised in cooperation with the GPTO as well as the German Brand Association. It started off with warm welcoming speeches by Cornelia Rudloff-Schäffer (of the GPTO), Dr. Alexander Dröge (German Brand Association) and Dr. Uwe Over (Chair, MARQUES).

In this Blogger’s view, the highlight of the day followed shortly afterwards: Dr. Andreas Lubberger (Lubberger Lehment) grabbed everyone’s attention with a thought-provoking presentation. He analysed some of the ways in which recent insights gained from behavioural science and other fields of research could challenge the ‘general principles derived from common experience’ that trade mark judges frequently rely upon. Dr. Lubberger astonished the audience with several findings that were more than just slightly counter-intuitive. For instance, the audience learned that the visual sense accounts for 60 – 90 % of the overall perception of our surroundings. Nonetheless, humans are generally not very well equipped when it comes to visual perception, said Dr. Lubberger. We are, by way of example, only able to see completely focussed within a two-degree angle of our field of view. In addition, shapes are much easier to be recognised by humans than colours, which in turn are easier to be recognised than writing. Subsequently, Dr. Lubberger gave impressive examples that showed how the human mind automatically supplements missing pieces of visual information in order to create a more meaningful picture.

In light of these and other findings, Dr. Lubberger then looked at the above-mentioned principles derived from so-called common experience. He asked the audience whether or not they (still) agreed with some of the principles that are generally accepted in trade mark law. One of the principles under scrutiny was that consumers allegedly pay more attention to the beginning of a word (mark) than to its ending. Dr. Lubberger showed evidence suggesting that human beings do not focus on the beginning of words but rather recognise words by their beginning and ending. It appeared that the letters in the middle of a word can be switched or altered without lowering the word’s recognisability. As with many other principles, the audience’s vote on the soundness of this principle was split.

Next up was Prof. Dr. Dr. Joachim Bornkamm (Former Presiding Judge of the German Federal Supreme Court), who stressed that the ‘general principles derived from common experience’ had a normative side to them. He explained that German judges understand the perception of a trade mark by the average consumer as a question in law and that the general principles are one of the means judges use to make a prognostic assessment. Prof. Bornkamm then discussed the key points that parties can challenge if a judge relies upon a general principle.

The third presentation was given by Mr. Christoph Bartos (OHIM), who explained the prerequisites for the substantiation of a non-registered trade mark within the meaning of Art. 8(4) CTM Regulation. Afterwards, Prof. Dr. Olaf Sosnitza (University of Würzburg) examined whether or not a particular type of trade mark (e.g., a word mark) could give rise to a likelihood of confusion with a completely different type of trade mark (e.g., a 3D mark). The talk also provided an in-depth analysis of the Goldbear decision of the German Federal Supreme Court (reported here).

Next up was Mr. Lars Meinhard (Presiding Judge of the District Court of Munich), who presented and critically analysed recent decisions of the German Federal Supreme Court on 3D marks and colour marks (such as the decision Yellow Dictionaries, reported here). And finally, Ms. Johanna Brückner-Hoffmann (Presiding Judge at the District Court of Düsseldorf) gave an interesting talk on the potential conflicts between copyright, trade mark, design and unfair competition law.

Throughout the day, several open floor discussions were led by Dr. Uwe Over (Chair, MARQUES), Dr. Karsten Fischer (Tui) and Dr. Gregor Versondert (Vice-Chairperson MARQUES) respectively. Moreover, Till Lampel (Harmsen Utescher) and Dr. Martin Viefhues (Jonas) also introduced some of the speakers and co-chaired the discussions. Unfortunately, Prof. Dr. Franz Hacker (Presiding Judge of the German Federal Patent Court), who was supposed to talk on the current differences between German and European case law, was unable to attend the event.

Late in the afternoon, the event came to a close with the farewell speech of Barbara Preißner (GPTO), who eloquently summed up what surely was the general consensus among the audience, namely that the well-rounded presentations and lively discussions had been truly inspiring and will give all participants plenty to reflect upon for some time to come.