In a decision of September 2011 (case reference: 28 W (pat) 29/11) the German Federal Patent Court had to decide in appeal proceedings against a partial invalidity decision relating to a trade mark registration for the “DDR-Ampelmännchen” (see left), the little green man used in the former GDR's in pedestrian traffic lights.  The German national mark was, inter alia, registered for "goods made of metal insofar as included in class 6, in particular metal signs and metal postcards".   The German Patent and Trademark office (DPMA) had partially invalidated the mark for the aforementioned class 6 goods.

By way of legal background:  § 50 (1),( 2) in combination with § 8 (2) No. 1 German Trade Mark Act provide that a registered trade mark can only be cancelled in cases where the mark lacked the necessary distinctiveness under § 8 (2) No. 1 German Trade Mark Act at the time of registration and this absolute ground of refusal still exists at the time of deciding the cancellation application.

On appeal, Federal Patent Court disagreed with this assessment and took the view that consumers would regard the “DDR-Ampelmännchen” in cases where it used as a metal sign or a visual motif on a postcard, at least also as an indicator of trade origin for these goods, that is metal signs and postcards depicting the little green man.  Further, there was no indication that consumers would exclusively regard the little green man as prevailingly descriptive when shown on printed matter in the wider sense, neither was it non-distinctive for the goods in question.  The court also explained that this version of the little green man had lost its legal meaning after the German reunification.  Even though the DDR-Ampelmännchen could still be found in use in some traffic lights in Berlin, it had lost its former legal significance as a traffic sign. The court therefore overturned the DPMA's decision and refused the application for partial invalidity since the sign was "not not protectable" as a trade mark ("nicht schutzunfähig").