Germany: "Every Time a Good Time" - Protecting Slogans in Germany

Last Updated: 13 February 2002
Article by Henning Hartwig

Co-written by Eva Reinhardt

"In recent times, the functions of advertising and branding have obviously approached each other to an extent that often both phenomena can no longer be sharply distinguished." This Federal Patent Court’s statement of March 22, 1999 was the beginning of a process which led to a more liberal view on the requirements for protecting slogans. Eva M. Reinhardt and Dr. Henning Hartwig take a close look on the latest development also being confirmed by recent decisions of the Federal Supreme Court.

In Germany, the protection of advertising slogans or catchwords has played a rather subordinate role in the case law to date. The registration as a trademark of such advertising phrases which, according to the German Patent and Trademark Office (GPTO) and the Federal Patent Court, did not fulfill the functions of a trademark, was – with very few exceptions – generally refused. Copyright protection was only obtainable in cases of creative individuality, which was mostly denied, especially in cases of short advertising jingles. The best chances to proceed against the copying of an advertising slogan were to be had under unfair competition rules. Even here, however, "typical" advertising slogans were regularly considered by the courts as lacking competitive individuality and, therefore, not being protectable under German unfair competition law.

Key Decisions of the Federal Supreme Court

From a trademark law perspective, the Federal Supreme Court has now, with its decisions "Radio von hier" and "Partner with the Best", initiated a change in the relevant jurisdiction by taking a less restrictive view on the requirements for the registerability of advertising slogans.

In line with the previous case law, the preceding Federal Patent Court denied registration in both cases on grounds that the wordmarks "Radio von hier, Radio wie wir" ("radio from here, radio like us") and "Partner with the Best" were merely describing and promoting the respective goods and services. According to the Court, these slogans neither contained an independently characterizing aspect nor a significantly imaginative surplus, and therefore lacked distinctiveness. In spite of a certain originality, these expressions would thus not qualify for registration.

In this respect, the Federal Supreme Court – thereby taking into account a literature of long-time criticism of the Federal Patent Court’s jurisdiction – criticized that the latter had set the standards for the assumption of distinctiveness of advertising slogans too high. According to the Federal Supreme Court, no stricter standards may be applied to the distinctiveness of slogans as are applied to other wordmarks. Although the public may in many cases take an advertising slogan for a promoting statement which does not serve primarily to identify the provenance of the product, this would not justify the application of different standards of distinctiveness in comparison to other wordmarks, since the function of identification and the advertising effect are both inherent to a trademark and do not exclude each other.

Requirements for Protecting Advertising Slogans

Consequently, it is decisive – just like with the "classical" wordmarks – whether the slogan has "a content exclusively describing the product, or whether any element of distinction, no matter how small, relating to the registered goods and services can be additionally ascertained." A canon of interpretation as to when such "elements of distinction, no matter how small" are to be assumed is simultaneously provided by the Federal Supreme Court: A lack of distinctiveness is to be assumed with regard to descriptive or promoting or advertising statements of a general nature and, as a rule, with any longer sequence of words. Contrarily, "shortness, a certain originality and succinctness" can be taken as evidence for distinctiveness as well as "ambiguity and the resulting need for interpretation of the advertising statement", which are means to transform a trademark application into a catchy and significant advertising slogan.

On the basis of these general considerations, the Federal Supreme Court judged the slogan "Radio von hier, Radio wie wir" as well as the statement "Partner with the Best" as being sufficiently distinctive. According to the Federal Supreme Court, the slogan "Radio von hier, Radio wie wir" can be determined as a short and succinct sequence of words which distinguishes itself clearly from a longer sequence. Additionally, this slogan was understood to be particularly catchy and lively because of its simple rhyming message, and stimulating to the intellect because of its ambiguity. The slogan "Partner with the Best" was held to show distinctiveness on grounds of the unclear and grammatically incorrect linking of its elements as well as because of a strong need for interpretation.

Apart from generally lowering the requirements for the distinctiveness of advertising slogans, the decision "Partner with the Best" is also interesting with regard to a second aspect: The Federal Supreme Court further stated that the numerous appearance of single elements of a slogan – for instance on web sites – cannot lead to the assumption that the slogan as a whole may not be registered, since its free use by competitors must be safeguarded. This ruling is grounded on the consideration that – as a rule – a registered sequence of words is always to be judged as a whole entity. Therefore, any search "for documents in which single words of a slogan are found distributed within a textual entity (...) cannot lead to a statement as to the frequency of occurrence of the slogan as such." This ruling will surely not only gain significance in relation to the ascertainment of the distinctiveness of a sign, but will also have an effect on the question of the concrete scope of protection of registered slogans.

First Reactions of Federal Patent Court and GPTO

Naturally, first reactions of the Federal Patent Court and the GPTO to the latest ruling of the Federal Supreme Court regarding the criteria for registration of advertising slogans did not take long to come. The Federal Patent Court's 28th Senate, for example, clearly adopted the recent turnaround of the Federal Supreme Court in its decision "Ein schönes Stück Natur" ("A beautiful piece of nature"), albeit coming to the conclusion that this slogan would not meet the requirements for registerability, being merely descriptive for the goods concerned (various dairy products and food). Like the 28th Senate, the Federal Patent Court's 33rd Senate, too, explicitly approved of and adopted the recent jurisdiction of the Federal Supreme Court regarding the distinctiveness of advertising slogans.

However, the decision of the 33rd Senate is surpassing the jurisdiction of the Federal Supreme Court insofar as the Senate expressly stated that shortness, succinctness, acoustic attractiveness and a certain originality alone are not sufficient for the recognition of distinctiveness. Short, catchy, succinct, elegant or funny and linguistically creatively formulated phrases are judged by this Senate as being stylistic means of such common use that the public would not take such a way of expression to identify an individual company. Nonetheless, the advertising slogan applied-for – "Energie mit Esprit" ("Energy with esprit") – was held to contain the necessary distinctiveness without a need to be kept free for competitors. According to the Federal Patent Court’s 33rd Senate, no unambiguous sense was discernable, to the contrary, this slogan was inducing various different associations with the obvious intent of ambiguity. Therefore, it was neither appropriate as a directly descriptive statement nor as an easily understandable general advertising statement. No sensible statement was resulting from the word sequence "Energie mit Esprit", but on first appearance, it was deemed "strange", "euphorical" and "unrealistic" with regard to the relevant goods (energy made of electricity, gas, heat or steam). These forms of energy being mostly invisible to the consumer and showing no individual creativity or special design could therefore obviously not have any "esprit". Faced with the contradictory and unclear sense of the word sequence "Energy with Esprit", which was deemed as having multiple meaning and being in need of interpretation, the addressed circles of the public would view this advertising slogan as being sufficiently imaginative to an extent that it could serve as a distinguishable characteristic identifying one specific company, particularly since it obviously contained no direct descriptive statement.

Thus, the Federal Patent Court’s 33rd Senate combined two characteristics of distinctiveness which the Federal Supreme Court had formulated earlier alternatively and not cumulatively, the latter having stated: "Evidence for a qualification to distinguish the goods and services of one supplier from those of others can be (...) shortness, a certain originality and succinctness of a word sequence which can make a catchy and meaningful advertising slogan. Ambiguity and a resulting need of interpretation may as well supply evidence for sufficient distinctiveness."

Also the GPTO reacted to the change of the High Court’s jurisdiction regarding qualification for the registration of advertising slogans. For example, it recently registered the word sequence "hier passiert’s!" ("here is where it’s happening") for i.a. "CDs, films, videos, print products, photographs, education, entertainment" as well as the slogan "Sie machen es wahr" ("you will make it come true") for "perfumeries".


The Federal Supreme Court’s statement that an advertising slogan is nothing else than a wordmark consisting of several elements (of the distinctiveness of which nothing may be required that deviates from the general principles), was long overdue and is very welcome. The recent decision "Unter Uns" ("in private") – where the above-said principles for the qualification to register slogans have been confirmed and underlined – shows that the decisions "Radio von hier" and "Partner with the Best" are not single case decisions but the start of a new jurisdiction.

Nevertheless, these decisions leave some questions open that will only be answered bit by bit. For example, it is not yet sufficiently clear what is meant by the Federal Supreme Court when it states, "a lack of distinctiveness can therefore be assumed also with advertising slogans (...) in case of promoting and advertising statements of a general nature." It is to be feared that this "loophole" will be used in the future by the Federal Patent Court and, in particular, by the GPTO to deny registration to advertising slogans – in spite of the latest decisions of the Federal Supreme Court – pointing out that these are "promoting and advertising statements of a general nature". Likewise, the (sometimes contradictory) interpretation and application of the latest jurisdiction of the Federal Supreme Court by the different Senates of the Federal Patent Court is creating questions which have not yet been answered in a final way and which will again engage the Federal Supreme Court in the time to come. And finally, the registrations of advertising slogans will create new debates on their respective scope of protection and, consequently, on the risk of confusion.

© by Henning Hartwig and Eva Reinhardt, 2001. Dr. Henning Hartwig and Eva Reinhardt are attorneys-at-law with the Intellectual Property Law firm Bardehle Pagenberg Dost Altenburg Geissler Isenbruck, Munich.

First published in Trademark World, informa, London, November 2001

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.