The Federal Patent Court decided in a recently published decision that the designation "Der kleine Eisbär" ("The little Polar Bear") is registrable as a word mark for "recorded data carriers, exposed films and printed matters". Der kleine Eisbär is a cartoon character which is very popular, especially among children, in Germany.
The German Patent and Trade Mark Office had rejected the application for several goods and services due to a lack of distinctiveness. The Office thought that the relevant public would understand the designation as a mere description of contents and not as an indication of origin. The applicant appealed successfully against that decision.
The Federal Patent Court said that the designation Der kleine Eisbär was not a mere description of contents but a fantasy title that was distinctive with respect to the relevant goods and services according to section 8 para. 2.1 of the German Trade Mark Law (Markengesetz). It held that the designation did not relate only to goods (eg recorded films or printed matters) that dealt with young or little polar bears, but to a concrete individual, namely the cartoon character Der kleine Eisbär. The court, therefore, thought that the relevant public would understand Der kleine Eisbär to be an indication of the origin of the company that produces the goods and services in connection with the animal character. As a result, the Court held that the trade mark was not descriptive and did not lack the ability to distinguish the goods and services of one company from those of another. It was not relevant whether the trade mark had been accepted among the relevant trade circles.
This article is intended merely to highlight issues and not to be
comprehensive, nor to provide legal advice. Should you have any questions
on issues reported here or on other areas of law, please contact one of
your regular contacts at Linklaters.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
As the public cloud services market continues to mature and grow, concentration of computing resources into cloud data centres is increasingly attracting the attention of NPEs as a target for patent litigation.
Competitor pay per click campaigns where a company bids for the name of a rival in the hope that a customer or client who searches for a particular company will not notice when a similar company appears in the search suggestions.
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”
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).