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Germany: Influencers, distinctiveness and reputation. A translation round-up

The following short posts covering competition issues in influencer advertising, trademark distinctiveness for media services and limitations to the power of reputation are translated from our German language blog. We will publish futher English translations from this blog periodically:

Berlin: Influencer must identify presented products as advertising

In an attention-grabbing decision (case ref. 52 O 101/18), the District Court [Landgericht] of Berlin ruled that, even in cases where products bought by influencers are presented by the latter on Instagram, such presentation must be identified as advertising if the image description includes a link to the Instagram account of the manufacturer.

Comment: With this judgment, the District Court of Berlin triggered an outcry in the influencer scene. In reaction to it, some influencers are now identifying every post of theirs as advertising. Irrespective of these phenomena, however, the actual problems associated with the judgment are also being discussed: how is the law going to deal with the fact that, in the work of the influencer, private and business life are one and the same? Can those who take up this profession therefore no longer act as private persons on social media? Must special attention be paid where links – part of the established communication on social media – are concerned? These questions will now have to be answered by the Berlin Court of Appeals [Kammergericht].

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Author: Sabrina Dücker

Hamburg: “Tagesschau” is sufficiently distinctive as a work title

(3 U 167/15) The Hanseatic Court of Appeals [Hanseatisches Oberlandesgericht – HansOLG] of Hamburg prohibited the use of the sign “Tagesumschau” for an online news portal. The German public broadcaster Norddeutscher Rundfunk (NDR) took legal action in the Hamburg courts against a competing digital news portal called “Tagesumschau.de”, invoking the word mark “Tagesschau”. The District Court [Landgericht] of Hamburg found in favour of NDR at first instance.

Comment: Ultimately, the decision is unlikely to come as a surprise. The “Tagesschau” is an institution of German evening television and has bucked all the digitalisation trends by still attracting millions of viewers every day. Depending on the individual case, clients that are not based in Germany and want to use a similar sign must be informed about this special status.

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Author: Yvonne Draheim

Hamburg: Distinctiveness of Plaintiff’s sign not increased by reputation of Defendant’s

 (327 O 325/15) The District Court [Landgericht] of Hamburg stated that there is no risk of confusion between two signs of which the sign with the more recent priority has an extremely well-established reputation. The Plaintiff was the proprietor of a combined word/figurative mark conferring protection for computer software, which has since been cancelled due to non-use. The trade mark consisted of four squares put together to form a square, and a constituent word. Three of the squares are blue, one is grey. The Defendant is an extremely well-known software manufacturer; its logo in dispute is no less well known. It also consists of four squares put together, and the Defendant’s company name. The squares are different colours. The Plaintiff believed that this logo infringed its trade mark rights and, after a partial withdrawal of the complaint, asserted auxiliary claims against the Defendant for the provision of information and for damages.

Comment: Even though the Plaintiff was unsuccessful, the court had to deal with a very interesting line of argument. In its grounds, the court highlights the significance of the distinctiveness that designates the ability of a sign to be perceived as an indication of a certain company. Against this background, the line of argument cannot succeed, as the ability of the Plaintiff’s sign to refer to the trade mark proprietor is not increased but rather decreased by the sign with a well-established reputation that has more recent priority. Ultimately, the relevant public are more likely to erroneously attribute the trade mark proprietor’s sign to the well-known infringer than vice versa.

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Author: Patrick Fromlowitz