<OrderedList> <ListItem> <ItemNumber>a)</ItemNumber> <ItemContent> When combining a shape mark with other word or figurative markings, it is necessary to examine whether the shape mark is to be regarded as an independent indication of commercial origin from the point of view of multiple labelling in order to answer the question of whether the relevant public understands it as an indication of commercial origin. Such multiple labelling does not necessarily call into question the perception of the shape as an indication of the commercial origin of the goods by the relevant public (see CJEU, judgment of 23 January 2019 – C-698/17, juris para. 47 – Klement v EUIPO [Shape of an oven]). </ItemContent> </ListItem> <ListItem> <ItemNumber>b)</ItemNumber> <ItemContent> Outside of “free rider” constellations, unfairness is not per se inherent in the element of exploitation of the distinctive character or the repute of the mark with a reputation within the meaning of Sec. 14(2) first sentence No. 3 Trade Mark Act (see CJEU, judgment of 18 June 2009 – C-487/07, ECR 2009, I-5185 = GRUR 2009, 756 [juris para. 41 and 90] – L’Oréal and others). According to the judicial practice of the Court of Justice of the European Union, the exploitation of a good reputation alone does not constitute a circumstance giving rise to unfairness. Rather, it depends on the specific individual case to be examined by the national court. </ItemContent> </ListItem> <ListItem> <ItemNumber>c)</ItemNumber> <ItemContent> The sale of toy or model cars, where any connection with the (three-dimensional) trade mark of the motor vehicle manufacturer inevitably and incidentally arises solely from the toy-like miniaturised replica of the original (see Federal Supreme Court, judgments of 14 January 2010 – I ZR 88/08, GRUR 2010, 726 [juris para. 29] = WRP 2010, 1039 – Opel-Blitz II; 12 January 2023 – I ZR 86/22, GRUR 2023, 808 [juris para. 25] = WRP 2023, 715 – DACHSER [IIC 55:326–336 (2024), <a href="https://doi.org/10.1007/s40319-023-01417-5">https://doi.org/10.1007/s40319-023-01417-5</a>]), is not comparable with the “free rider” constellations decided by the Court of Justice of the European Union, which establish the unfairness of the exploitation of the distinctive character or repute of the trade mark with a reputation. </ItemContent> </ListItem> </OrderedList>

“VW Bulli”

期刊论文
发表日期：

2025年4月23日

查看全文

摘要

When combining a shape mark with other word or figurative markings, it is necessary to examine whether the shape mark is to be regarded as an independent indication of commercial origin from the point of view of multiple labelling in order to answer the question of whether the relevant public understands it as an indication of commercial origin. Such multiple labelling does not necessarily call into question the perception of the shape as an indication of the commercial origin of the goods by the relevant public (see CJEU, judgment of 23 January 2019 – C-698/17, juris para. 47 – Klement v EUIPO [Shape of an oven]).

Outside of “free rider” constellations, unfairness is not per se inherent in the element of exploitation of the distinctive character or the repute of the mark with a reputation within the meaning of Sec. 14(2) first sentence No. 3 Trade Mark Act (see CJEU, judgment of 18 June 2009 – C-487/07, ECR 2009, I-5185 = GRUR 2009, 756 [juris para. 41 and 90] – L’Oréal and others). According to the judicial practice of the Court of Justice of the European Union, the exploitation of a good reputation alone does not constitute a circumstance giving rise to unfairness. Rather, it depends on the specific individual case to be examined by the national court.

The sale of toy or model cars, where any connection with the (three-dimensional) trade mark of the motor vehicle manufacturer inevitably and incidentally arises solely from the toy-like miniaturised replica of the original (see Federal Supreme Court, judgments of 14 January 2010 – I ZR 88/08, GRUR 2010, 726 [juris para. 29] = WRP 2010, 1039 – Opel-Blitz II; 12 January 2023 – I ZR 86/22, GRUR 2023, 808 [juris para. 25] = WRP 2023, 715 – DACHSER [IIC 55:326–336 (2024), https://doi.org/10.1007/s40319-023-01417-5]), is not comparable with the “free rider” constellations decided by the Court of Justice of the European Union, which establish the unfairness of the exploitation of the distinctive character or repute of the trade mark with a reputation.