06. Dec 16

OLG Hamburg: Trademark law on magazine with same name as novels

If a word mark is registered in relation to romance novels, among other things, a magazine bearing the same name does not necessarily infringe the rights protected under trademark law. That was the verdict of the Oberlandesgericht (OLG) Hamburg [Higher Regional Court of Hamburg].

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The plaintiff had registered a word mark for her printed matter in the field of romantic fiction. A publishing house published a magazine under the same woman’s name. The plaintiff viewed this as a violation of her trademark rights and protective rights of title. However, the defendant publisher was not prepared to make a cease-and-desist declaration, stating that the magazine did not represent printed material from the field of romantic fiction. It argued that the differences between the two types of work were such that this did not constitute a violation of trademark law.

In contrast to the Landgericht Hamburg [Regional Court of Hamburg], the Hanseatic Oberlandesgericht Hamburg dismissed the action for an injunction in its ruling of May 12, 2016 (Az.: 3 U 129/14). The OLG ruled that the defendant publishing house had not made use of the registered brand name as a trademark. It held that while the titles of periodical magazines can serve as an indication of origin, i.e. be used as a trademark, this is only the case if the title has a high profile. The Court went on to say, however, that because only a small number of issues of this magazine went on sale, this was not the case here.

Furthermore, the OLG did not identify any risk of confusion between the paperback novels and the magazine. While the two signs were said to be identical, the fact that the products themselves were not identical in nature meant there was no risk of confusion, as the trademark protection applied to romantic fiction. The Court went on to say that this is not comparable with a periodical women’s magazine; the primary function of a magazine is to provide informative, journalistic content, whereas novels tell fictional stories. Even though both printed materials are chiefly aimed at women and exist for entertainment purposes, the OLG nevertheless concluded that the goods were not identical in nature.

Brands are of considerable importance to businesses and can be registered for various economic areas and fields. Lawyers who are versed in trademark law can offer advice with respect to registering trademarks as well as when enforcing or fending off claims in the event of violations of trademark law.

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