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          How to safely label textiles in line with better IP rights

          The common use of order references and model names in the textile business industry is often subject to trademark litigation. The Regional Court of Hamburg, Germany, held (again) that these are likely to infringe better IP rights by competitors.

          Date: 23/10/2017

          In the textile sector, it is common to use designations like first names and initials next to the company´s leading brand for clothing. 

          In the case at issue, a textile business company marketed unique items and used various first names or initials for the purpose of distinguishing and individualising the items for purchase order and in shipment. Each name, like Ronja, Isa, Mo M., was only used once and not directly attached to the clothing. The claimant, however, is owner of a German trademark MO. M enjoying protection i.a. for clothing in class 25, and, thus, the owner of a better IP right.

          The Regional Court of Hamburg, Germany, decided that the use of a highly similar designation for identical goods clearly constitutes a trademark infringement due to a likelihood of confusion against the background that the designation was used in a trademark like manner. This requires that - in view of the target public - the company has at least used the designation also for distinguishing its own products from those of other undertakings performing the essential trademark function. It shall merely be important how the designation was perceived by the relevant public. The intended purpose by the company remains irrelevant. In consequence, such a designation might not be classified as a freely usable order reference, cf. LG Hamburg, 312 O 88/16. 

          In consequence, textile business companies should not rely on designations being used as internal order references to be classified as such by a court. Unexamined usage of model names remains risky unless it is opted for using purely descriptive designations.

           

          Related people

          Nils Wolfgang Bings, LL.M. IP (GWU)

          • Partner // Head of Food Law and Regulatory Compliance FMCGs (Germany)