The mention of the protected name of music festivals during the Sweepstakes advertising does not constitute a trade mark infringement nor is it anti-competitive
LG Frankfurt 10. Chamber for Commercial Matters, from 05.07.2013 to 3/10 The 42/13
Standardize: § 5 Abs 1 S 2 No. 4 UWG, § 14 Trademark, § 23 No. 2 Trademark
…
Dismisses the action;.
The costs of the dispute will have to bear the applicants.
The judgment is against collateral in the amount of 110% of each case to be enforced amount provisionally enforceable.
Facts
1
The parties disagree as to injunctive, To provide information- and claims for damages in connection with a conference organized by the defendant Sweepstakes.
2
The applicants concert organizers. The disputed festival "X", "Y", "A" and "B" are commercially exploited by the applicants, in particular, are usually entered with various national and international companies sponsoring contracts.
3
The applicant 1) since the 04.10.1993 the German Patent- and Trademark Office (DPMA) with a word mark for the name "X" in the goods - or. Service classes 41 and 9 (vgl. Application Bl. 10 d. A.) and registered with a word-figurative trade mark in relation to the designation "Y". For the label "Y" at the Office for the internal market (OHIM) also registered a word mark in favor of the Y1 GmbH (vgl. Bl. 10 d. A.). The Y1 GmbH with respect to the event "Y" local cooperation partner of the applicant to 1), which these uses for implementation of the festival.
4
The applicant 2) since the 03.11.1997 DPMA with a word / picture trademark for the name "A" in the goods- or. Service classes 41 and 35 registered. Since the 27.10.2000 it is also a word / picture trademark for the name "B" in the goods- or. Service classes 41, 25 and 35 registered (vgl. Application Bl. 10, 11 d. A.).
5
The defendant is an internationally operating companies in the food sector, which 2012 for their product "C" on the Internet at www. Com ... campaigned with the slogan "D" designation under the disputed festivals and tickets, among other things for the festival, but also for other concert events, auslobte. For details of the advertising is on the photocopies system K1 (Bl. 26 d.A.) and Bl. 53f. and 144 d.A. Reference is made. Concerning advertising and Auslobung the tickets there was no contractual agreement between the parties. Tickets for the festival acquired the disputed defendant on the internet at the ticket distribution Z. The Privacy Policy of Z contained no evidence or limitations relating to transfer of tickets. The tickets is simple bearer, which are not issued for a specific person.
6
By letter of Attorney 19.09.2012 (Anlage B 1, Bl. 73ff. d.A.) warned the plaintiffs from the defendant and encouraged them to submit a penalty clause statement. By letter of 28.09.2012 the defendant refused to submit the declaration.
7
The applicants erwirkten before the Landgericht Frankfurt am Main (The: 2-06 The 505/12) an interim injunction against the defendant, by the defendant was forbidden under pain of the usual order means the disputed advertising.
8
The applicants, the support of their claim primarily on competition law and trademark law on the alternative claims, assert, they were organizers of the disputed Festivals. The festivals have a special awareness, which enables them a very successful recycling; so companies would pay sometimes substantial amounts, to view the names of commercially may. The advertising of the defendant awaken the consumer the idea, the defendant had a contractual partner of the applicants regarding the festival. That impression is reinforced by the explicit reference to the H for the other gains in the disputed advertising. The evidence of the defendant's cooperation with the H mistaken on a possible cooperation relationship of the defendant with the applicants. Furthermore, the defendant rest with their advertising to the applicants or. which they organize festivals to. The tickets for the events at issue were awarded by the defendant as the main profit. The defendant wanted to use the good reputation of the applicants themselves, since the disputed festivals are much more attractive than the other to winning events. Also the fact, that the defendant disputed the festival in their advertising visually highlighting, Show, that the target group should be addressed by their advertising, the'll also addressed by the festival.
9
The applicants consider, they were due to the registration at the German Patent- and Trademark Office or holders of trademarks relating to the disputed Festivals. in any case entitled, To make third party claim against trademark law claims arising from the cooperation with the Y1 GmbH. You could in addition to the injunction a right to information to accurately quantify their damages and a claim for damages in the amount of at least 30.000 Require €, since this amount due to the applicants in accordance with the usual practices of the advertising industry for the use of these terms.
10
The applicants claim,
11
order the defendant,
12
1. to it on pain of a deadline set for the case of the infringement fine of up to 250.000,00 Euro and for the case, that this can not be recovered, Imprisonment up to 6 Months, to perform the Managing Director of the defendant, to refrain from immediately, engaged in a business activity, the designations "X", "Y", "A" and "B", without the express prior consent of the applicants for the purposes of advertising for the product "C", as reflected in Appendix K1, use.
13
2. to grant the applicants information, over what period to what extent and in what media it has spread, reproduced in Appendix K1 advertising for the product "C" or. by third parties can be spread.
14
3. the applicants referred by providing the information paragraph 2) a fair damages in the amount of at least 30.000,00 To pay EUR.
15
The defendant claims,
16
dismiss the action.
17
The defendant contends, the claims did not exist. Firstly, the absence of a brand-label use of the terms, whose protection could also not the applicants claim. Second, the defendant deceived neither a collaboration with the applicants nor do they use their reputation unfairly. The consumer makes regularly no idea about the existence of a business relationship, as it was for him as part of a contest of no interest. The festival would also not promoted as a major gains, Rather, the Festival designations would only in the other advertising texts, including references to other to winning prizes, understood.
18
Nor would the tickets emphasized or made visually in the center, since no logos and symbols of the festival were to be used and the terms are depicted much smaller than the brands of the defendant or. the advertising slogan "D". Finally, it stated with regard to the cooperation with the H, just that there is no cooperation with the applicants. The consumer can recognize, that cooperation only those events concerned, where the H Rights could provide.
19
At the request of the defendant, the dispute was resolved by the 22.03.2013 referenced by the first civil chamber called the Chamber for Commercial Matters.
20
Concerning the further facts- and dispute on the matter is submitted to the file pleadings and the annexes, which were made the subject of the hearing, referenced.
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Reasons
21
The action may be, but unfounded. The applicants make no claim for injunctive relief and damages so contiguous to. As a result, there are also no claims on information on the scope of the disputed advertising.
22
The applicants can not be first on competition law claims for injunctive relief under § 8 Abs. 1 Support UWG, also – assumed the existence of a competitive relationship between the parties – it's at a within the meaning of § 3 UWG unfair action is missing.
23
A misrepresentation of a – alleged – Position as a sponsor of these festivals (§ 5 Abs. 1 Sentence 2 No.. 4 UWG) not available, because the defendant did not give the impression of eyes of the relevant public with advertising, the contest will or by the organizer of the festival. one conducted with this agreement connected person. The defendant has only the – already put forward by the applicants generally known and often used – Called the name of the events and tickets for these events awarded as a prize; an advertisement “with” each festival lies not in. The advertisement does not contain any statements or design features, indicate a position of the defendant as a sponsor. She has used no particular Logo of events, or other special Promotional License Plate, that would speak for a Sponsorship, but reference is made by the competition brief simply on the existence of Events (vgl. to a similar case LG Stuttgart, Judgment of 04.05.2012, 30 The 26/12 KFH, GRUR-RR 2012, 358). The defendant has also made just the ticket as such as income prospective, but not – which in turn would have spoken for a sponsorship position – or a special VIP treatment. a special value of the ticket (vgl. Dazui LG Stuttgart, Judgment of 19.01.2012, 35 The 95/11 KFH, beckRS 2012, 12338).
24
Another result follows – contrary to the applicants – not from the evidence of cooperation with the … since the reader of advertising so far can only be found, that with the … a contractual relationship existed. Evidence, that the recipient draws the conclusion, that this also applies to all other organizers of ausgelobten Tickets, not exist. Instead, just illustrates the fact, that only a partnership with the … is indicated, that there is no connection with other agencies.
25
The applicants can not rely on the trademark law injunctive relief in the alternative, asserted from §§ 14, 15 Appointed MarkenG. It can both remain open, extent to which the applicants holders of marks in conflict or. are entitled to exercise the rights, and, whether the naming of the festival as a trademark use – about because of an impairment of the investment- or advertising function by exploiting the repute of the mark – means (vgl. BGH to, Judgment of 14.04.2011, I ZR 33/10 – Large inspection for all, cited by Juris Tz. 11, 13, 15; for use as a trade mark as part of a contest cf.. BGH, Judgment of 03.11.2005, I ZR 29/03 – Profit vehicle with vehicle emblem, cited by Juris Tz. 23) and whether pursuant to the sale of tickets without restriction exhaustion § 24 MarkenG occurred (vgl. BGH to, Judgment of 03.11.2005, I ZR 29/03 – Profit vehicle with vehicle emblem, cited by Juris Tz. 24).
26
The use would, in any event as a descriptive use under § 23 No.. 2 MarkenG allowed, because the nature of the use is not against good morals. The defendant purchased tickets for the disputed festivals and praised them out as prizes for the participants of the competition. For this purpose it must be in principle also capable of, to mention the names of the festivals. An essential feature of the competition is in fact, that participants can win as prizes Tickets for the festival.
27
The use of the trademark in the disputed manner not contrary to good morals within the meaning of § 23 last clause of the Trademark. The user has the extent to refrain, contrary to the legitimate interests of the trademark owner. Whether unfairness exists, should be assessed taking into account all circumstances of the individual case (Hacker, in: Ströbele / Hacker, Trademark, 12. Divide. 2013, § 23 Rdn. 81 m.w.N.). In this respect, no morals violation in this case is based on the advertising and circumstances determine, because the way, be listed as the festival, is purely descriptive. A mere use of the terms is not sufficient for the adoption of unfairness (vgl. BGH, Judgment of 5. June 2008, I ZR 108/05 – Post I, cited by Juris Tz. 23). Neither are aspects presented, could give rise to unfairness, still results in an impairment of legitimate interests of applicants from the circumstances. Instead, the defendant has identified the marks in conflict in a minimalist way as an indication of the claimed gains. The name of the festival will be listed in the advertisement, without this or a beyond promotional use. Demarcation from other goods or services (BGH to, Judgment of 22. January 2009, I ZR 139/07 – pcb, Wheat 2009, 502, 504) carried. The defendant has used neither word-figurative trade marks or the name of the festival by size and style of lettering is particularly pointed out. Is the result – as already mentioned in connection with § 5 Executed UWG – no danger of a misconception of the relevant public about, or that between the brand owner. Festival organizers and the defendant is a direct business relationship, as the traffic goes out regularly thereof, that in such a case, a clearly prominent presentation of the brand itself (vgl. BGH to, Judgment of 12. November 2009, I ZR 183/07 – WM brands, NJW-RR 2010, 851, 853).
28
Vaginal injunctive relief the applicants from, it also lacks the amount of damages- or. this preparatory information required tort claims.
29
The cost is based on § 91 Abs. 1 ZPO.
30
The decision on the provisional enforceability is based on § 709 ZPO.