A) An acquired by the Licensor during the contractual relationship is going on trademark law trademark rights to the licensee, this has also acquired during the run of the license agreement, because the position of the licensee in relation to the licensor after the Li-license- or concession contract is not better than that of a third party, uses an identical or similar to the trademark rights licensed characters for the first time.
B) To proof of a license- contract or permit, from the licensor derives a priority of its trademark law in relation to the trademark rights of the licensee, are to ask any low-tions requirements regularly.
JUDGMENT BGH I ZR 93/12 from 27. March 2013 – Baumann
Trademark Act § 5 Abs. 2, § 6 Abs. 3, § 15 Abs. 2 and 4
A) An acquired by the Licensor during the contractual relationship chenrecht number plate goes before the Trademark Law of the licensee, this has also acquired during the run of the license agreement, because the position of the licensee in relation to the licensor after the Li-license- or concession contract is not better than that of a third party, uses an identical or similar to the trademark rights licensed characters for the first time.
B) To proof of a license- contract or permit, from the licensor derives a priority of its trademark law in relation to the trademark rights of the licensee, are to ask any low-tions requirements regularly.
BGH, Judgment of 27. March 2013 – I ZR 93/12 – OLG Karlsruhe
LG Mannheim
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The I. Civil Division of the Federal Court of the oral negotiation 27. March 2013 by the presiding judge Prof. Dr. Bornkamm and the judge Prof. Dr. Büscher, Prof.. Dr. Schaffert, Dr. Kirchhoff and Dr. Loeffler
hereby:
On appeal by the defendant, the judgment is of 6. Civil Division of the Court of Karlsruhe 11. April 2012 the cost point and far removed, the appellate court based on the brand counterclaim dismissed.
In the scope of the waiver, the thing is for a new hearing and decision, also about the cost of revision, referred back to the loading rufungsgericht.
By rights
Facts:
The parties argue on appeal even to the authority of the applicant, materials listed in the Counterclaim characters "CAVAION SIDE LOADERS BAUMANN" (hereinafter also: Attacked characters) for pages- to use cars or trucks as brand.
The defendant, die BULMOR Parts Center GmbH, is the holder of – mapped out below – with priority from 2. More 1979 for pages- and All-terrain registered colored (red and black) WortBild Marke No.. 1005694 (following: Widerklagemarke):
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Previously, the brand owner of the counterclaim on 1. January 1967 Founded by Rolf and Wolfgang Baumann as a partnership R. Baumann & Co., Gabelstaplerwerk Bühlertal, which was later converted into a limited partnership, and since 2005 to R. Baumann GmbH & Co. KG firmierte. After the insolvency proceedings had been opened against the assets of that company, acquired by contract with the defendant 1. and 3. August 2005 the insolvency of the debtor in property values and the counterclaim brand.
The applicant, a company with limited liability under Italian law, established in Cavaion, Italy, under the name of "Baumann S.r.l.". It produces and sells side loader. In this special form of the fork-lift truck, the lifting device is attached laterally.
Following the bankruptcy of the R. Baumann GmbH & Co. KG, the parties worked together first. They closed on 3. August 2005 a license agreement on the counterclaim Brand. In June 2006 the applicant announced the collaboration with the defendant at year-end. The applicant uses in its business since the attacked character.
The defendant has claimed, the applicant has served solely as the production site for the Germany-based company and was not independently active campaigning in Germany. The applicant has the designation "Baumann" with and without graphical design just because of a permission of the R. Baumann & Co. and its successor, later on-
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due to the trademark license agreement with the defendant, used. The defendant contends, after the termination of the license, the applicant is not be entitled, to use the impugned mark.
The defendant has – extent of the revision process of meaning – resist plaintively requested,
order the applicant under pain of penalties, to leave it under-, to allow use without the consent of the defendant, in trade, to the following re-sign for the goods given lateral and terrain forklift brand in excessive use and / or use, in particular, under this name pages- or forklift vehicles and their components- and offer spare parts and accessories, to bring in the Federal Republic of Germany on the market or introduce in the Federal Republic of Germany:
The defendant is also in action by stages information, eidesstattli-tion insurance and sought compensation for providing such information.
The applicant challenged the counterclaim. It maintained, she was transformed from the 1969 Rolf and Wolfgang Baumann Baumann founded Deten SpA. emerged, based in Cavaion. Since its inception, it has produced side loaders and sold to Germany. The name "Baumann" they have used in the sale of the devices produced by it in Germany. The parties agreed, Markenlizenzver that the contract should only become effective, when all outstanding issues of cooperation were clarified. There had not come.
In the counterclaim, the district court has sentenced the applicant by partial judgment and injunctive information and to submit an affidavit to the accuracy and completeness of the information. On appeal-
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drive, the defendant claims that it pursues alternative to the Fir menschlagwort "Baumann" R. Baumann GmbH & Co. Having KG. The loading rufungsgericht has a total counterclaim dismissed.
With their revision approved by the Court of Appeal followed the defendant desires based on their counterclaim counterclaim brand further. The applicant claims, dismissal of the appeal.
Reasons:
I. This Court has adopted, the defendant stood no claims for violation of the counterclaim and the company's brand-mark's the R. Baumann GmbH & Co. KG. For this it has executed:
The defendant had based the claims asserted primarily on the counterclaim Brand. The impugned mark encroaches upon the scope of protection of the mark by the defendant. Collision between the signs were due to average distinctiveness of the counterclaim Brand, high-gradiger signs and the goods identity confusion within the meaning of § 14 Abs. 2 No.. 2 Trademark. The impugned mark was covered, however, by using a priority prior right of the applicant in their Unternehmenskennzei-chen. The applicant is the same as the 24. June 1969 Baumann founded S.p.A.. in Cavaion. You have to use the house of label-strong corporate mark domestically in 1971 put-on. The impugned mark constitutes a use of the earlier priority in relation to the counterclaim brand company registration number of the applicant describes. The contested sign is marked by the word element "Baumann". Because the other descriptive suffixes "CAVAION SIDE LOADERS" and the graphic design did not alter. Widerklagemarke,
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the'll also marked by the word element "Baumann", encroaches upon the scope of the corporate registration number of the applicant. The plaintiff was not prevented, to rely on their counterclaim in relation to brand priority senior corporate ID. Although the defendant with the acquisition of the business of R. Baumann GmbH & Co. KG also acquired the rights to the company logos, the priority of a 1967 I have. However, this right is by task of the business operations in late 2007/early 2008 extinguished.
The applicant was not prevented with regard to the license agreement concluded between the parties, to rely in relation to the defendants on their business signs. Although the licensee to the licensor can not be challenged after the end of the license agreement, to have purchased own trademark rights to the licensed object. In case of dispute, however, there is the special, that the Unternehmenskennzei-tion of R. Baumann GmbH & Co. KG has lapsed. After the extinction of the earlier priority registration law, the defendant can not prevail with her in relation to the company marks the applicant later priority counterclaim brand.
The business characteristics of the R. Baumann GmbH & Co. KG, to which the defendant had their claims on appeal legitimately supported, they could derive any claims, because this right was extinguished.
II. The revision is successful. It leads the extent of the challenge repealing the Court of Appeal and remand the matter to the loading rufungsgericht.
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1. The revision is limited to the rescission of the judgment on appeal, where the Court of Appeals has denied the claims arising from the counterclaim Brand.
The defendant has the counterclaim on appeal primarily to the counterclaim brand and alternatively on the right to the mark of the company's R. Baumann GmbH & Co. Having KG. Despite the conform-action requests then are the different causes of action (per-zessuale claims) ago, because the defendant has based its claim on two different registration (vgl. BGH, Judgment of 15. March 2012 I ZR 137/10, Wheat 2012, 630 RN. 14 = WRP 2012, 824 – CONVERSE II; Judgment of 24. Ja-nuar 2013 – I ZR 60/11, Wheat 2013, 397 RN. 13 = WRP 2013, 499 – Peek & Cloppenburg III). The denial of the license plate from the corporate-led forth claims by the appellate court takes back the revision. The claims of the company names are therefore not enter the revision onsinstanz. In that regard, the present method differs from a situation of circumstances, in the court sentenced the defendant to the main argument and the defendant filing an appeal. Then the plea made dispute falls within the appeal instance to (vgl. BGH, Judgment of 29. January 1964 – V ZR 23/63, BGHZ 41, 38, 39; Judgment of 24. January 1990 – VIII ZR 296/88, NJWRR 1990, 518, 519). Pros lying against a counterclaim adverse decision is based on the company marks the claims issued, the complaint the defendant. If she takes out this decision, grows the dismissal of the counterclaim, if it is based on the company logos, force of law.
2. The counterclaim is allowed. This also applies to the injunctive contract. This is regardless of the formulation used there "in markenmäßi-
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ger use "sufficiently determined (§ 253 Abs. 2 No.. 2 ZPO). The use of terms such as "as a trademark" in an action request for marking the use to be prohibited act is often harmless according to the circumstances of the individual case, if the complained of action with specific infringing activity and where appropriate, ne statement of claim can be used to understand the terms (vgl. BGH, Judgment of 4. Sep-tember 2003 – I ZR 23/01, BGHZ 156, 126, 131 – I color trademark infringement). This is also the case here. The applicant claims that the contested mark-ing on their products and their letter- and business papers to distinguish their products from those of other companies.
3. Based on the findings made by the Court of Appeal-tions the pursuit of counterclaim injunctive can for infringement of trade mark by the defendant pursuant to § 14 Abs. 2 No.. 2 and Abs. 5 Trademark not be denied. The Court of Appeal is indeed applicable assumed, that the contested character of the applicant engages in the scope of the defendant's mark (dazu II 3 A). The adoption of the appellate court, the use of the impugned mark is a priority by prior right of the applicant in their company name "Baumann Srl" cov-ered, however, is not free from errors of law (dazu II 3 B).
A) The Court of Appeal was right to, that between word and figurative mark "Baumann" the defendant and the attacked character "CAVAION SIDE LOADERS BAUMANN" likelihood of confusion within the meaning of § 14 Abs. 2 No.. 2 Trademark is.
aa) Assessing the likelihood of confusion within the meaning of § 14 Abs. 2 No.. 2 MarkenG – just as in § 9 Abs. 1 No.. 2 Trademark – made taking into account all relevant circumstances of the case. Thereby be-
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is an interaction between the factors to be taken into consideration, in particular the identity or similarity of the signs and the identity or similarity of the goods with them or services as well as the distinctiveness of the earlier mark, so that a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the mark or by a high degree of distinctiveness of the earlier mark and vice versa. In this com-prehensive assessment of the likelihood of confusion caused to the overall impression given by the signs, -in particular, their distinctive and dominant components to (vgl. ECJ, Judgment of 24. June 2010 – C51/09, Slg. 2010, I5805 = GRUR 2010, 933 RN. 33 – Barbara Becker; BGH, Judgment of 9. February 2012 – I ZR 100/10, Wheat 2012, 1040 RN. 25 = WRP 2012, 1241 – pjur / puree).
bb) The Court of Appeal is assumed identity of goods and aver-age distinctiveness of the counterclaim Brand. It is further assumed, that there is high degree of similarity between the conflicting signs. Both labels by the word element "Baumann" ge-imprinted, the visually dominate the character. The other graphical elements have no determining influence on the overall impression of the characters. The word elements' CAVAION SIDE LOADERS "summarize the domestic traffic as descriptive information on. Do not shaped the impugned mark therefore. Because the goods are identical, average distinctiveness of the counterclaim brand and severe character similarity lies likelihood of confusion on. This evaluation considers the stand legal scrutiny.
B) The acceptance of the appeal court, the impugned Zeichennut-tion was "Baumann Srl" covered by a priority prior right of the applicant in its corporate mark, however, is not free from errors of law.
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aa) Basically, the suit mark in infringement proceedings, however earlier priority being certain trademark rights can be invoked against the who- (BGH, Judgment of 28. February 2002 – I ZR 177/99, BGHZ 150, 82, 92 – Hotel Adlon; Judgment of 9. October 2003 – I ZR 65/00, Wheat 2004, 512, 513 = WRP 2004, 610 – Leysieffer; Judgment of 14. More 2009 – I ZR 231/06, Wheat 2009, 1055 RN. 52 = WRP 2009, 1533 – airdsl). This presupposes, that the party, certain and the example refers to such a right, has its own prioritätsälte-res or at least coexistence legitimate trademark law or to enforce certain and have a corresponding registration law of a third party is empowered and engaged by the action brand within the scope of other labeling law. Of these standards, the Court of Appeal is also assumed. His assumption, the conditions a-ner being certain point assertion of earlier priority company-label characteristic of the applicant are met in the event of a dispute, however, does not withstand-ing the revisionsrechtli review.
bb) The appellate court, however, was right, that the applicant is not prevented from, to rely on their business signs, because the defendant itself has an older relative to the company's mark-the applicant Trademarks.
Although a plaintiff against a defendant's right to hold a contrary turn oldest teres Trademarks, through which he can forbid the defendant to use his license plate loading (vgl. BGH, Judgment of 17. More 2001 – I ZR 187/98, Wheat 2002, 59, 63 = WRP 2001, 1211 – ISCO; BGH, Wheat 2004, 512, 514 – Leysieffer; BGH, Judgment of 24. February 2005 I ZR 161/02, Wheat 2005, 871, 872 = WRP 2005, 1164 – SEICOM; Buescher Buescher in / Dittmer / Schiwy, Intellectual Property Copyright Media Law, 2. Ed, § 14 Markeng Rn. 60; Ingerl / Rohnke, Trademark Act, 3. Ed,
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§ 14 RN. 32). An older relative to corporate ID the applicant's trademark law, the defendant has not.
Considered so far is only the company names of the R. Baumann GmbH & Co. KG Buhlertal, that is transferred to the transmission of conduct of its business on the defendant (vgl. BGH, Judgment of 2. More 2002 – I ZR 300/99, Wheat 2002, 972, 974 = WRP 2002, 1156 – FROMMIA). This company logos had a priority of 1. January 1967 and that was older than the priority of the applicant. This marks the company's R. Baumann GmbH & Co. However, KG is extinguished by the rechtsfeh operating perfectly made findings of the court.
under § 5 Abs. 2 Trademark protection is formed of an intellectual property right by the actual use of the mark in the trade for identification of the business. Consequently, that basically only the name of a company is eligible for protection, under which it participates in the course of trade. The protection of corporate flag takes effect only, if the use of a name suitable for another, Cause confusion with the mark of the claimant. This protection eliminates therefore regularly, if the beneficiary either the operation of the business conducted by him give up or change the corporate mark in his characteristic peculiarity. Exceptionally, the protection of the corporate registration number is not lost, when the business operations will temporarily shut down, but preserved in its essential for the reopening inventory remains and if the intent and ability are given, continue it within such period, so that the closure of the relevant public believes it still appears as a temporary interruption (vgl. BGH, Judgment of 5. June 1997 – I ZR 38/95, BGHZ 136, 11, 21 F. – L'Orange; BGHZ 150, 82, 89 – Hotel
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Adlon; BGH, Wheat 2002, 972, 974 – FROMMIA; Wheat 2005, 871, 872 – Are you com-).
The Court of Appeal has found, that the business of the R. Baumann GmbH & Co. KG since 2007 was not continued as a separate business operations. At this time, the defendant was taken over by Terra Group and incorporated into this. The term "Baumann" was no longer used by the defendant to identify a conduct of its business, but used by the Terra Group only as a brand.
cc) The company name "Baumann Srl" the applicant is pri-oritätsälter as the counterclaim Brand.
(1) After the not challenged by the appeal findings of the court, the applicant is of the 24. June 1969 founded Baumann S.p.A.. identical. In 1980 a legal form under Italian law took place only, who let the identity of the company unaffected.
(2) The Court of Appeal was right to consider them further, that favor the plaintiff a right has arisen at a company marks domestically.
The protection of the corporate registration number according to § 5 Abs. 2 Sentence 1 Trademark results from innately distinctive names which is the name to reckon "Baumann" (vgl. BGH, Judgment of 30. January 2008 – I ZR 134/05, Wheat 2008, 801 RN. 14 = WRP 2008, 1189 Hansen-Bau) – with the inclusion of domestic use in trade (BGH, Judgment of 19. February 2009 – I ZR 135/06, Wheat 2009, 685
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RN. 17 = WRP 2009, 803 – ahd.de; Judgment of 31. More 2012 – I ZR 135/10, Wheat 2012, 832 RN. 44 = WRP 2012, 940 – ZAPPA).
The Court of Appeal has found, that the applicant company's mark since their 1971 has used domestically in trade and therefore has since that date a right to a corporate mark domestically. In contrast, the revision remembers nothing. Error of law are also not apparent.
(3) The company marks the applicant's priority older than the counterclaim Brand. It has to § 6 Abs. 3 Trademark a priority of 1971, while the mark of a priority 2. More 1979 has (§ 6 Abs. 2 Trademark).
dd) The acceptance of the appeal court, the defendant's brand reach into the scope of the enterprise identifier "Baumann Srl" the applicant pursuant to § 15 Abs. 2 Trademark a, holds the legal revision Nachprü-added was.
The appeals court is expected, it lies in front of sectoral identity and company names disponer over at least aver-age distinctiveness. In addition, the conflicting signs are highly similar. Then there was a risk of confusion between the priori tätsälteren company names of the applicant and the counterclaim mark within the meaning of § 15 Abs. 2 Trademark. In another context, the appellate court also accepted, the applicant can mark's company also proceed against the trademark even of a character because of their.
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The revision applies not against it, that the Court of Appeals affirmed the likelihood of confusion between the company marks the plaintiff and the defendant's mark. However, she says, citing the Court of Justice of the European Union, due to a corporate identifier could not be tackled as a trademark loading use. With these attacks, the revision does not penetrate.
Follows from the Court of Justice of the European Union, that a purely corporate excessive use any kind of the acts listed in. 5 Abs. 1 TMD is (vgl. ECJ, Judgment of 21. November 2002 C23/01, Slg. 2002, I10913 = GRUR 2003, 143 RN. 34 – Robeco / Robelco; Judgment of 16. November 2004 – C245/02, Slg. 2004, I10989 = GRUR 2005, 153 RN. 60 and 64 – Anheuser Busch; Judgment of 11. September 2007 – C17/06, Slg. 2007, I7041 = GRUR 2007, 971 RN. 21 – Celine). This case is not transferable to the converse case of a collision of an older business characteristics-label with a younger brand. The protection of the mark's company pursuant to § 5 Abs. 2, § 15 Abs. 2 and 4 Trademark is a mark only proper use of the colliding name ahead (vgl. BGH, Judgment of 16. December 2004 – I ZR 177/02, Wheat 2005, 419, 422 = WRP 2005, 605 – Räucherkate; BGH, Wheat 2004, 512, 513 F. – Leysieffer; BGH, Judgment of 14. April 2011 – I ZR 41/08, Wheat 2011, 623 RN. 44 = WRP 2011, 886 – Peek & Cloppenburg II).
For a preliminary ruling to the Court of Justice of the European Union on the type. 267 Abs. 3 TFEU is not offered, because the trademark directive is not applicable to those at issue here protecting a corporate plate in relation to a brand.
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ee) With success, but the revision applies to the acceptance of the loading rufungsgerichts, the applicant can after a license or concession agreement between you as Licensee and the defendants and their predecessors in title, that R. Baumann & Co. and R. Baumann GmbH & Co. KG, on its own right to the licensed characters – Here the company marks Baumann S.r.l. the applicant – appointed.
(1) The Court of Appeal is the starting point, however, as applicable, of assumed, that a licensee after termination of a license or concession contract the licensor can not be challenged, to have purchased own trademark rights during the term of the license agreement. It means, however,, in case of dispute must apply an exception otherwise, because the earlier priority corporate ID the defendant had ceased to exist as now. The plaintiffs further permission by the defendant no longer possible, now because the applicant would have priority over the earlier sign. Which can not be agreed.
(2) In the case of the Senate is recognized, that a licensee after termination of a license or concession contract the licensor towards can not rely on, to have purchased own trademark rights to the licensed characters during the term of the concession contract zenzoder Li- (vgl. BGH, Judgment of 27. February 1963 A ZR 180/61, Wheat 1963, 485, 487 F. – Micky-Maus-Orangen). Accordingly, the licensee to the licensor can not be on call, he could purchase when using this or a similar sign without conclusion of the license agreement itself is a sign right. The position of the licensee in relation to the licensor after the license or concession contract is not far better than that of a third party, the first is identical with the licensed marks or
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used similar characters (vgl. BGH, Judgment of 21. July 2005 – I ZR 312/02, Wheat 2006, 56 RN. 26 = WRP 2006, 96 – BOSS-Club).
The defendant has argued, the applicant was the company's mark due to a license agreement concluded orally with the first R. Baumann & Co., later, with the R. Baumann GmbH & Co. KG and from August 2005 due to the license agreement from 3. August 2005 used by the defendant. The Court of Appeal has made no adverse findings. Therefore, is in favor of the defendant's for the audit process can be assumed, that the applicant has used their corporate ID only because of a license or concession contract with the defendant and the legal predecessors in Germany. An appropriate authorizing the use of a corporate name by a third party is legally permitted (vgl. BGH, Judgment of 18. January 2001 – I ZR 175/98, Wheat 2001, 1164, 1165 = WRP 2001, 931 – buendgens; Fezer, Trademark, 4. Ed, § 30 RN. 103).
Has the applicant company marks its domestically but only on the basis of a first between her and her sister company, that R. Baumann & Co., later the GmbH & Co. And then uses KG as a result of a Li-zenzvertrags with the defendant, they can derive from their corporate mark against the defendant any rights, incurred during the Li-zenzvertragsverhältnisses. The applicant is to provide in this ratio as, as if their company names would be developed only with a priority to the end of the licensing relationship of the parties. That would, because the trademark license agreement between the parties 31. December 2006 no-det hat, after the revision procedure to be postulated to be correct presentation of the defendant 1. January 2007. The trademark of the defendants would be prioritized older (Priority 2. More 1979) as the company marks the
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Applicant. To the fact, that the company marks the R. Baumann GmbH & Co. KG is extinguished, it is irrelevant in this context.
(3) That conclusion is not invalidated by the fact, that the plaintiff regardless of location, has priority over any event, corporate ID at home. The applicant can rely on it so far though, that no one may be prevented from, to operate under his family name in the course of trade. This principle also applies for the benefit of a corporation as the applicant, that a German company with limited liability corresponds to, and accepted the name of their partner in their company (vgl. BGH, Wheat 2008, 801 RN. 24 F. – Hansen-Bau). The applicant may not thereafter be prohibited from running a business with the name of their partner Baumann, However, this does not justify the transition from a uniform company to use as a trademark of the attacked character.
4. The dismissal of the information on, Submission of affidavits Versicherung and damages related counterclaim requests may also not stand, because a violation of the defendant's trade mark is not ruled out by the use of a trade mark impugned mark by the applicant.
III. After the contested judgment should be set aside on appeal by the Respondent, where the Court of Appeal dismissed the counterclaim on the brand templated te counterclaim. The thing is in this new scope for negotiation and decision, also about the cost of revision, referred back to the Court of Appeals.
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The Senate is a final resolution of the dispute un-authorized parties, because the Court of Appeal – logical from his point – no finding as to an agreement between the applicant and the Baumann & Co. and below the Baumann GmbH & Co. KG and the defendant has ge-affected, that the applicant used their company names in Germany solely because of a concession contract. The court had accepted, that the defendants and their predecessors in title of the applicant have certainly implied permitted to use company label. But such an implied permission is not enough, to the emergence of a domestic company registration number in favor of the plaintiff with the priority of 1971 excluded in relation to the defendants and their legislation puts trickle. Rather, this is the conclusion of a AUTHORIZING maintenance- contract or license required.
Evidence, that are permitted to- or license agreement between the applicant and the first Baumann & Co. and below the Baumann GmbH & Co. KG and the defendant was, the defendant must lead. On this evidence, no low requirements to provide. Because of the special importance, which the occurrence of an appropriate Treaty with regard to the question, whether arising in favor of the recipient permission or license holder's own trademark rights in relation to the Permit-or licensor, is in commercial transactions in
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Usually occur as a documentation of conclusion. If there is no corresponding documentation, will be assumed as a rule of, over and beyond that there is no implied permission conclusion of a Ge-stattungs- or license agreement exists.
Bornkamm Buescher Schaffert
Kirchhoff Löffler
Lower courts:
LG Mannheim, Decision of 30.12.2009 – 22 The 22/08 –
OLG Karlsruhe, Decision of 11.04.2012 – 6 You 30/10 –