Sat, Oct. 15, 2005

Hotel Marks in Germany and Spain

.   In the matter 33 O 209/03, the Cologne District Court, Landgericht ruled on September 13, 2005 that a German trademark for hotels in Germany is not violated by the same mark used for a hotel in Spain even if the Spanish hotel is listed in the English and German-language fliers and English Internet presentations and works with a German bus operator which advertises in Germany and brings tourists to the Spanish hotel.

In addition to the trademark claim, the court addressed an unfair competition claim raised by the German trademark owner and determined that there is no civil liability under competition law because the customers exist in distinguishable markets which appear not to be in competition with each other.

Without explanation, the Dr. Bahr blog calls the ruling wrong. Bahr is in the northern city of Hamburg. The Hamburg courts tend to favor extreme positions when it comes to the Internet, advocating an extraterritorial approach to German law that other German courts appear to reject.

Since trademarks, like other intellectual property rights, confer legality upon a monopoly, the general rule is that they be constructed restrictively, and the Cologne court seems to properly affirm that rule. Also, the Cologne court respects the territoriality principle of trademark law.

Update: Reading the Bahr comment again, Bahr may not actually disapprove of the Cologne decision. A comma after Zu Unrecht would clarify what he means.

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