In the issue 8-9/2023 of “GRUR-RR – Gewerblicher Rechtsschutz und Urheberrecht, Rechtsprechungs-Report”, BOEHMERT & BOEHMERT lawyer Dr. Julian Wernicke discusses the judgement of the OLG Düsseldorf of 27.04.2023 (case: 20 U 41/22) on the distinction between the use of a trade mark and the use of a purely descriptive sign.
Specifically, the question is whether the plaintiff’s trade mark “Eieiei” is infringed by the text “Ei, Ei, Ei, Ei, Ei” on packaging for egg liqueur. For this to be the case, the disputed sign would have to be used as a trade mark, i.e. the sign would have to contain an indication of the origin of the product. According to Dr. Julian Wernicke, the Düsseldorf Higher Regional Court was right to reject this and dismiss the action. The relevant public perceives the product presentation as a particularly catchy, keyword-like indication of ingredients (Ei is German for egg) or as an advertising campaign in the sense of a particularly strong expression of surprise (German expression: Ei, ei, ei).
You can read the complete judgement of the OLG Düsseldorf and the comment of Dr. Julian Wernicke in issue 8-9/2023 of GRUR-RR from page 349 or download the article as a registered user of Beck Online here.