Is Internet travel agency "mcweg.de" confusable with "weg.de"?

The Higher Regional Court (OLG) Cologne had to decide in a trademark dispute between two Internet travel agencies whether the later-priority German word-figurative mark "mcweg.de" infringes the earlier registered German word-figurative mark "weg.de".

The travel provider and proprietor of the German trade mark and identical business designation "weg.de" sent a cease-and-desist letter to the competing travel provider "mc-weg.de" due to infringement of trademark rights and demanded cessation of use and deletion of the mark. The claimant was of the opinion that the competitor's designation was confusable with his own and therefore a trademark infringement existed. Mcweg.de did not issue an undertaking to cease, so the matter proceeded to legal proceedings in the second instance before the Higher Regional Court (OLG) Cologne.

Court's decision

In itsdecision of 22.01.2010 – Az. 6 U 141/09– the Higher Regional Court (OLG) Cologne ruled that there is no likelihood of confusion under trademark law between the marks in suit and the signs attacked. This would be necessary for the asserted claims for injunction, information, accounting, destruction, deletion and others, so that the entire action was to be dismissed.

Although there was identity of goods or services, because both the mark "weg.de" and the designation "mcweg.de" were registered for travel offers on the Internet, the similarity of the signs was low. The attacked sign would be pronounced as "mäcweg.de" and contained an additional syllable, so that a phonetic difference existed. Furthermore, the beginning of the designation, which is important for phonetic distinction of marks, was clearly different. This resulted from the fact that the first three letters "mcw" cannot be pronounced without an additional vowel and the public recognises the reference to the Scottish prefix "mc" pronounced as "Mäc".

Other claims, in particular under competition law, likewise do not exist. The dispute value for the appellate proceedings was fixed at EUR 270,000.00.

Conclusion

The Higher Regional Court (OLG) Cologne correctly denied a trademark infringement in this case, since there is a clear phonetic difference between the German marks to be assessed by the court.