Trade mark infringement through depiction on trade fair site plan?

Is the use of a trade mark on a site plan for locating a trade fair stand a use as a trade mark? This is what the Regional Court (LG) Cologne had to decide.

A company operating in the building materials sector prepared a site plan in advance of a trade fair. In addition to the company's stand position, the stand positions of competitors were also shown. The respective trade marks of the companies were also used.

One of the competitors, holder of a German word/figurative mark, sent a cease-and-desist letter to the building materials company. The competitor considers the depiction of the mark without the consent of the mark holder to be a trade mark infringement.

The building materials company refused to pay the cease-and-desist costs, whereupon the competitor filed a lawsuit.

The court's decision

By judgment of 07.03.2017 – Az. 33 O 116/16 the LG Cologne rejected a claim by the competitor and dismissed the action. In the view of the Cologne judges, there was no justified cease-and-desist letter. No trade mark infringement was found to exist.

The LG Cologne made clear that the use of a trade mark on a site plan for locating a trade fair stand does not constitute use as a trade mark. The building materials company did not use the mark to designate its own goods or services. The relevant public would not assume that goods and services of the other company could be obtained at the one stand. The use of the sign served to describe the locational position of the stand.

The court also rejected dilution of reputation. In the court's view, the building materials company referred solely to the location of the trade fair stand, but not to the competitor itself or its products.

Conclusion

Not every use of a protected sign constitutes a trade mark infringement. This must be examined on a case-by-case basis, which is why legal advice should be obtained beforehand.