Trade Mark Infringement Through Ostalgia?

Although the symbols of former Eastern Bloc states 'CCCP' and 'DDR' are now protected as trade marks for clothing items, third parties are permitted to apply them to clothing items if consumers regard the applied symbols merely as having a decorative character and do not infer from them the manufacturer of the clothing. In such a case, the use does not constitute trade mark infringement.

The claimant in the first proceeding is the proprietor of the word mark 'DDR' registered for, among other things, clothing items. He was also the proprietor of a figurative mark registered for textiles depicting the state emblem of the DDR. The defendant advertises and distributes T-shirts bearing the designation 'DDR' and its state emblem. The claimant sought to restrain the defendant from further infringement of the trade mark.

In a second proceeding, the use of the letter sequence 'CCCP' together with the hammer-and-sickle symbol on T-shirts was warned against as constituting trade mark infringement. The letter sequence 'CCCP' stands as the abbreviation for the Cyrillic spelling of the former USSR. The claimant is a licensee of the word mark 'CCCP', which is registered for certain clothing items, including trousers and overalls.

Court Decision

Both actions (Judgment of 14.01.2010 – Az. I ZR 82/08; I ZR 92/08) were unsuccessful at the final instance. The Federal Court of Justice (BGH) decided that the trade marks of the claimants were not infringed by the application of the symbols of the former Eastern Bloc states to clothing items.

The trade mark law claims presupposed that the public would perceive imprints applied to clothing items as an indication of the origin of the products from a particular undertaking and not merely as a decorative element that might vary according to the type of motif. However, consumers perceived the symbols of the former Eastern Bloc states applied to the front of T-shirts exclusively as a decorative element and not as a product designator.

Conclusion

In the context of the 'Ostalgia' wave, names and symbols of state entities that no longer existed experienced a revival. According to the decision of the highest German court, however, there is no trade mark protection for these old designations. Before using well-known symbols on textiles, one should nevertheless obtain information about any possibly existing intellectual property rights.