Higher Regional Court (OLG) Frankfurt: trademark infringement not enforceable via the UWG

By order of 3 February 2026, Az. 6 W 165/25, the Higher Regional Court (OLG) Frankfurt am Main has issued a decision of considerable practical significance regarding the interface between trademark law and competition law. The central issue is whether a competitor can pursue a trademark infringement by a third party via the German Act Against Unfair Competition (UWG), even though the competitor itself is not the proprietor of the trademark in question.

The court rejected this and made clear that such a "diversion" of trademark law claims via the UWG is impermissible.

The facts

The interim injunction proceedings were based on a typical competitive scenario: two undertakings compete with each other and distribute comparable products via identical or at least overlapping distribution channels, in particular in online retail.

The respondent offered, inter alia, the following metal sign via Amazon.de

The offer text contained the following notice:

"Notice: Retro metal sign with historical depiction as a decorative element. The trademark proprietor has not consented to the offering and sale of the product. The product is therefore not freely tradeable. It may only be used for private purposes."

According to the applicant's view, this offer constituted a trademark infringement. However, the applicant itself was not the proprietor of the trademark in question and did not hold any licence or other right to enforce the trademark.

Instead of involving the actual trademark proprietor or asserting its own protective rights, the applicant chose a different approach: it based its claim for an injunction on competition law. Specifically, it argued that the trademark infringement simultaneously constituted a breach of § 3a UWG (unlawful conduct), namely a so-called market conduct rule.

The reasoning behind this is widespread in practice: if a provision is intended to regulate market conduct, a breach thereof can be pursued by competitors on competition law grounds, regardless of whether they themselves are directly affected in their own rights.

The court's decision

However, the Higher Regional Court (OLG) Frankfurt firmly rejected this approach. In the court's view, there is already a lack of the central prerequisite for a claim under § 3a UWG: trademark law provisions generally do not constitute market conduct rules.

In its reasoning, the court placed particular emphasis on the structure of trademark law. This was designed as an independent system of protection which deliberately establishes who is entitled to enforce claims. These include, in the first instance, the trademark proprietor as well as, where applicable, licensees or other entitled parties.

This legislative valuation must not be circumvented by third parties, in particular competitors, gaining the status of claim holders via the UWG. Such an extension would undermine the clear allocation of competences in trademark law.

According to the court's view, this becomes particularly clear from the fact that trademark law deliberately does not provide for any general "market surveillance mechanism". It is precisely not the task of any market participant to pursue trademark infringements. Rather, the decision on enforcement of rights rests with the trademark proprietor itself.

The court furthermore emphasised that not every breach of law automatically constitutes an act of unfair competition within the meaning of the UWG. Rather, a provision is required which is intended specifically to regulate the conduct of market participants in competition. This prerequisite is generally not met in the case of trademark law provisions.

The court also rejected the further allegation raised against the respondent that it created a misleading impression as to marketability within the meaning of No. 9 of the Annex to § 3 (3) UWG.

No basis for a claim: why trademark infringement cannot be pursued via the UWG

The decision thus focuses on a clear demarcation between two legal regimes:

• Trademark law: protection of individual exclusive rights with a limited circle of entitled claimants
• Competition law (UWG): protection of fair competition and market participants as a whole

The Higher Regional Court (OLG) Frankfurt makes clear that these systems must not be arbitrarily intermingled. In particular, the UWG may not be used to circumvent the intentionally restricted active legitimation in trademark law.

The decision thereby also makes clear that a trademark infringement does not automatically constitute a competition law-relevant act. Rather, the fundamental separation of the systems of claims remains in place.

Conclusion

With its decision, the Higher Regional Court (OLG) Frankfurt strengthens the independence of trademark law and sets clear boundaries for the application of competition law. A trademark infringement cannot be pursued via the UWG if the party asserting the claim is not itself authorised to enforce trademark law claims.

AVANTCORE has particular expertise in both trademark law and competition law and provides comprehensive advice to undertakings on the strategic protection and enforcement of their intellectual property rights. We support you both in the development of effective trademark strategies and in the legally secure pursuit of infringements and the defence against unfounded claims. Particularly in the area of tension between trademark law and the UWG, precise legal classification is essential.