Dispute over Otto – Otto's Burger

The Hamburg restaurant chain "Otto's Burger" is permitted to continue using that name. The Regional Court (LG) Hamburg dismissed the lawsuit brought by the well-known mail-order company Otto. The latter claimed that its rights in the company identifier "Otto" were infringed.

Under the designation "Otto's Burger", several restaurants in Hamburg and a so-called food truck are operated.

The mail-order company Otto is of the opinion that the use of the designation "Otto's Burger" infringes its rights in the outstandingly well-known company identifier "Otto" and brought an action against the restaurant chain.

The operator of "Otto's Burger" disagreed and defended against the action. The Hamburg company argued that Otto is a common first name and surname, under which a large number of enterprises operate, and that the public would not associate the designation "Otto's Burger" with Otto mail order or make a mental connection thereto.

The court's decision on Otto's Burger

The LG Hamburg found no infringement of rights in the use of the designation "Otto's Burger" and dismissed the action brought by the mail-order company byjudgment of 10.07.2018 – Az. 406 HKO 27/18.

The judges in Hamburg proceeded on the assumption that the company identifier "Otto" was outstandingly well-known in mail-order trade with non-food articles, in particular clothing. However, a risk of confusion was ruled out, since in the court's view the relevant public would not associate "Otto's Burger" with "Otto" as the company identifier of the mail-order company. For this reason, the business fields were too different. Since the mail-order company did not engage in food products and did not operate restaurants, it was more than remote in the mind of the average consumer that the burger restaurants could have anything to do with the mail-order trader.

Furthermore, the court pointed out that "Otto" is a common first name and surname, so that an observer of the mark would assume that some real or fictional person named "Otto" had been the namesake.

Conclusion

An infringement of the company identifier does not exist. In particular, there is a lack of a risk of confusion, because the relevant public does not establish a mental connection between the mail-order company and the burger restaurants.