Designation 'Germany' Misleading for Goods from China

The Higher Regional Court (OLG) Frankfurt a.M. recently had to decide whether products bearing the additional term 'Germany' constitute misleading competitive conduct if the products are in fact manufactured abroad.

The parties to the dispute are both engaged in the field of tool manufacturing. The defendant company advertised its own products with its company logo. The logo is registered as a trade mark and is bearing the designation 'Germany'. However, the products were manufactured entirely in China.

The claimant is of the view that the advertising is misleading and therefore constitutes unfair competition. Consumers would be deceived as to the origin of the products.

The defendant company, by contrast, sees in the designation 'Germany' in the logo merely a reference to the company's registered office.

Already the Regional Court (LG) Frankfurt a.M. in the first instance upheld the claimant's position and ordered the defendant company to cease the practice.

The court's decision regarding the designation 'Germany'

The appeal by the condemned company was unsuccessful.

With Urteil vom 15.10.2015 – Az. 6 U 161/14 the Higher Regional Court (OLG) Frankfurt a.M. decided that goods bearing the designation 'Germany' must have been manufactured in Germany. Otherwise, there is misleading conduct, as consumers would regard the striking designation 'Germany' as an indication that the products were manufactured in Germany.

It would be different only if the relevant public did not perceive the sign as a trade mark but as a business identifier. However, this was contradicted by the absence of the company's legal form designation – GmbH & Co. KG – in the logo and the ® symbol for a registered trade mark.

Furthermore, the misleading character is not excluded by the fact that the defendant company uses the designation 'Made in Germany' on products manufactured in Germany. For it cannot be assumed that every interested party is familiar with the company's entire product range and therefore draws the necessary conclusion when encountering a product without this designation.

Conclusion

Even a registered trade mark does not confer upon its proprietor the right to use it in every conceivable manner. When geographical designations on a product do not correspond to the product's origin, caution is required. In order to avoid misleading competitive conduct, clarifying additions such as 'Made in China' should be included.