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“MOST-Pralinen”

Trade Mark Act, Sec. 14(2)(1) and (2)

  1. 1.

    There is no impairment of the trade mark’s function as an indication of origin if the advertisement appears in an advertising block that is clearly set apart from the list of hits and is appropriately identified, and itself contains neither the trade mark nor any other reference to the trade mark holder or the products offered for sale under the trade mark.

  2. 2.

    The knowledgeable Internet user has no occasion to assume that when he enters a trade mark as a search word the AdWord advertisements appearing in the advertisements column only refer to the products and services offered by the trade mark proprietor or an enterprise economically linked to it.

  3. 3.

    If the Internet user expects offers that do not originate from the trade mark proprietor or an enterprise linked with it, there is no need for a reference to the absence of an economic link between the advertiser and the trade mark proprietor to exclude an impairment of the trade mark’s function as an indication of origin.

  4. 4.

    The mere fact that goods or services of the kind marketed under the trade mark are referred to by means of generic terms in the advertisement can as a matter of principle not cause an impairment of the trade mark’s function as an indication of origin.

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Decision of the Federal Supreme Court (Bundesgerichtshof) 13 December 2012 – Case No. I ZR 217/10. “MOST-Pralinen”. IIC 45, 110–116 (2014). https://doi.org/10.1007/s40319-013-0156-9

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