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“Radiator Grille (Kühlergrill)”

Decision of the Federal Supreme Court (Bundesgerichtshof) 7 March 2019 – Case No. I ZR 61/18

  1. 1.

    The limitation of Art. 12(1)(c) old CTMR and Art. 14(1)(c) new EUTMR only applies if the sign similar to another’s Union trade mark has (also) been used in the course of trade as an indication of the intended purpose of a product, in particular as an accessory or spare part. This cannot be denied a priori in the case of a spare part (in this case: radiator grille) which is not limited exclusively to the reproduction of a trade mark, but contains a mounting device for the embodiment of the Union trade mark (in this case: the Audi emblem), such trade mark being identifiable (continuation of decision of the Federal Supreme Court, 12 March 2015, I ZR 153/14, BGHZ 205, 1 para. 33 – BMW-Emblem).

  2. 2.

    b) If it can be made clear in the text of an internet offer that an advertised spare part is suitable for certain vehicle models, there is no need to attach a mounting device in the form of the vehicle manufacturer’s trade mark to the spare part in order to draw attention to this purpose.

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Translated by David Wright.

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Regulation (EC) No. 207/2009, Art. 12(1)(c); Regulation (EU) 2017/1001, Art. 14(1)(c). “Radiator Grille (Kühlergrill)”. IIC 51, 113–122 (2020). https://doi.org/10.1007/s40319-019-00898-7

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Keywords

  • Spare parts
  • Use
  • Similarity
  • Necessity of using trade mark sign
  • Public expectation of spare part appearance
  • Trade mark sign visual part of original