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LG Düsseldorf: “Malle” as a trademark has legal status

By judgment of 29 November 2019, the 8th Chamber of Commercial Matters of the Regional Court of Düsseldorf ruled that the proprietor of the registered EU trade mark ‘Malle’ may prohibit party organisers from promoting and promoting parties with the designation ‘Malle’ without his consent. Organize.

In more than 100 injunction proceedings, the proprietor of the EU trade mark ‘Malle’ had taken action against party organisers. Only some had opposed the injunctions. Now, for the first time, the Regional Court of Düsseldorf has ruled.

The “Malle” brand has been registered at euIPO in Alicante since 2002 for the services “Entertainment, Sporting and Cultural Activities, Party Organisation and Party Implementation”.

The proprietor of the trade mark had first warned the Malle Party organisers and then submitted corresponding injunction applications to the Regional Court of Düsseldorf. As a result, several organizers have been banned from referring to their entertainment events, which are celebrated with catchy music and alcoholic beverages like in Mallorca, as “Malle Party”, “Malle in the tent”, “Malle Break” or – as in the dispute 38 O 96/19 – “Malle auf Schalke”.

In its judgment of 29.11.2019, the 8th Chamber of Commercial Matters of the Regional Court of Düsseldorf stated that the EU trade mark ‘Malle’ for parties has legal basis in the context of the interim injunction proceedings carried out here. The trade mark ‘Malle’ is registered. The fact that the European Trade Mark Office in Alicante has had an application for the deletion of the ‘Malle’ trade mark for entertainment events since February 2019 does not alter the legal status of the trade mark. In particular, the trade mark is not manifestly incapable of protection. In order to do so, it would have to be established that, at the decisive time of registration in 2002, the designation ‘Malle’ was a geographical name for the island of Majorca and should not have been registered as a geographical name. However, the applicant did not sufficiently present this and made it credible in the interim injunction proceedings before the Landgericht Düsseldorf.

Anti-competitive misleading by claiming to be proprietorship of a trade mark?

The designation of a party as “Malle auf Schalke” is also origin-indicating and not only descriptive. The consumers addressed by the party’s application recognize that the advertisement and the party have a connection to a particular organizer, sponsor or licensor of a series of events. Such a reference is missing, for example, in purely descriptive terms such as carnival party or Christmas party.

The Landgericht also considers that there would also be a risk of confusion if they see, on the one hand, the word mark ‘Malle’ of the trade mark owner and, on the other hand, the attacked sign of the party organiser ‘Malle auf Schalke’.

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Written by Marian Härtel

Marian Härtel specializes in the areas of competition law, copyright law and IT/IP law and specializes in computer games, sports, marketing and streamers/influencers. He supports start-ups in their development, assists them with all legal problems and supports them in business development.

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