(Trademark law and German Unfair Competition Act)

May a manufacturer of toy models use a third party’s trademark on a replica truck without authorization?

The BGH (German Federal Court of Justice) recently had to decide the following case:

As can be seen below, a model-making company had sold a toy truck and – without being authorized by the owner of the DACHSER trademark – used the DACHSER – Food Logistics sign on the truck body. The owner of the well-known DACHSER trademark objected to this and cited violations of the Trademark Act and the Unfair Competition Act.

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Recently, the BGH has decided that due to the decades of customary practice of using detailed replicas of reality for toys and models and the respective expectation of consumers, there is a legitimate interest on the part of the toy manufacturer being allowed to distribute toys and also model-buildings on which well-known trademarks are affixed, insofar as they show a miniature representation of reality.

The Proprietor of a Trademark has no reason to oppose that his trademark is applied onto toys.

As to the opinion of the BGH this does not indicate unfair exploitation within the meaning of Section 14 (2) sentence 1 no. 3 German trademark law (MarkenG), if it refers merely to the adoption of an original design that exists in reality.
This also applies to well-known trademarks.

The judgment can be seen here

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