shall be ensured by both the manufacturer and distributor in all stages of the supply chain when made available on the Union market so that an act against unfair competition is avoided. In particular, only the textile fibre names listed shall be used for the description of fibre compositions on labels and markings of textile products, cf. art. 5, Annex I of Reg. (EU) No 1007/2011. To prevent that end users are mislead by the names and descriptions of the textile product, the respective information is in general to be provided in the official language(s) of the Member State on the territory of which the textile product are made available to the consumer. Further, the information shall be visible before the purchase, regardless whether on-site or via the Internet.
The textile fibre names “Cotton”, “Acryl” and “Acrylic” respectively, are not foreseen in the German version of the Annex of the Textile Regulation. The Higher Regional Court of Munich, Germany, decided that both designations “Acryl” and “Acrylic” are obviously not permitted as they are not listed and the missing prefix “Poly-“ for “Polyacryl” might even lead to the wrong assumption that a different textile fibre like “Modacryl” was used. However, the Court held that the formal offence of using the English designation “Cotton” instead of the German term “Baumwolle” shall not constitute an infringement under German Unfair Competition Law. It put forward that the necessary threshold of a tangible impairment of the interests of competitors and consumers had not be crossed as the term “Cotton” was used in a descriptive manner and colloquially on the German market for “Baumwolle”. Insofar, it cited an earlier decision of the German Federal Supreme Court in trademark matters adjudicating that the designation COTTON LINE as a company´s name was devoid of any distinctive character in connection with clothing and purely descriptive. Furthermore, despite the binding EU provisions the Court found that consumers were not deprived of any relevant information so that the use of the term remains legally unobjectionable, cf. OLG München, 6 U 2046/16.
When designing new labels for textiles and marketing clothing on a company´s website, business operators should nonetheless strictly comply with the wording of the EU provisions. Even minor variations may easily be objected to and prosecuted.
are quite often subject to trademark litigation as they might infringe third party`s better IP rights. In the textile sector, it is common to use designations like first names and initials as model names next to the company´s leading brand for clothing.
In the case at issue, a textile business company marketed unique items and used various first names or initials for the purpose of distinguishing and individualising the items for purchase order and in shipment. Each name, like Ronja, Isa, Mo M., was only used once and not directly attached to the clothing. The claimant, however, is owner of a German trademark MO. M enjoying protection i.a. for clothing in class 25. The Regional Court of Hamburg, Germany, decided that the use of a highly similar designation for identical goods clearly constitutes a trademark infringement due to a likelihood of confusion against the background that the designation was used in a trademark like manner. This requires that - in view of the target public - the company has at least used the designation also for distinguishing its own products from those of other undertakings performing the essential trademark function. It shall merely be important how the designation was perceived by the relevant public. The intended purpose by the company remains irrelevant. In consequence, such a designation might not be classified as a freely usable order reference, cf. LG Hamburg, 312 O 88/16.
Textile business companies should not rely on designations being used as internal order references to be classified as such by a court. Unexamined usage of model names remains risky unless it is opted for using purely descriptive designations.
|Nils Wolfgang Bings, LL.M. IP (GWU)
Partner, Head of Food Law & Regulatory
Compliance FMCGs (Germany)
T: +49 221 534098-0
F: +49 221 534098-28