The Federal Court of Justice decided in two cases that the use of Eastern Bloc symbols as imprints on clothes does not constitute use as a trademark as the relevant public does not perceive them as indications of commercial origin.
Manfred Jansen was the owner of the word marks "CCCP" (abbreviation of the Cyrillic spelling of the former USSR) and "DDR" (German abbreviation of the former GDR) and of the figurative mark for the hammer-and-sickle-symbol (the coat of arms of the former GDR), registered for clothes such as trousers and overalls.
In the first case, the claimant was the licensee of the word mark "CCCP". He sold t-shirts with the imprint "CCCP".
The licensee and, in the second case, Manfred Jansen claimed trademark infringement by the defendant who sold, in its online-shop, clothes with imprints of the hammer-and-sickle-symbol (the coat of arms of the former CCCR) and the letters "CCCP" and of the coat of arms of the former GDR and the abbreviation "DDR".
In the first case, both the Regional Court of Hamburg and the Court of Appeal of Hamburg dismissed the infringement claim on grounds of lack of use as a trademark.
In the second case, the Regional Court of Munich rejected the infringement claim, whereas the Court of Appeal of Munich decided in favor of Manfred Jansen.
On further appeal, the Federal Court of Justice said that the use of the Eastern Bloc symbols as imprints on clothes did not infringe manfred Jansen's trademarks. The Eastern Bloc symbols were not used as trademarks as they would not be perceived by the relevant public as indications of origin.
The court stated that, in general, it depended on the type, the placing, or the habituation of the sign if the public perceived it as an indication of origin of a particular company or only as a decorative element. However, unlike sewed labels at the inner side of clothes, imprints were generally not perceived as an indication of commercial origin but, rather, as decorative elements - unless they had become well-known.
The court said that in the cases at issue the relevant public perceived the Eastern Bloc symbols as descriptive symbols of the former Eastern Bloc and not as indications of a specific commercial origin. Consequently, the use of the abbreviations "CCCP" and "DDR" as well as the coat of arms of the former GDR as imprints on clothes did not constitute use as a trademark and therefore did not infringe Manfred Jansens' trademarks.
As a result, the Federal Court of Justice confirmed the decision of the Court of Appeal of Hamburg in the "CCCP" case. It annulled the decision of the Munich Court of Appeal regarding the "DDR" sign and the coat of arms of the former GDR.
The decisions are in line with the recent decisions of the Federal Patent Court (Decision of 15 July 2008, 26 W (pat) 4/05 - "Former GDR National Coat of Arms" and decision of 21 January 2009, 26 W (pat) 2/08 - "CCCP") in which the court held that Eastern Bloc symbols are not an indication of commercial origin and therefore cannot be used as trademarks by third parties. From the consumers' point of view, Eastern Bloc symbols are indirect indications of geographical origin which belong to the public domain and lack any indicative character.
Following the decisions of the Federal Court of Justice and the Federal Patent Court, Manfred Jansen's trademarks have now been cancelled.