Weird Legal view – Trademark trolls in German Woods

Since the Pi takedown a few English readers are on this otherwise German blog, I will summerize the last to posts, since it has implications to zazzle and their worldwide offer including Germany and hence lies in German jurisdiction even if designer and zazzle do not reside in Germany.

A few weeks ago I received the German version of a cease and desist notification. German cease and desist notifications come with legal fees from the very beginning. And because of a nasty happit to evaluate the worth of a trademark 50,000 Euros and more as a rule, you are forced to take the help of an attorney yourself if you choose to resist.

Some company, which I personally view with low respect, trademarked the word „shopaholic“ in the Nizza class 25 with the German trademark registrar and two days after the opposing period they started to send out cease and desists. Since the word with its meaning is trademarked, any graphic variation and anything that presents the likelihood of confusion can’t be used anymore by their competitors. This includes the word across the chest of a t-shirt, which the Print-on-Demand service www.spreadshirt.de offered, designed by me, according to opposing attorney and a judge from the Landgericht Hamburg.

shirt with shopoholic

Although I do not sell T-Shirts or any other textile for that matter and Nizza 25 only concerns companies that deal with textiles, I received this darn notification. Some time a ago the high court in Berlin ruled in a similar case, that the wearer of a shirt sees the text „Held der Arbeit“ (hero of work) as funny praise of the wearer and does not imply the use as a trademark thus connecting the text with the origin of that T-Shirt. It is not recognized as trademark.

Happy about this overdue, sense making ruling, I referred to the ruling pointing out, that my shirt uses „shopoholic“ as selfincriminating expression and is recognized as such by wearer and t-shirt reader, this cease and desist doesn’t concern me.

A lower court than the „Kammergericht Berlin“ the „Landgericht Hamburg“ ruled, that despite the fact, that I don’t sell shirts and despite the fact, that „shopoholic“ has a strong generic meaning I am to cease and desist und to pay for all legal fees. I went to a laywer myself. Payed for the assessment and the application for financial aid. Due to a lack of expectation, the legal battle could be won by me, legal aid was denied thus confirming again, that Hamburg Court is nuts to believe that we are all trademark zombies and look for trademark signs where ever we see a shirt with generic text like „shopaholic“ across the chest. And worse, I was made responsible for an offer I didn’t make. I don’t run www.spreadshirt.de. SPRD.net AG, Germany is responsible for all content and all offers. I’m the designer not the printer nor the seller of T-Shirts on the print on demand site. I provided a service for spreadshirt and receive a fee for the usage by spreadshirt on www.spreadshirt.de on a usage by usage basis payable if the sale was successful.

This ruling as devastating implications, since any designer mentioned on the customers sites now risks a cease and desist notification for real and perceived infringements, connected with their work. Just imagine stockwork artists barely aware where, when and what their work is used for and work that may change after a the initial inspection. Not to mention the effort and costs it would take to keep track of your work and to assess the risks over and over again.

It is a pretty mess this judge Enderlein from the Landgericht Hamburg created.

And as Law Professor from Stanford University Mark Lemley, the Kammergericht Berlin and I see it, it is totally out of this world to think, that generic text in common fonts have any other meaning as its literal meaning and are an expression of the wearer and nothing else. It’s not a trademark usage. trademark ruling doesn’t apply.

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