Brands Update — April 2014: German Federal Court of Justice — ‘OTTO CAP’

The German Federal Court of Justice has found that a party does not need to intend to take unfair advantage of the distinctiveness of a mark without due cause; retail services of clothing are similar (to a certain extent) to clothing.

The respondent, a retail company in the fashion sector, had sold baseball caps under (among others) the sign ‘OTTO CAP’. The plaintiff, a German mail-order company ‘OTTO’ (Otto GmbH & Co. KG), filed a lawsuit against the respondent (inter alia) for damages in connection with the infringement of its word mark ‘OTTO’, which had a reputation in Germany…

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