In several recent judgements, the German Federal Court of Justice (BGH) provided a few clarifications with respect to the advertising of companies with the same name.
GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg Essen and London www.grprainer.com/en explain: Advertising is the most important element of the targeted influence on customers. Nevertheless, this is not free from legal restrictions. Therefore, companies must comply with legal provisions when placing their advertisements.
In its judgments of 24 January 2013 (Az.: I ZR 58/11 - I ZR 61/11 and I ZR 65/11), the Federal Court of Justice decided that companies with the same name that are operative in separate economic areas might, considering certain formalities, also advertise themselves in the other company’s respective area. In the legal dispute, two clothing chains with the same name were arguing about a nationwide advertisement of one of them operating in western, southern and central Germany. The other one, active in northern Germany, worried about the fact that its customers could confuse it with the other company. Therefore, the advertising was prohibited by the appeal court.
However, the BGH dismissed the legal action of the north German company. Even though the Court recognized that the nationwide advertising of one of the companies unsettled the existing trademark-related state of equilibrium between the two independent companies, it prioritized the recognised interest in nationwide advertising. Nevertheless, in the opinion of the judges it has to be suitably clarified in the advertising that there are two companies with identical names and from which the advertising stems.
The Law against Unfair Competition (UWG) entitles competitors to proceed by issuing warnings to respective companies. Subsequently a legal injunction will be also possible. It is advisable to consult a lawyer practicing in the area of advertising law, who will help to avoid litigation. To enforce their claims, the concerned parties should also seek for advice of a qualified lawyer.