The plaintiff is the owner of the sports brand PUMA, whose logo with the leaping cat of prey is universally known. The defendant has been operating the PUDEL trademark since 2006, which depicts a leaping poodle on its clothing in the same way. PUMA felt that its rights had been infringed by the parody of the later-priority trademark and sued to have the trademark canceled.

The court agreed with the opinion of the lower courts and ordered the defendant to cancel the PUDEL trademark (judgment of April 2, 2015 – I ZR 59/13).

Characters are similar

Despite the obvious differences, the signs are similar within the meaning of trademark law. A likelihood of confusion within the meaning of § 9 para. 1 No. 2 MarkenG does not exist, but the defendant exploits the distinctive character and the reputation of the well-known trademark. Thus, there is an infringement of § 9 para. 1 No. 3 MarkenG, as the defendant benefits from the similarity of the two trademarks and thereby attracts attention to its products which it would not have received otherwise.

Cancellation even without risk of confusion and despite parody

The cancellation of a trademark can be demanded by the owner of a well-known trademark even without a likelihood of confusion if the two trademarks are so similar that the relevant public associates them with each other. In the present case, the fundamental rights to free artistic activity and freedom of expression must take second place to the trademark right, which is also protected by the constitution, since the protection of fundamental rights does not allow the defendant to register its own trademark right for identical or similar goods. Even a well-made parody does not change this.