|The logo in question|
For those of you that attended the JIPLP/GRUR event, I briefly touched on this case during the panel discussion as an example of how the application of unfair competition law in Germany is influenced by EU laws. The background of the case and the BGH's decision have been expertly summarised by Anthonia Ghalamkarizadeh on Marques Class 46 (see here). In a nutshell: the defendants opened a Hard Rock Cafe in Heidelberg, Germany, in the early 1970ies, inspired by the claimant's famous and established Hard Rock Café, which had opened in London in 1971. The Heidelberg cafe copied the Hard Rock Cafe logo and subsequently also started selling merchandise under the Hard Rock Cafe logo. The claimants were not impressed and - eventually, after14 years had passed - took the matter to court.
Before the Hard Rock Café decision, it was the BGH's established case law that wherever a conflict was covered by trade mark laws, unfair competition law was not (also) applicable in parallel. The BGH has now expressly changed its opinion and allows a concurrent application of both laws. Notably, the BGH also took the view that in cases of deception concerning the origin of goods/services, the concept of acquiescence should apply to unfair competition claims, just as it does to trade mark claims. Here the court reasoned that it would make little sense to bar a trade mark owner from pursuing an infringement claim in cases of acquiescence, but not bar the competitors of a (potential) infringer.