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Trademark infringement under German law

The following article briefly outlines how a trademark infringement is determined under German law pursuant to Sec. 14 Trademark Act.

A protected sign has been used by a third party without consent in the course of trade.

The  infringement may happen in one of the following three ways:

Infringement of identity. The used sign is identical to the protected sign and it is being used for goods/ services in identical categories. These are typically cases of “Product Piracy”.

Likelihood of confusion. A similar sign is infringing a protected sign if there is a likelihood of confusion. The likelihood of confusion is determined by three aspects:
- Similarity of signs
- Similarity of related goods/ services
- Distinctiveness of protected sign.

Last but not least exploitation of a popular sign. This is the case where a similar sign is taking unfair advantage of a protected sign’s reputation or damaging this signs reputation. A sign is deemed as popular if it is renowned amongst 20 – 30% of the relevant circles in Germany.

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