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SKW Schwarz has successfully represented Piper Verlag GmbH in a trademark dispute against an action brought by Südwestrundfunk (SWR). The proceedings concerned an alleged likelihood of confusion asserted by SWR regarding the title "Nie wieder keine Ahnung". On July 4, 2024, the 2nd Civil Senate of the Higher Regional Court of Stuttgart amended a ruling by the Regional Court of Stuttgart and dismissed SWR's claim.
SWR had applied for title protection for the title "Nie wieder keine Ahnung" in 2009 and subsequently broadcast four episodes of a first series of reports entitled "Nie wieder keine Ahnung" on the subject of painting as part of the program "Planet Schule". A second season followed in 2011 with three episodes on the subject of architecture. The program is accompanied by a web special and other materials. The contributions are available in the media library.
In 2021, Piper Verlag published a non-fiction book entitled "Nie wieder keine Ahnung" with basic knowledge on the topics of politics, business and culture. The authors of the book are the presenters of the children's news program "logo!". The book is accompanied by an e-book and audio book of the same name.
SWR initially issued a warning to Piper Verlag for infringement of its title protection rights. An application for an interim injunction was rejected by the Regional Court and the Higher Regional Court of Frankfurt am Main. However, the Regional Court of Stuttgart initially upheld the action in the main proceedings.
On appeal, the Higher Regional Court of Stuttgart followed Piper Verlag, represented by SKW Schwarz, and denied a claim for injunctive relief. The Higher Regional Court confirmed that the term "Nie wieder keine Ahnung" is a work title within the meaning of Section 5 (1) of the German Trademark Act, even for a TV report, which has sufficient distinctiveness and for which title protection exists in principle. However, there was no direct likelihood of confusion because the TV series and the book title were not the same category of work. It could be ruled out that the public would consider the defendant's book "Nie wieder keine Ahnung" to be a sequel to the plaintiff's TV series of the same name.
According to the Higher Regional Court, there is also no indirect likelihood of confusion. A mere association is not sufficient for the assumption of a likelihood of confusion in the context of title protection. Rather, the conceptual connection must actually lead to a likelihood of confusion, which in turn requires a sufficient reputation of the title with which the public associates a commercial idea of origin. However, such sufficient familiarity of the title had not been demonstrated.
"Fortunately, the decision of the Higher Regional Court of Stuttgart once again clearly demonstrates the basic principles of title protection. The mere use of an identical title does not lead to its inadmissibility. Rather, in the case of different types of work, extraordinary circumstances must be present in order to justify a likelihood of confusion. The OLG decision is in line with current BGH case law and is also understandable and sensible in terms of legal policy and practice in order to avoid excessive title protection," says Dr. Konstantin Wegner, partner at SKW Schwarz, who represented Piper Verlag.
An appeal against the decision can still be lodged with the Federal Supreme Court.
OLG Stuttgart, Ref. 2 U 51/23
Previous instance Stuttgart Regional Court, Ref. 17 O 122/22
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