Federal Supreme Court denies protection of APP “wetter.de” as a title of work for lack of distinctiveness
4 April 2016
On 28 January 2015, the German Federal Supreme Court (Bundesgerichtshof, BGH) decided that apps for end devices (e.g. smartphones) are generally capable of being protected as work titles, provided that the respective name has a sufficient degree of original or acquired distinctiveness (docket no. I ZR 202/14). In the underlying case, however, the Federal Supreme Court decided that the app “wetter.de” lacked distinctiveness and thus denied the Plaintiff’s claims for cease-and-desist, information and damages.
According to the opinion of the Federal Supreme Court, Internet offers and Apps for mobile devices can be “works” in terms of Section 5 para. 3 German Trade Mark Act (Markengesetz , MarkenG), but the rules for newspapers and journals, whose denominations traditionally almost always consist of generic terms and which therefore require a reduced degree of distinctiveness, do not apply to smartphone apps. Since the sign “wetter.de” is no more than a work-related description of its content, it does not have original distinctiveness, and there is no acquired distinctiveness either because Plaintiff has not Klägerin proved that more than half of the address public considers the designation “wetter.de” as an indication of a specific website with meteorological information.
The entire judgment can be downloaded here (in German language).