Flip-flop is now the common term for thong sandals. Therefore, according to a decision by the OLG Zweibrücken, the corresponding trademark must be deleted (Ref.: 4 U 63/21).
In the summer, they are pulled out of the closet again – the light so-called thong sandals made of plastic or natural rubber. They come in all colors and patterns, for women, men, and children. Instead of the rather stiff designation thong sandal or toe separator sandal, flip-flops have now become the common term for these sandals. This has consequences for the registered word trademark Flip-Flop, which must be deleted according to the decision of the OLG Zweibrücken of March 25, 2022, explains the commercial law firm MTR Rechtsanwälte.
The plaintiffs in the underlying case manufacture similar sandals and sell them in the EU. They requested the consent of the owner of the German word trademark “Flip-Flop” to delete the trademark. They argued that the trademark had developed into a descriptive term and must be deleted according to § 49 paragraph 2 number 1 of the Trademark Act. For other goods protected by the trademark, the mark is subject to cancellation for non-use.
As in the first instance, the complaint was also successful before the OLG Zweibrücken. The trademark is subject to cancellation for all goods for which it is registered due to expiration under § 49 MarkenG, the OLG clearly stated.
For the product group “footwear”, a market survey among dealers and consumers with expert assistance was already conducted in the first instance proceedings. The survey showed that the trademark had lost its distinctiveness and had become a common term for “footwear of the described type”. This was due to the behavior or inactivity of the trademark owner. The conditions for the expiration of the trademark according to § 49 paragraph 2 number 1 MarkenG are thus fulfilled. Only a small portion of consumers associate the sign “Flip-Flop” with products of a specific company.
The OLG Zweibrücken confirmed the first-instance judgment and dismissed the appeal.
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