Flip-flop is now the common term for toe thong sandals. Consequently, the corresponding trademark must be deleted according to a decision by the OLG Zweibrücken (Case No.: 4 U 63/21).
In the summer, they are taken out of the closet again – the light so-called toe strap sandals made of plastic or natural rubber. They are available in all colors and patterns, for women, men, and children. Instead of the rather stiff designation toe strap sandal or toe thong sandal, flip-flops have now become the common term for these sandals. This has consequences for the registered trademark Flip-flop, which must be deleted according to the decision of the OLG Zweibrücken from March 25, 2022, explains the commercial law firm MTR Legal.
The plaintiffs in the underlying case manufacture and sell similar sandals in the EU. They sought consent from the owner of the German word trademark ‘Flip-flop’ for its deletion. They argued that the trademark had developed into a descriptive term for goods and should therefore be deleted in accordance with § 49 para. 2 no. 1 of the Trademark Act. For other goods protected by the trademark, it was eligible for cancellation due to non-use.
As in the first instance, the lawsuit was successful before the OLG Zweibrücken. The trademark was eligible for cancellation with regard to all goods for which it is registered, due to decay according to § 49 of the Trademark Act, the OLG stated.
For the ‘footwear’ category, a survey among retailers 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 attributed to the behavior or inactivity of the trademark owner. The conditions for the decay of the trademark according to § 49 para. 2 no. 1 of the Trademark Act were thus fulfilled. Only a small part of consumers associated the sign ‘Flip-flop’ with products of a specific company.
The OLG Zweibrücken confirmed the first-instance judgment and rejected the appeal.
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