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Warnings under Trademark Law

Trademark owners increasingly control the use of patented trademarks and warn online merchants who make use of protected trademarks without permission. In order to protect oneself from warnings due to trademark infringement, one should know the most frequent reasons for warnings in trademark law, as a warning in trademark law can become very expensive!

What does it mean for online retailers to be reminded of trademark infringements?

A warning letter in trademark law is an extrajudicial means to settle a trademark infringement as quickly as possible. If the trademark owner has found an infringement, they can instruct a lawyer to issue a warning.

Whoever receives a warning in trademark law is accused of having gained a competitive advantage through the use of a protected trademark. The warning serves as a request to refrain from infringing on the trademark law. In addition, the dunned party is requested to submit a cease-and-desist declaration and to pay the costs incurred.

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What are the typical reasons for a warning letter in trademark law?

  • Conscious or unconscious action with plagiarism:
    Anyone selling anything plagiaristic not only violates the manufacturer's trademark rights, but is also liable to prosecution.
    By the way: if fake goods are sold as "real" goods, the seller must deliver the original to the customer.

  • Sale of original branded products without authorisation of the trademark owner:
    Many retailers don’t know that manufacturers are allowed to prescribe the distribution channels. In this way it can be determined in which countries the branded products may be sold and which qualifications (e.g. specialist knowledge) retailers must fulfil.

  • Use of brand names in the offers of no-name accessories or spare parts:
    Advertising for products that are compatible with a branded product is permitted. However, the list of compatible products must be complete and not just any brand. Otherwise a warning letter may be issued.

  • Use of external indicators in the AdWords ad text:
    In principle, the use of another's trademark as a keyword is permissible. However, there are many court decisions to the contrary. However, the foreign brand should not appear in the display itself.

  • Original brand products are changed or worsened:
    The trademark owner does not have to tolerate any changes to his products (example: decorating a Rolex watch with gemstones).

  • Metatag advertising ("white-on-white font") with protected brand names:
    The use of a brand name for the purpose of attracting buyers into the shop via search engines violates trademark rights.

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