“DACHSER”
摘要
In view of the long-standing custom of detailed replicas in the construction of model toys and the public’s expectations of them, there is a legitimate interest in replicating a vehicle that occurs in reality and affixing to it not only – as in reality – the mark of the manufacturer of the vehicle in question, but also marks that companies use on such vehicles for the purpose of advertising their services. If a car model faithfully reproduced in detail by a third party bears at the appropriate place the image of a service mark which has a reputation, this only constitutes a use that takes “unfair advantage” of the repute within the meaning of Sec. 14(2), first sentence, No. 3 Trade Mark Act if an attempt is made to use the repute of the mark with a reputation for advertising purposes in another way beyond the mere faithful reproduction. If, when selling such toy cars, any connection with the trade mark results solely from the toy-like scaled-down reproduction of the original, the characteristic of taking unfair advantage of repute is missing (confirmation and continuation of decision of the Federal Supreme Court, 14 January 2010 – I ZR 88/08, GRUR 2010, 726 = WRP 2010, 1039 – Opel-Blitz II). Due to the long-standing custom of detailed replicas of reality in the toy and model sector and corresponding consumer expectations, the toy manufacturer has a legitimate interest in being able to sell not only vehicles but also buildings as models to which trade marks with a reputation are affixed, insofar as they represent a miniature representation of reality. According to the circumstances of the individual case, it may be sufficient if the model adopts the design features that are decisive for the corporate identity, including the logo, so that the public recognises in the model the replica of a building of the trade mark proprietor that typically occurs in reality.