The applicant for the marks Hilger and Fahneneid is a manufacturer of alternative scents, cheaper counterparts of quality perfumes made by well-known brands.
Perfume bottles of alternative scents and their packaging are usually very similar to those in which the famous brands are offered. However, the manufacturers of alternative scents do not file trademark applications for word-figurative marks or industrial designs, but resort to the simple tactic of applying for registration of only word marks.
Both the Patent Office and District Administrative Court make a comparative analysis of marks without reference to the facts of how a trademark is used in reality. This means that the way in which a trademark is affixed to the applicant’s products is irrelevant to the outcome of a dispute in administrative proceedings.
Therefore, even though final products offered by an alternative scent manufacturer are nearly identical to the famous brand products, the similarity between the trademarks used for the marking of those products will not be confirmed by the court, and a trademark of the alternative scent manufacturer will remain valid.