The German Federal Supreme "Sierpinski-Dreieck" - use of a simple geometric form as a trademark

The issue to be decided was whether the German figurative mark DE 30 2013 060 953, and the German figurative mark DE 30 2012 034 309 are infringed by the selling of certain pullovers. The figurative marks show one big triangle composed of four little triangles and a pattern of such big and little triangles respectively. The figurative marks and the pullover are shown in the decision cited below. On the attacked pullovers, the triangles are reversed upside down, having the peak at their lower end. The Higher Regional Court of Düsseldorf decided that there was a trademark infringement in place. The German Federal Supreme Court has reversed this in its decision “Sierpinski-Dreieck” of November 10, 2016 (I ZR 191/15), and has referred the case back to the Higher Regional Court. In the head note, it reads: “The trade understands the stringing together of a simple geometric form which is not known in the trade as a mark, and which extends like a pattern of clothes over the complete article of clothing usually only as a decorative element, and not as a product distinguishing mark”. In the reasoning, the decision says that as opposed to stitched in labels in the inner side of articles of clothing, the trade does not understand pictures, motifs, symbols or words placed on the front side of pieces of clothing as a hint pointing to the origin of the clothing. Further, the decision is differentiating as to whether or not the goods are all day clothes or luxury products for which a different standard is justified. Regarding the use as a trademark, the decision applies a rather strict standard at the expense of the trademark owner.