Not only in the Bundesliga, but also in court, the national player Bastian Schweinsteiger was successful twice.
1:0 - Nicknames enjoy name protection
Meat retailer may no longer use trademark "Schweini" - Registration of trademark "Schweini" inadmissible.
According to a decision of the Munich Regional Court I, a meat trader must refrain from using the designation "Schweini" in the course of trade without consent. He must also have the trademark registered by him cancelled. The court thus upheld a corresponding complaint by the national football player Bastian Schweinsteiger.
In the first instance, the Regional Court of Munich I ordered a meat wholesaler to refrain from using the label "Schweini" in commercial transactions without consent, following a complaint by the national football player Bastian Schweinsteiger. The wholesaler must also have the trademark "Schweini" registered by him cancelled at the German Patent and Trademark Office. Finally, the court found that Schweinsteiger was entitled to damages because of the unauthorised use of the name. In order to calculate the damages, the meat trader must first provide information on the extent to which he used the "Schweini" labelling and what turnover was achieved with it.
The defendant meat trader had applied for the trade mark "Schweini" at the German Patent and Trade Mark Office in mid-2005, according to him, because this term was used as a catchword-like trivialisation for almost all words containing the word element "pig". He was concerned only with the designation of pork sausages. He had not thought of the footballer. Neither the identity nor the individuality of the footballer could be derived from the term "Schweini". Schweinsteiger had also resisted the nickname at the time and rejected it.
The court did not follow this line of argument. At the time of the application for the trade mark in mid-2005, numerous media had already invented and used the nickname "Schweini" for the footballer in the context of reporting on the 2005 Confederations Cup. Thus, in the opinion of the court, a legally protected individualisable name already existed at that time with regard to the plaintiff. In this respect, nicknames also enjoy the special legal protection of the right to a name.
It is not important whether Schweinsteiger himself actively used the nickname "Schweini". In this respect, the use of the nickname for Bastian Schweinsteiger in public and the assignment of the nickname with regard to the football player Schweinsteiger in the media are also sufficient. This also gives rise to protection of the name of the footballer designated by the nickname.
The court also did not believe that the defendant had only his sausage products in mind when filing the trade mark application, without any reference to the plaintiff. This was particularly because the defendant also applied for the name "Poldi" as a trade mark a short time later and had close personal contacts with FC Bayern.
Schweinsteiger therefore has a right to injunctive relief because of the unauthorised use of the name "Schweini" and can demand the cancellation of the trade mark. Finally, he can also claim damages for the unauthorised use. For this purpose, the defendant must provide him with information and account for the extent of the use of the name "Schweini" as well as disclose the turnover achieved with it.
Judgment of the Munich I Regional Court, Case No. 4 HK 12806/06
Source: Press release of the LG Munich I of 08.03.2007
2:0 - Schweinsteiger does not have to pay lawyer's fee in arrears
The national player was successful before the 34th Civil Chamber of the Munich I Regional Court.
The plaintiff claimed residual compensation from the defendant for legal services in a number of proceedings. The work mainly related to the defense of claims by the defendant's former player advisor/agent and claims against the defendant's legal expenses insurance. The plaintiff demanded outstanding fees in the amount of approximately €28,000.00. The defendant objected that the justified claims had already been settled by the legal expenses insurance. The plaintiff was not entitled to any further claims; in particular, some of the alleged orders were disputed.
The action was dismissed today by the competent civil chamber.
In the end, the chamber was not convinced that the plaintiff was still entitled to claims. In the opinion of the chamber, some of the claims have already been settled by payments from the defendant's legal expenses insurance. In addition, some of the compensation had been settled several times, although it could only have been asserted once. Finally, in the opinion of the Board, the plaintiff was also unable to prove that it had been commissioned at all with regard to some claims, despite the fact that evidence had been taken.
Proceedings of the Munich I Regional Court, Case No. 34 O 21175/06, not legally effective
Source: Press release of the Regional Court Munich I of 03.03.2009
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
