The trademark division of the DPMA had previously rejected the request for cancellation: It is true that the word “Obandln” as a Bavarian variant for “Anbandeln” is known to large parts of the public even outside the Bavarian language area. However, this term did not describe the services claimed in class 38, as this class of goods only referred to the technical establishment and realization of communication connections and did not include the contents of the communication process itself.
However, the Federal Patent Court found a close descriptive relationship between the term “Obandln” and the goods or services applied for and, referring to the decisions of the Federal Court of Justice “Pippi Langstrumpf” and “HOT”, affirmed the existence of absolute grounds for refusal within the meaning of Section 8 (2) Nos. 1 – 3 MarkenG.
According to the BPatG, the word element of the contested trademark “Obandln” was a variation of the verb “anbandeln” in written Bavarian dialect. In Bavaria, this word was quite common – and in this respect understandable not only to native Bavarians, but also to “newcomers”.
However, the term “Obandln” is also understood beyond the borders of Bavaria, as it differs from the High German verb “anbandeln” only in the initial vowel and in the final syllable and large parts of the public know that in Bavarian language the syllable “An-” is often rendered as “O”. The public had acquired relevant linguistic knowledge in particular through the annual broadcast of the opening of the Munich Oktoberfest, during which the incumbent mayor traditionally shouts “O’zapft is!” when tapping the first barrel of beer – and also uses the initial syllable “O’ “.
Taking into account the fact that the public is increasingly accustomed to descriptive advertising statements modified in dialect, a significant part of the general public targeted understands “Obandln” in accordance with its lexical meaning as “the initiation of a perhaps not entirely serious love affair”.
With this meaning, the sign “Obandln” had a close descriptive relationship to the services in class 38 which were the subject-matter of the proceedings (which precluded distinctiveness under Paragraph 8(2)(1) of the Markengesetz) because it designated the content and subject-matter of these services, which were concerned precisely with the arrangement of partnership contacts – and thus with “Obandln”.
Currently, “contemporary dating” often takes place online; the telecommunication services at issue in the proceedings merely create the technical prerequisites for this. However, in addition to the purely technical component, these services also included the provision and transmission of information in terms of content. There was such a close connection between the technical service and the provision of content that the public no longer distinguished between technology and content. In this respect, the public would infer from the term “offer” in connection with the services at issue in the proceedings that they were intended to create connections for “establishing a perhaps not entirely serious love affair”.
