The Cologne Higher Regional Court (judgment of April 29, 2022, Case No.: 6 U 178/21) dismissed an action against our client, Gebr. Faller GmbH, seeking injunctive relief, information, and damages. In its action, Dachser objected to our client's use of the "DACHSER" mark on a model truck and a model of a logistics center. The Cologne Higher Regional Court, in contrast to the decision of the Cologne Regional Court of September 28, 2021 (Case No. 33 O 68/20), did not consider this to be an infringement of a known trademark. In further development of the Opel-Blitz-II ruling of the Federal Court of Justice (ruling of January 14, 2020, Case No.: I ZR 88/08), the Higher Regional Court decided that model making is not limited to the use of the manufacturer's trademarks of original vehicles, but may also use the vehicle operator's trademarks affixed to vehicles as well as trademarks affixed to buildings in order to reproduce reality. This also applies if model buildings feature the characteristic design elements of several actually existing buildings of the trademark owner without being exactly based on a certain building. In none of those cases does the public assume that the model buildings originate from the owner of the depicted trademark or that there are licensing agreements.
The ruling strengthens the field of model making, since the reproduction of reality and the use of trademarks required for this is still possible in accordance with decades of practice without obtaining the consent of the respective trademark owners. Since the appeal has been allowed, the Federal Court of Justice may have the opportunity to develop further its Opel Blitz II case law concerning the permissibility of the use of trademarks in model making.