Trademark "ABSOLUT" is not absolutely prohibited

Jun 23, 2021 Benn-Ibler Rechtsanwälte

The marketing of a snow park operator bore great similarities to the vodka brand "Absolut" and this has now led to legal consequences for her.

The defendant used the sign "ABSOLUT PARK" on many different objects in its snow park. In addition, the defendant used the name "ABSOLUT SHOP" for its web shop, through which clothing, other textiles or key rings with the sign "ABSOLUT PARK" could be ordered. At the same time, it operated a Facebook page with the same name, which had 30,000 subscribers. The plaintiff sought to prohibit the defendant from using the sign "ABSOLUT" alone and/or with additions such as "PARK", "SCHOOL" or "SHOP" in the course of trade. Furthermore, the plaintiff filed a request for removal, which was aimed in particular at the destruction of clothing items and the deletion of the domain and Facebook pages.

With regard to the use of the signs on the goods offered, the Supreme Court upheld the Court of Appeal's request for an injunction. There is no doubt that the defendant exploits the high degree of recognition of the plaintiff's trademarks, due to the visually very similar design of the sign "ABSLOLUT", in order to draw attention to its own product. This is, inter alia, because the snow park operator directs its offer mainly at 16 to 25 year olds who consume hard alcoholic beverages at least occasionally and are thus familiar with the trademark "ABSOLUT".

However, the Supreme Court rejected the claim for removal to delete the domain. The injunctive relief granted relates only to the graphic similarity to the trademark. The prohibition of the use of the trademark by the defendant thus necessarily presupposes such a graphic design. Thus, the Supreme Court held that neither the mere holding of a domain nor its use is subject to the prohibition imposed on the defendant to use the term "ABSOLUT" in a graphic design.

OGH 4 Ob 19/21d (20.04.2021)