copyright trademark germany advertisements
Am I allowed to use the name of a railway system in advertising?
<p>In Germany, there is the famous <a href="https://en.wikipedia.org/wiki/Intercity_Express" rel="nofollow noreferrer">ICE</a> (Intercity Express) train that everybody knows and loves.</p>
<p>If I run ads in Germany, am I allowed to use this term in messages like</p>
<p><em>Our software XYZ is the ICE of business process automation</em></p>
<p>?</p>
<p>For example, is it legal from a copyright perspective? Is the abbreviation ICE copyrighted? Does it constitute a brand name?</p>

<p>Names and other short phrases, such as &quot;Intercity Express&quot; are not normally protected by copyright at all. Even less are acronyms such as &quot;ICE&quot;.</p>
<p>&quot;Intercity Express&quot; AND &quot;ICE&quot; might be trademarks under German law. When &quot;brand names&quot; are protected, it is as trademarks.</p>
<p>According to <a href="https://www.dpma.de/english/trade_marks/trade_mark_protection/index.html" rel="nofollow noreferrer">this official page</a> from the DPMA (the German government agency that deals with trademarks):</p>
<blockquote>
<p>Trade mark protection arises from registration of a trade mark applied for in the Register of DPMA. Trade mark protection may also arise from the level of recognition acquired due to intensive use of a sign in trade or by its general reputation. ...</p>
<p>...</p>
<p>Upon registration of the trade mark, its proprietor acquires the exclusive right to use the trade mark for the protected goods and services and deal with the trade mark.</p>
</blockquote>
<p>From this and other statements on that site, it would seem that Germany does not protect unregistered trademarks in the way that US law does. Thus one could search and find out if  &quot;Intercity Express&quot; is in fact registered. If it is not, it is probably not legally protected.</p>
<p><a href="https://www.dpma.de/english/trade_marks/classification/index.html" rel="nofollow noreferrer">Another page</a> of the same site says:</p>
<blockquote>
<p>Every trade mark is registered for certain goods and/or services. This determines the scope of protection. The goods and services, in turn, are categorised according to an international harmonised system, the Nice Classification of goods and services, which is divided into 45 classes. ...</p>
</blockquote>
<p>This follows the general rule for trademarks that they only are protected in relation to the kinds of goods or services that they have been used for. Thus while  &quot;Intercity Express&quot; might be protected as the name of a train or transportation service, It might well not be protected in connection with business automation.</p>
<p>Accordin to the <a href="https://www3.wipo.int/branddb/en/showData.jsp?ID=MAD.0705937" rel="nofollow noreferrer">'trademark registration</a> (thanks user  UweD ) &quot;ICE&quot;
is registered as a trademark by Deutsche Bahn AG for the categories of:</p>
<blockquote>
<ul>
<li>Rail vehicles including passenger carriages and driving units, parts of rail vehicles, namely undercarriages, upper works, motors, brakes, electronic and pneumatic final control elements and regulators.</li>
<li>Transport of persons and goods by rail vehicles, services relating to the operation of rail vehicle systems, namely porter services, left-luggage services, timetable information service and traffic reports, also by means of electronic facilities, seat reservation; organization and arrangements for rail travel including travelling companions; hiring out of rail vehicles.</li>
<li>Accommodation and boarding of guests in hotels and restaurants; computer programming.</li>
</ul>
</blockquote>
<p>Most of these categories do not seem related to the description in the question, except perhaps &quot;computer programming&quot;.</p>
<p>Trademarks may be used to refer to the items that they represent, as long as it is clear that no sponsorship, endorsement, or approval is claimed, and that the goods or services do not come from the same source as the trademarked product or service. A clear disclaimer can avoid such confusion. This is called <em>nominative use</em>, that is, the use of a trademark as the name of a thing. Nominative use is not trademark infringement, and does not require permission from the trademark holder.</p>
<p>A phrase such as:</p>
<blockquote>
<p>Our software XYZ is the ICE of business process automation</p>
</blockquote>
<p>would seem to be a case of <em>nominative use</em>.</p>
<p>However, it might well be a good idea to consult a lawyer with specific knowledge of the trademark law of Germany. Trademark protection is always specific to a given country, and what is protected and how may well be different in different countries for the same mark.</p>
