Trade Marks and Copyright 2026

GERMANY Trends and Developments Contributed by: Thomas Nägele, Steffen Henn, Anke Hofmann and Serpil Dilbaz, SZA Schilling, Zutt & Anschütz

(3) The claims under subsection (1) vest in 1. any competitor which supplies or demands goods or services not only to an insignificant extent and not only occasionally; Decision of the Higher Regional Court of Cologne The Higher Regional Court of Cologne ruled in favour of the appellant and prohibited the respondent from using “Dubai Chocolate” for products neither manu - factured in Dubai nor otherwise connected to Dubai. The court held that “Dubai Handmade Chocolate” constitutes a geographical indication of origin and is not generic. The relevant public (the average con - sumer) perceives the designation not merely as a ref - erence to a recipe but as an indication of geographical origin. The packaging featuring the Dubai skyline, as well as advertising, reinforces the (misleading) impres - sion of origin. The reference “Product of Türkiye” on the back of the packaging was insufficient to dispel that impression. The ruling offers helpful guidance on a contentious issue. It remains to be seen how other higher regional courts will position themselves on this. Copyright – Legislative Developments The AI Act stipulates the necessity of a copyright strategy The training of artificial intelligence systems requires significant quantities of data. However, this data is frequently subject to copyright protection. This spe - cifically applies to general-purpose AI models (GPAI). According to Article 53 (1) lit. c of the AI Act, provid - ers of GPAI shall put in place a policy to comply with Union law on copyright and related rights. On 10 July 2025, a Code of Practice for providers of GPAI models was published. The proposal sets out five measures for implementing the copyright requirements of the AI Act. Providers of GPAI systems who voluntarily adhere to this Code of Practice can demonstrate their compli - ance with the relevant provisions of the AI Act. Never - theless, adherence to the code is not obligatory, and compliance with the AI Act may be demonstrated in alternative ways. OpenAI, Anthropic and Google are, among others, signatories to the Code of Practice.

On 20 February 2025, the BGH addressed the ques - tion of whether the Birkenstock sandal models “Madrid” and “Arizona” qualify for copyright protec - tion as works of applied art. The facts of the case The plaintiff, a subsidiary of the Birkenstock Group, asserted protection under Section 2 Para. 1 No. 4 of the German Copyright Act (UrhG). The defendant mar - keted similar sandals online. The plaintiff considered this to be an infringement of its copyright and initiated legal proceedings for, among other things, injunctive relief, damages, recall and destruction of the prod - ucts. The court of first instance upheld the claim; the court of appeal dismissed it. The relevant provisions of the German Act on Copyright Section 2 – Protected works (1) Protected works in the literary, scientific and artistic domain include, in particular: [...] 4. artistic works, including works of architecture and of applied art and drafts of such works; (2) Only the author’s own intellectual creations consti - tute works within the meaning of this Act. The decision of the BGH The BGH held that the “Madrid” and “Arizona” designs are not protected under the German Act on Copyright. According to the BGH, the designs at issue do not fall within the scope of Section 2 Para. 1 No. 4 of the German Act on Copyright, as they do not con - stitute works of applied art. The BGH reaffirmed that copyright protection for all works requires a certain level of originality, sufficient to distinguish individuality and recognise the intellectual property rights of the creator. For utilitarian objects whose form is largely dictated by function, the scope for artistic freedom is limited. Protection requires a level of creative original - ity that transcends those constraints. In infringement proceedings, the plaintiff bears the burden of proof

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