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Opel toy car doesn't „necessarily” breach trademark

Europe's highest court said that a toymaker may have the right to use the „flash” logo owned by General Motors Corp.'s Opel unit on miniature replicas of cars such as the Astra coupe.

The European Court of Justice in Luxembourg said yesterday that the toymaker's use of the logo, a horizontal lightening bolt over a circle, didn't „necessarily” violate trademark law unless it caused confusion with Opel's own line of toy cars. Opel brought the case after it discovered in 2004 that Autec AG was selling a remote-controlled version of Opel Astra V8 Coupe in Germany.
Opel, Germany's third-largest carmaker by sales after Volkswagen AG and DaimlerChrysler AG, has had the rights to the logo on toys in the country since 1990. The court, in an advisory ruling to a German court, said there is only a violation of Opel's intellectual property rights if the „average consumer of toys in Germany” is confused by the use of the logo. The Court of Justice sent the case back to the national court for a final ruling.

Opel said yesterday's decision supported its position. „The Opel trademark represents the qualities of the cars that Opel has built since 1899,” Andreas Kroemer, the company's spokesman, said by telephone yesterday. These qualities must also be reflected in model cars, some of which Opel distributes. „We pay close attention when licensing the production of these models that they meet our expectations for quality,” said Kroemer.
Autec didn't have a license, he said. Creating miniature replicas of cars, ships and trains has been normal practice since 1898, an adviser to the court said in March. The automotive industry only recently recognized the economic potential of models, one of the reasons that Opel decided 17 years ago to get the rights to its logo for toys.
Autec should be barred from making the replicas using the logo and that all infringing models still on the market should be destroyed, Opel argued. An advocate general at the court in an interim opinion said the use of the logo by other toymakers would only breach Opel's trademark rights if consumers associated it with Opel's own model cars, and not with Opel's actual vehicles. (Bloomberg)