The ongoing dispute between the Zappa Family Trust and fans of Frank Zappa who organize the annual Zappanale festival in Germany continues. The dispute is over the use of the iconic frontman’s name and image and the use of the word mark ZAPPA, a registered Community Trade Mark.
The Trust, whilst owning tne mark, had only used the word “Zappa” as part of the “official” Zappa website URL, which was operated from the US. Reversing a decision of the Regional Court of Düsseldorf, the Higher Regional Court of Düsseldorf (20 U 48/09) held that this use did not amount to genuine use of the trade mark (Article 15(1) CTMR). The court nonetheless stressed that use of a mark in a domain name as such may be sufficient for constituting genuine use – just not in this case because the public would consider the use of the word Zappa as a general descriptive reference and would not understand it as a reference to the trade mark owner. According to the latest report in Stern, the Higher Regional Court had also held that the Zappanale music festival could still be held and that the Zappanale organizers were allowed to use the word mark Zappa, run their own Zappanale website and sell Zappanale merchandise, and that no damages were payable to Gail Zappa, Frank’s widow. Finally, the Higher Regional Court ruled that no further appeal in this matter was allowed.
Undeterred, Gail Zappa, took the matter to the German Federal Supreme Court filing an appeal against the Higher Regional Court’s denial of leave to appeal and succeeded meaning round three will now shortly commence!
From the marvelous IPKat http://ipkitten.blogspot.com/