Germany 22 Nov 2017

Trademark dispute over BLACK FRIDAY in Germany

Black Friday is a shopping phenomenon that occurs at the end of November every year. During Black Friday, many retail companies carry out sales while also kick-starting the Christmas shopping. In Germany, a trademark dispute has broken out related to Black Friday, concerning a company that has registered BLACK FRIDAY as a trademark and has sued other companies using the term in their marketing. This is according to several German media, including Kluwer Trademark Blog.

Black Friday is the Friday that falls on the day after the American holiday of Thanksgiving, which always occur on the fourth Thursday of November. It is America’s largest shopping and sales day, and it marks the start of Christmas shopping. Although the phenomenon is originally American, the Swedish Trade Federation reports that every third Swedish merchant plans to implement some kind of campaign in connection with Black Friday in 2017.

Today, Black Friday is a relatively global phenomenon and exists, apart from in the United States and Sweden, also in Germany. In Germany a trademark registration for BLACK FRIDAY has been held since 2013 by a Hong Kong company called Super Union Holdings Ltd. In November 2017, Super Union sued several companies in Germany, including Amazon, for use of Black Friday in their marketing.

The responses to the law suits came quickly and were numerous – no less than 12 companies responded to the law suit by trying to get the trademark registration cancelled. The arguments behind the cancellation actions are, among other things, based on the fact that Black Friday has been a known phenomenon in Germany for many years before the trademark application was filed, and that Black Friday should be seen as a social phenomenon rather than a commercial description of origin.

The dispute is infected. A court in Düsseldorf has issued a preliminary injunction which implies, inter alia, that Super Union cannot seek damage claims from black-friday.de (a website listing various Black Friday campaigns) for trademark infringement. Black-friday.de was keen to inform the public about the court’s decision and named Super Union in a press release. This was not appreciated by Super Union, which managed to get a preliminary injunction preventing black-friday.de from informing the public about the decision of the Düsseldorf court.

Nevertheless, the core issue is whether the registration will be cancelled or not. We are following how the story develops with great interest while shopping for our Christmas gifts.

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