Germany

Non-traditional trademarks. These can be registered in Germany if they comply with the general rules for trademark protection, especially sections 3 and 8 of the German Trademark Act (MarkenG), which state that any sign must be distinctive and must not be kept free for third parties.

Colour marks. Colour marks can be granted protection if they have a distinctive character in relation to the claimed goods and services. They are usually registered by achieving a secondary meaning (Verkehrsgeltung). When applying for a single colour mark, an internationally recognised identification code must be indicated (ECJ C-104/01). However, colour mark registration often must come second to the public interest of keeping a colour free for use due to the limited number of colours actually available. As a result, colour marks play a minor role in the fashion industry with companies rarely seeking to register them. This may change with the arrival of the “quiet luxury” trend which concentrates more on the classic and iconic aspects of the products rather than gimmicks or the use of logos.

Shape marks. Problems arise if a shape mark is based solely on the shape of the product. In such cases, the shape can only be protected under trademark law if consumers perceive the product-dependent shape mark to be an indication of origin, which means it should distinguish the goods from others in the industry (ECJ, C-136/02). Trademark protection cannot, however, be granted for anything that goes beyond the origin of the product, for example, the purely aesthetic features of the product.

Personal names. In the fashion industry, the use of names as trademarks is quite popular. Basically, they are distinctive and registrable. The use of identical names as pure model designations in addition to any other trademark could lead to trademark infringement if the model designation could be considered to be a second trademark and not just a descriptive designation (cf. Federal Court, I ZR 195/17 “SAM”).

Pattern marks. Pattern marks are registrable provided they are distinctive. Examples of patterns accepted by the German Patent and Trademark Office include international registration 580 546, in relation to a Christian Dior pattern, and German trademark 2 091 389, in relation to a Louis Vuitton Malletier pattern.

Position marks. In the fashion industry position marks are quite popular, such as the famous red sole of Christian Louboutin shoes. Their registration, however, requires that the position is not usual for the specific product category so that it may be considered a sign of the product’s origin. A recent example of a registered mark is Veja Fair Trade S.A.R.L. – DE 30 2022 106 687, relating to the V-shape pattern on the side of Veja sneakers.

Certification marks. Certification marks indicate that the goods or services bearing the mark have certain characteristics certified by an independent body. Therefore, only a person who is not the producer of the goods may be the proprietor of a certification mark. The certified product characteristics, conditions of use, as well as the testing and monitoring procedures must be defined in a statute. The German Patent and Trademark Office allow the certification character to be taken from the trademark itself, although this is not reflected in the corresponding EU legislation (Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trademarks).

To date just a few certification marks have been registered in Germany, for example, the logo of Gruener Knopf (No. 30 2019 111 304).

The German design register mainly shows designs for shoes, bags, single pieces of clothing or patterns. 3D forms are often not registerable as trademarks and do not meet the requirements for copyright protection. For such shapes, design protection is the right tool to use. However, design protection requires novelty, which means that registration needs to be requested no later than 12 months after the first disclosure (section 6, German Design Act). In addition, a design needs individual character to differ from pre-existing designs on the market. As designs are not examined before registration, the German register contains quite a number of designs that may not qualify for design protection because they lack novelty.

If a design is not intended to last for more than two or three seasons, protection as an unregistered EU design may be sufficient (Article 11, European Union Design Regulation). This requires detailed documentation of the first publication and is especially attractive for seasonal fashion products, or Modeneuheit (New Fashion).

Registered design protection lasts for a maximum of 25 years and must be renewed every five years. Unregistered designs are protected for three years from first publication.

The threshold when seeking copyright protection for fashion items under section 2 of the German Copyright Act (UrhG) is still quite high because any piece of clothing or bag must possess the required level of originality (which must not be indicated by the product’s purpose or use). German courts are reluctant to accept that fashion pieces are sufficiently original and instead consider whether they are protected as unregistered designs or under unfair competition law.

Under section 2 of the UrhG, protected works in the artistic domain include, in particular, artistic works such as applied art and drafts of such works, photographic works such as works produced by processes similar to photography, and illustrations of a scientific or technical nature, such as drawings, plans, maps, sketches, tables and three-dimensional representations. This can include the protection of garments, drawings or patterns.

In February 2025, the German Federal Court (BGH) dealt with copyright protection of everyday objects — the Birkenstock sandals. It argued that the design of the sandals is only based on technical requirement and formal design elements which do not lead to a creative design that could be granted copyright protection (case reference I ZR 16/24, I ZR 17/24 and I ZR 18/24). Even if the footbed and the fastening of the straps could be considered as design elements, the creative scope of the sandals was not beyond common everyday design.

Copyright expires 70 years after the author’s/creator’s death (section 64, UrhG).

Patents. Patent protection in the fashion industry can be relevant for technical features such as zips, knitting processes or adhesive or insulating solutions (especially for sports clothing). Considering the popularity of intelligent fashion containing heaters or pulse meters, demand for patents may increase in this area. Examples of patents in the fashion industry are Fitbit Inc’s patent for incorporating the technology of “Backfilling of geolocation-based exercise routes” into their smart watches (German Patent 60 2017 021 954) and Osram GmbH's patent for textile cable fabric (German Patent 10 2020 201 871).

Unfair competition law. If no exclusive IPR is enforceable, the German and EU regulations on unfair competition may provide protection for pieces that enjoy “competitive originality” if an avoidable deception regarding origin is created by the imitation.

Licence agreements

As in other jurisdictions, licence agreements allow rights holders (mainly trademark owners in the fashion industry) to grant third parties the right to manufacture and distribute products within a specifically agreed range and geographically defined area. In most cases, the right holder has the obligation to maintain the right and to defend it against infringement. In the fashion industry, licences are often granted for the manufacture of accessories or for co-branding campaigns. In Germany, there are no formal requirements for licence agreements but documenting licence conditions in writing is highly recommended for evidence purposes in the event of legal disputes. German law does not require any registration of a trademark licence agreements but does provide for the option of registration (section 30(6), German Trademark Act).

Non-disclosure agreements (NDAs)

In 2014/2015, Nike sued three former designers for violation of trade secrets after they moved to Adidas. Because of this, the German fashion industry is aware of the importance of NDAs or corresponding regulations in employment contracts (Briske/Schmoll/Kuck in Schmoll/Boeminghaus, ModeR, F paragraph 168). The German Gesetz zum Schutz von Geschäftsgeheimnissen (GeschGehG) implemented Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, which provides guidelines on the definition of a trade secret and on how it can be protected.

Subcontract agreements with suppliers/in-house manufacturing

Subcontract agreements are mainly required when a third-party manufacturer produces and labels clothes or accessories under the control of the core licensee of a rights holder. Depending on the specific relationship between the licensee and third-party manufacturer, there may be no clear need for a sub-licence agreement because in some cases the rights may already be exhausted.

Agency agreement

In Germany, there are no specific legal provisions regarding agency agreements. Therefore, German civil law applies, in particular, sections 84 to 92c of the German Commercial Code (Handelsgesetzbuch). Section 89b of the German Commercial Code states that a commercial agent will receive a reasonable indemnity for the relevant business that has been brought to the principal after the termination of the contract, restricted to one year’s commission. The advantages deriving from business relations established by the agent prior to termination of the agreement as well as equity must be taken into account when calculating the indemnity. The claim must be raised within one year after termination of the agreement (section 89(4), German Commercial Code). The agent’s right to indemnity is compulsory and cannot be contractually excluded or reduced.

Selective distribution online in high-end fashion and trademark protection

Due to the harmonisation of the law of the EU Member States, EU regulation 330/2010 regarding selective distribution systems and the corresponding case law of the ECJ apply in Germany. Selective distribution is a tool used by the high-end fashion industry, mainly to avoid distribution of their high-quality products through regular e-commerce platforms and to safeguard distribution channels that are appropriate for high-quality fashion.

Co-branding and co-marketing

Co-branding means that two different brands co-operate and work together to create a temporary collection. The goal of such co-branding campaigns is to establish broader prominence of products in their existing field as well as through different distribution channels. Examples of this are the current co-branding line for kids clothing of German fashion label CLOSED and the Spanish brand ZARA, as well as the long-lasting collaboration between Stella McCartney and Adidas (www.adidas.de/adidas_by_stella_mccartney).

To safeguard each party’s interests and rights, any co-branding or co-marketing agreement should clarify the aspects of brand recognition, positioning, sharing of revenues and the duration of the campaign, and of course the question of ownership of potential newly developed trademarks, designs or copyrights.

Franchising and alternative sales model agreements

Franchising, like most other alternative sales models, is not regulated by specific law in Germany, therefore, general German civil law applies.

In addition to franchising, modern and popular forms of vertical distribution are shop-in-shop concepts, which large department stores, in particular, offer to brands. Often, the operator of the department store acts as an authorised dealer paying fees for the use of the trademark and the marketing concept of the brand. As there is no legal definition of such concepts, contracts can be freely negotiated to regulate issues regarding employees, training etc.

Pop-up stores have become popular in Germany and function primarily as a marketing tool, with a temporary rental contract forming the legal basis for the arrangement when the store is opened by the brand itself.

Consignment store contracts are commonly used, particularly in the shoe industry.

Employing fashion models

When working with fashion models, specific awareness of their personal rights is required. To enable the fashion company to use any photograph or video, the model must grant a release of the imagery specifying the intended purposes. It is highly recommended, especially for online use, to make sure that the rights to use the pictures/videos include any online features and are not time limited. Otherwise, the fashion company would have to delete pictures from social media after a certain period of time, which is often almost impossible.

Social media, influencers and brand ambassadors/celebrities

In the case of advertising by influencers or other brand ambassadors, commercial and editorial content must be clearly separated. If commercial content is not properly labelled as such, it may be considered surreptitious advertising under section 5a(4) of the Act against Unfair Competition (UWG). This is also essential for advertising companies, which can be held jointly liable with the influencer. In addition, advertisements must not be misleading, untrue or grossly exaggerated.

Advertising standards, relevant authorities and advertising practice

The German self-regulatory system has two advertising standard organisations:

• Deutscher Werberat (German Advertising Standards Council) provides a mechanism for conflict settlement between the public and commercial advertisers. In addition, it draws up voluntary codes of conduct for advertising, particularly in sensitive areas.
• Zentrale zur Bekämpfung unlauteren Wettbewerbs (German association founded to combat unfair competition) is a self-regulatory institution founded in 1912 serving the entire business community with the task of protecting competition in the interest of the general public. It is, therefore, subject only to the competition laws currently in force. Neutrality and independence are the foundations of its activities and of the role its members consider it should fulfil.

When engaging in distance selling and e-commerce, companies are subject to a number of information obligations, which need to be communicated to the consumer in a clear and comprehensible way. Most of the obligations are laid down in the German Civil Code (BGB) and the Introductory Act to the Civil Code (EGBGB).

The following new EU regulations need to be considered in addition to all the existing regulations and laws:

The EU Digital Services Act (DSA) Regulation 2022/2065 has been implemented into the German Digitale-Dienste-Gesetz (DDG). This obliges fashion companies that offer digital services, such as online shops, to establish measures including, for example, the provision of legal notices, the handling of illegal content, and the provision of information to consumers.

The Digital Markets Act (DMA) is an EU regulation (2020/0374) that requires large online platforms (“gatekeepers”) to comply with strict rules to promote fairness and competition in the digital sector, without any direct connection to the fashion industry. The law indirectly affects the fashion industry by setting rules for the use of gatekeeper platforms such as Amazon, Meta (Facebook, Instagram) and Apple (App Store), which serve as sales, marketing, and data collection platforms for fashion companies.

In addition, not only ChatGPT or other providers of AI-based services, but also fashion brands, need to consider the new EU AI Act (2024/1689), which will be implemented (step-by-step) into national law. The key considerations are AI transparency, bias mitigation, and data.

Physical stores can be protected as company designations without name function according to section 5(2) of the German Trademark Act, but this protection requires secondary meaning. Another option is the protection as works of applied arts under section 2(4) of the Copyright Act.

Following a request for preliminary ruling of the German Federal Patent Court, the Third Chamber of the Court decided that the layout of a retail store may be registered as a trademark provided that the sign is capable of distinguishing the services of the applicant from those of other undertakings (ECJ - C-421/13).

Nevertheless, the German Federal Patent Court did not allow the layout of the Apple flagship store to be registered as a trademark.

Independent of the kind of IP right chosen, enforcing the rights for the layout of a store will be difficult because competitors will most probably not reproduce the whole layout but only parts. Another hurdle is the question of whether consumers consider the layout to be a special mark or only recognise the technical functions and aesthetic design.