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Zappa's widow loses trademark case over own name

Website not use in commerce, court rules

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A German music festival dedicated to the work of unconventional rock musician Frank Zappa can continue to use a version of his name without infringing on the trademark rights of his estate, a court has ruled.

Zappa's widow cannot enforce her rights to the Zappa trademark in Germany because she has not used it in commerce there. The court said that use of the name on a US-hosted website was not sufficient to qualify as use in commerce, according to German newspaper reports.

The Zappanale festival celebrates the music of Zappa and sells merchandise featuring, amongst other things, images of his distinctive beard.

Gail Zappa said that the festival and merchandise breached the EU trademark rights held by her. The Higher Regional Court in Dusseldorf, though, disagreed.

It said that the Zappa name had only been used as part of a domain name of a website based in the US but accessible from the EU. That website had not used the trademark to sell or advertise products for the EU market, though, and so was not used in trade.

Trademark owners must use them to protect them. The court said that though the Zappa.com website had been live for years it sold no merchandise into the EU, according to German news site Der Westen.

Newspaper Der Spiegel said that Gail Zappa had claimed damages of €150,000 over the sale of merchandise and CDs related to the festival.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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