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Quoting from a German wikipedia article about "Malen nach Zahlen" (or also called "painting by numbers"):

Malen nach Zahlen ist eine Wortmarke der Ravensburger AG und des Vertriebs Mammut sowie der amerikanischen Dimensions-crafts (PaintWorks Paint-by-number), die mittlerweile auch in Deutschland erhältlich sind. Ein weiterer Anbieter von Malen-nach-Zahlen-Motiven ist die Firma Schipper Arts & Crafts GmbH aus Nürnberg. Die Technik wurde von Palmer’s Paint Company erfunden.

But when researching popular competitors, there are a lot of pages offering or selling "Malen nach Zahlen". I have issues with understanding the protection of "Malen nach Zahlen":

  • I can't find any Wortmarke - just one with an image. "Wortbildmarke" in german.
  • How can such a term be protected? It describes a way of designing / drawing as a verb.

Either way, all in all my question boils down to: Are you - by this Wortmarke - not allowed to create, publish and market an image with boxes that need to be filled out with specific colors, naming that "Malen nach Zahlen"?

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    The word mark, if it exists, would prevent others from using the name "Malen nach Zahlen." You could make an identical product with a different name. But I suspect that your research is correct, since Wikipedia authors are often mistaken, and that the protected mark includes an image as an integral component (along with the additional text "jeder kann malen"). In this case, the words "Malen nach Zahlen" would not be protected when used without the image.
    – phoog
    Mar 15 at 1:37
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    @phoog There are a lot of "Wort-/Bildmarke" in the DPMAregister. But most of them include an appendix - like the one I linked earlier: "Malen nach Zahlen JEDER KANN MALEN". My questions basically is: Can someone make a website and offer "Malen nach Zahlen" (paid or free)? Or is it protected? I've never associated and would have guessed that "Malen nach Zahlen" could and is protected as-is. Mar 15 at 9:23
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    DV: >"I'd need a definite answer whether "Malen nach Zahlen" is comercially protected in the EU (or Germany)." - This steps from "this is an example of a strange situation" to "I want legal advice", which is not allowed on Law.SE
    – Trish
    Mar 17 at 18:23
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    @Trish I don't. I'm just curious whether I understood the legal topic behind that and whether such a "normal" term can be actually protected. Mar 18 at 16:49
  • + this thread will most likely end up as a good source for a Wikipedia edit. As I highly doubt the information in the Wikipedia. That being said, if I needed legal advice, I'd go to a lawyer :) Mar 18 at 16:49

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[…] I have issues with understanding the protection of "Malen nach Zahlen":

A brand can become protected simply by virtue of using the brand, § 4 No. 2 MarkenG, if and as far as the brand has reached the status of being a distinctive brand within a domain of commerce. It is not necessary to officially register a brand, hence you will not find all brands in the national registry.

  • How can such a term be protected? It describes a way of designing / drawing as a verb.

§ 3 (1) MarkenG reads:

Als Marke können alle Zeichen […] geschützt werden, die geeignet sind, Waren oder Dienstleistungen eines Unternehmens von denjenigen anderer Unternehmen zu unterscheiden.

To paraphrase: Any brand is eligible for legal protection, if it is suitable to distinguish goods or services of one company from goods or services of other companies (in German legalese dubbed Unterscheidungskraft).

Conversely, this means there are brands that are not legally protected, but still constitute brands. You may have misunderstood the Wikipedia article: The claim “is a brand of Ravensburger” does not make any assertion as to whether it is legally protected.

[…] Are you - by this Wortmarke - not allowed to create, publish and market an image with boxes that need to be filled out with specific colors, naming that "Malen nach Zahlen"?

It depends. Given that the brand is not officially registered, it still may be legally protected brand: Maybe German (toy/arts supply store) retailers understand Malen nach Zahlen (MNZ) as a product by Ravensburger (so § 4 No. 2 MarkenG). If so, you cannot market an MNZ product and name it like that in the (German) retail sector. In the end the burden of proof is on the party claiming brand ownership.

[…] My questions basically is: Can someone make a website and offer "Malen nach Zahlen" (paid or free)? Or is it protected? […]

It depends. As far as I know Ravensburger does not use the brand MNZ to offer paint‑by‑number templates for download so I say it’s not an issue.

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    Why would it matter whether Ravensburger offers their product digitally? I would assume if for example a board game was named and recognized as (lets say) "Da Game!", I would not be allowed to publish this game as an app using this brand name. I can publish an app doing the same thing, but I would not be allowed to name it "Da Game!". Is it different in this case?
    – nvoigt
    Mar 20 at 15:15
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    @nvoigt Sorry, I was still thinking about a § 4 No. 2 established brand so the domain of (potential) recipients matters. If it’s a § 4 No. 1 registered brand, it does indeed not matter. Mar 20 at 16:21
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    So in the German retail sector, a Malen nach Zahlen product is legally not allowed? Thus competitors that currently exist - i.e. walking in a toy store right now, there are a couple of competitor brands offering a "Malen nach Zahlen" - do not operate within legal boundaries? Mar 21 at 16:22
  • @J.M.Arnold I wrote it may be a legally protected brand. There is the option that a brand becomes legally protected merely by using it as a brand. Whether or not this is the case today leaves the scope of this site (law.SE help center) as this is not a purely educational question anymore. Mar 21 at 19:13
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    @J.M.Arnold Malen nach Zahlen (by itself) is not a registered word mark. You yourself have checked the directory. You can obtain legal protection for a brand by registration but that is not the only venue. During registration there are checks. An unregistered brand, however, does not get checked by nobody; only if a judge needs to decide in a trial whether the purported brand owner indeed has a brand enjoying legal protection the question arises. Until then Wo kein Kläger, da kein Richter. nullo actore, nullus iudex. Mar 22 at 13:37

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