“NOT YOUR BUSINESS” – BPatG rejects slogan as non‑distinctive for marketing services

The German Federal Patent Court (BPatG) has rejected the word mark “NOT YOUR BUSINESS” for a broad range of marketing, printing and IT services for lack of distinctiveness under Section 8(2) No. 1 German Trade Mark Act (MarkenG). The court classifies the phrase as a purely promotional statement that will not be perceived as an indication of commercial origin in the relevant service context.

Background of the case: Slogan for advertising, printing and IT services

The sign “NOT YOUR BUSINESS” was applied for as a word mark for various services in Classes 35, 40 and 42, including in particular:

• Advertising, marketing and sales promotion services
• Agency services, layout design for advertising purposes
• Contract brokering, procurement services, business management and consulting
• Customised printing on third‑party products for promotional purposes
• Printing, digital photo enhancement, production of advertising material
• Creation, design, programming, maintenance and hosting of websites, including online shops

The German Patent and Trade Mark Office (DPMA) rejected the application on the basis of an absolute ground for refusal under Section 8(2) No. 1 MarkenG, arguing that the sign lacked any distinctive character. According to the DPMA, the phrase “NOT YOUR BUSINESS” would be understood by German consumers as “nicht dein Geschäft / nicht deine Sache / das geht dich nichts an” and merely as a brusque, slogan‑type customer address – not as a badge of origin.

The applicant appealed, arguing that the “harsh” customer address precisely creates originality and triggers a thought process, thus providing at least the minimum degree of distinctiveness. In addition, the applicant referred to BGH “for you” and “Starsat”, claiming that the expression was neither descriptive nor a general advertising statement and that it was ambiguous due to the different meanings of “business” (company, shop, enterprise).

Legal test: Distinctiveness of advertising slogans

The BPatG first reiterates the general principles of distinctiveness under Section 8(2) No. 1 MarkenG, in line with CJEU and BGH case law. A sign is distinctive if the relevant public perceives it as an indication that the goods or services originate from a particular undertaking, thus distinguishing them from those of other undertakings. Only the absence of any distinctiveness constitutes an absolute ground for refusal; a generous standard applies, so that even a low degree of distinctiveness is sufficient.

For advertising slogans, the court emphasises:

• No stricter test applies than for other word marks.
• Short slogans are non‑distinctive where they consist of descriptive indications or general advertising laudatory statements.
• Slogans are often perceived primarily as advertising, not as trade marks; the decisive question is whether the slogan is understood exclusively as a promotional message.

In other words: a slogan that merely describes the content, purpose or quality of the services – or that is a typical, generic form of advertising – will usually be refused.

Why “NOT YOUR BUSINESS” is purely promotional in this context

The court holds that “NOT YOUR BUSINESS” is understood by German consumers as “(das ist) nicht dein/ihr Geschäft / nicht deine/ihre Sache / nicht deine/ihre Angelegenheit”. Even consumers with only basic English knowledge will grasp this meaning without any difficulty.

Crucially, in the specific context of advertising, marketing, sales promotion and related IT services, this phrase has a clear and service‑specific advertising message:

• It tells the customer that marketing, advertising, online presence, content creation and similar activities are “not their business” – i.e. not their area of expertise or responsibility.
• At the same time, it implicitly suggests that these tasks should be entrusted to professional service providers.

The BPatG relies on prior market examples where German phrases such as “Marketing ist nicht Ihre Sache? Meine ist es.” or “Webseiten erstellen ist nicht dein Ding?” are used to promote marketing and design services. In this language environment, “NOT YOUR BUSINESS” is just the English equivalent of “nicht dein Ding / nicht deine Sache” and will be understood as a typical, catchy promotional line.

The court therefore concludes that the sign expresses a directly understandable, purely promotional factual statement about the services, without any indication of commercial origin. It thus lacks any distinctiveness within the meaning of Section 8(2) No. 1 MarkenG.

Provocative or “rude” slogans are not automatically distinctive

An interesting aspect of the decision is the court’s approach to the allegedly “rude” tone of the slogan. The applicant argued that the brusque address creates a memorable, original effect and therefore distinctiveness.

The BPatG rejects this:

• Today’s advertising often uses provocative, unfriendly or even sexually suggestive slogans; this alone does not prevent such slogans from being understood purely as advertising.
• Even crude or “bad taste” slogans can still be seen only as promotional statements, not as trade marks.

In the specific case, the court does not even view “NOT YOUR BUSINESS” as an unfriendly rejection (“it’s none of your business”) in the service context. Depending on tone and context, the phrase can be neutral or even polite, merely indicating that something is not the addressee’s responsibility. Thus, the supposed “edginess” does not create the required trade mark function.

For practitioners, the message is clear: the mere use of a provocative or cheeky tone does not transform a standard advertising message into a distinctive sign.

No help from “for you” and “Starsat”: Ambiguity must be concrete and relevant

The applicant relied on the BGH decisions “for you” and “Starsat” to support the protectability of the slogan. The BPatG, however, distinguishes these cases:

• In “for you”, the BGH did not find evidence that the phrase was perceived exclusively as a call to purchase; the courts could not establish a purely promotional understanding, so a (very) low degree of distinctiveness remained.

• In “Starsat”, the designation could not be clearly attributed a descriptive meaning for the goods concerned; any descriptive interpretation remained too vague.

By contrast, the meaning of “NOT YOUR BUSINESS” in the field of advertising, marketing, sales promotion and online services is clear and immediately recognisable: it is a typical promotional indication that these activities are “not the customer’s business” and should be outsourced to experts. The fact that “business” can also mean “company” or “enterprise” does not change this assessment, because the absolute grounds must always be examined in relation to the specific goods and services claimed.

Procedural issues: No hearing, no reimbursement of the appeal fee

Finally, the decision addresses several procedural objections. The applicant criticised, inter alia, that:

• The DPMA did not sufficiently address the individual services.
• The decision did not deal with the BGH case “for you”.
• A requested hearing was not held and the lack of expediency was not explained.

The BPatG acknowledges that the DPMA did not give reasons for refusing the hearing, which constitutes a deficiency in the reasoning. However:

• A hearing at the DPMA level is only required if the office considers it expedient; there is no absolute right to an oral hearing.
• The reasoning defect was cured during the appeal proceedings, as the applicant was able to fully present its arguments.
• The defect was not causal for the decision to file an appeal.

As a result, the court sees no “unfairness” within the meaning of Section 71(3) MarkenG and rejects the request for reimbursement of the appeal fee. The refusal of protection for “NOT YOUR BUSINESS” therefore stands, both on the merits and procedurally