When does a "resemblance" become a banned Nazi symbol?

Question

It is in the news that

Adidas has banned football fans from buying German football kits customised with the number 44, after media raised their resemblance to the symbol used by World War Two-era Nazi SS units.

As far as I know, there have not been any court cases or police action for this particular example.

So generally speaking and considering that material in the tradition of a former national socialist organization (e.g. the SS logo) and the production and distribution of such material is prohibited by law, have the courts ruled to establish a bright line to say when such a "resemblance" becomes unlawful in Germany?

Answer 1

That particular example is not, but there have been tons of similar cases, all of which hinge on §86a StGB:

(1) Mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe wird bestraft, wer

1. im Inland Kennzeichen einer der in § 86 Abs. 1 Nr. 1, 2 und 4 oder Absatz 2 bezeichneten Parteien und Vereinigungen verbreitet oder öffentlich, in einer Versammlung oder in einem von ihm verbreiteten Inhalt (§ 11 Abs. 3) verwendet oder

2. einen Inhalt (§ 11 Absatz 3), der ein derartiges Kennzeichen darstellt oder enthält, zur Verbreitung oder Verwendung im Inland oder Ausland in der in Nummer 1 bezeichneten Art und Weise herstellt, vorrätig hält, einführt oder ausführt.

(2) Kennzeichen im Sinne des Absatzes 1 sind namentlich Fahnen, Abzeichen, Uniformstücke, Parolen und Grußformen. Den in Satz 1 genannten Kennzeichen stehen solche gleich, die ihnen zum Verwechseln ähnlich sind.

(3) § 86 Abs. 4 und 5 gilt entsprechend

The relevant part is bolded, and in translation reads:

The marks mentioned in sentence 1 [flags, Badges, uniform pieces, slogans and greetings] are equivalent to those that are confusingly similar.

So any mark that is confusingly or strikingly similar to a mark that belongs to a banned organisation (e.g. NSDAP, SS, SA, KPD) is also banned.

Let me give you some examples. Or rather, let me point to some that were found by the Verfassungschutz. There's a variant of the Hitlergruß, which is called "Kühnen Gruß" and just as illegal. However, skull-and-crossed-bones need to be arranged in a particular fashion and detail to evoke the SS skull-and-crossbones while a generic pirate flag is legal.

Various german courts have discussed that sentence and came to a variant of results, depending on which symbol was supposedly immitated. In general, the SS and Swastika are much easier to get you into hot water than some other symbols. As a result, many distributors of goods do a lot to not try to be fined or brought into connection with Neonazis.

Example of voluntarily changing the logo

Did you know that KISS has a German alternative logo because its S did go too far towards SS? In 1980, thus they made a press release in germany that they took a Germany wide logo with other S, just to yell "WE ARE NOT NAZIS!" from all rooftops. Have a look at the original press release:

It reads in translation:

To put the group "Kiss" somewhere close to Nazi glorification because of their logo (runic script) would never have occurred to us; To attribute such an intention to them is absurd.

The reason why we still firmly convinced the group's management to agree to a change to the logo is solely and simply because of the almost undeniable similarity between the spelling of the "old" Kiss logo and a Nazi symbol, and because it has been interpreted as such from different perspectives despite the completely different context.

Besides the fact that German law prohibits it [to display such symbols], we would like to firmly distance ourselves from the suspicion that we would spread Nazi symbols.

So, let's compare the old and new Logo from this snippet from google, which helpfully includes a direct comparison with the banned SS logo.

It's easy to see the alleged closeness in the press release. A Berlin court in 2016 found that the original logo is allowable, because KISS as an international mark would be recognizable as for KISS and nobody would think earnestly it was a banned SS rune, especially with the aspect ratios being off. Still, KISS uses the newer font style.

Companies hate being associated even a little

A particular example of the brand successfully fighting back against being associated with neonazis is Lonsdale of London. They were never banned or had legal trouble. However, they became popular with neonazis in the 1980s for the middle part of their name, which with a half-closed jacket resulted in NSDA. To get rid of the connotation... they kicked any reseller that had any connection to the right scene, sponsored anti-nazi music, and jumped the rainbow bandwagon in the 1990s.

Adidas as a german brand is particularly carefully to try and not get associated with nazis, so as a german I understand their reluctance to even get anywhere close to the SS logo, even if it is somewhat on the fringes.