Trademarks and Their Functions PDF

4. Different types of trademarks and their functions Main Function Other Functions Not covered Trademarks,Sec 3 TMA Collective marks, Sec 97 et seqq TMA Certification marks, Sec 106a TMA ➢ ➢ ➢ ➢ serves as a commercial indication of origin in relation to the explicitly designated goods/ser...

4. Different types of trademarks and their functions Main Function Other Functions Not covered Trademarks,Sec 3 TMA Collective marks, Sec 97 et seqq TMA Certification marks, Sec 106a TMA ➢ ➢ ➢ ➢ serves as a commercial indication of origin in relation to the explicitly designated goods/services makes the goods or services identified by it distinguishable from those of other companies in terms of their commercial origin for consumers or end users Trademarkable signs whose owner is an association with legal capacity whose members use the mark to distinguish themselves from other companies or associations ➢ Certain characteristics of the goods or services so identified are guaranteed by the certification mark without attributing the goods or services to a particular company Transparency, Neutrality, Testing and monitoring obligations ➢ Quality ➢ Advertising ➢ Communication ➢ Investment protection Applies only to trademarks within the meaning of Sec 14 (2) No. 1, 3 TMA Distinguishing criteria: collective business origin, geographical origin, quality, other special characteristics the presence of one or more of the following characteristics is guaranteed 1.the material 2.the method of manufacture of the goods or the provision of the services 3. the quality, accuracy or other characteristics ➢ Marks consisting exclusively of quality marks as mere indications of quality or condition are not sufficient Geographical origin product identification function, which makes it possible or easier for the consumer to identify a particular product by means of a sign or a particular presentation of the goods e.g.: White lid of the Nutella jar, Drugs/pills that have certain colors, … 11 12 【First column of the table】 trade marks 【Law Reading Session】 Section 3 Signs eligible for protection as trade marks (German Trademark Act) (1) All signs, particularly words including personal names, designs, letters, numerals, sounds, threedimensional designs, the shape of goods or of their packaging as well as other wrapping, including colours and colour combinations, may be protected as trade marks if they are capable of distinguishing the goods or services of one undertaking from those of other undertakings. (2) Signs consisting exclusively of shapes or other characteristics 1. which result from the nature of the goods themselves; 2. which are necessary to obtain a technical result; or 3. which give substantial value to the goods shall not be capable of being protected as trade marks. 【subtitle】 When we consider the scope of Protection here, we can differentiate between the “outer” limitation and the “inner” limitation would be section 3, sub-section one and inner limitation is excluded from Protection would be sub-section 2. 【translate】When we consider the scope of protection, we may distinguish between "external" limitations, which are article 3, paragraph 1, and "internal" limitations, which are excluded from the scope of protection, which are paragraph 2. Back to the table on main features, other features and unmentioned sections (first column of the table, Trademarks Section3) 【subtitle】 [what is the main function of a trademark?] Well it serves as a commercial indication operation in relation to the explicitly designated groups or services and makes the good service identify, identifiable and makes it distinguishable from those other companies, security some their commercial origin. [What is the primary function of a trademark?] The function of a trademark is to operate as a commercial identification of a clearly designated group or service, to make the goods and services recognizable, identifiable, and to distinguish them from other companies, warranties, commercial sources, etc. [How can it distinguish it? ] Well it makes use of all signs in particular words including personal names, designs, letters, numerous sounds and so on. So quite broad scope application here. [How is it distinguished?] All signs, especially words, include names, designs, letters, countless sounds, etc. Thus, the range of applications here is quite broad. 13 [Other Functions] (contents of the table） 1) Quality 2) Advertising 3) Communication 4) Investment protection [Not covered]（contents of the table） product identification function, which makes it possible or easier for the consumer to identify a particular product by means of a sign or a particular presentation of the goods 【2nd column of the table】 Collective marks 【Law Reading Session】 Section 97 Collective marks (1) All signs eligible for protection as a trade mark within the meaning of section 3 may be registered as collective marks if they are liable to distinguish the goods or services of the members of the proprietor of the collective mark from those of other enterprises in terms of their origin from a given enterprise or their geographical origin, their nature, quality or other properties. A collective mark shall be described as such when the mark is applied for. (2) The provisions of this Act shall apply to collective marks unless otherwise provided in this Part. Article 97 Collective Marks (1) Subject to section 3, all signs which qualify for protection as trade marks may be registered as collective marks if they are capable of distinguishing the goods or services of the members of the proprietor of the collective mark from those of other undertakings in respect of their origin, geographical origin, nature, quality or other attributes. In an application for a collective mark, it shall be described as a collective mark. (2) The provisions of this Act shall apply to collective marks except as otherwise provided in this Part. [On the Nature of Collective Marks] （Distinction from Trademark） 【subtitle】 The collective mark is just a special trend. And now it collective mark does not serve as a commercial indication of origin in relation to a good or service. it serves as a distinguishing sign from one collective of companies to other companies associations. So it is a collection of companies rather than a collection of goods and services. (Collective marks are just a particular trend. Nowadays, a collective mark does not serve as a commercial sign of origin in relation to goods or services. It is therefore a collection of companies rather than goods and services.) [Other Functions] (contents of the table） Distinguishing criteria: collective business origin, geographical origin, quality, other special characteristics [Not covered]（contents of the table） 14 Marks consisting exclusively of quality marks as mere indications of quality or condition are not sufficient (A quality mark that is merely a sign of quality or condition is not sufficient) 【Third column of the table】 Certification marks 【Law Reading Session】 Section 106a Certification marks (1) The proprietor of the certification mark shall certify in respect of the goods and services for which it was applied for, one or more of the following characteristics: 1. the material; 2. the mode of manufacture of goods or performance of services; 3. the quality, accuracy or other characteristics, with the exception of geographical origin. The mark shall be capable of distinguishing goods and services which are certified from goods and services which are not so certified. A certification mark shall be described as such when the mark is applied for. (2) The provisions of this Act shall apply to certification marks to the extent that this Part does not provide otherwise. [On the Nature of the Certification Mark] 【subtitle】 Certification mark is not about identification of products, services or companies, not in collectives of companies but to provide proof of certain quality characteristics. For example, super characteristics of the goods or services. So identify guarantee by this more working market out attributing the goods or services. A certification mark is not intended to identify a product, service or company, or a company collectively, but rather to provide proof of certain qualitative characteristics, for example, the superlative properties of a good or service. The certification mark thus ensures that the goods or services are more competitive in the marketplace. [Main Functions of the Certification Mark] ➢ Certain characteristics of the goods or services so identified are guaranteed by the certification mark without attributing the goods or services to a particular company ➢ Transparency, Neutrality, Testing and monitoring obligations certification mark guarantees certain characteristics of the goods or services identified without attributing the goods or services to a specific company transparency, neutrality, testing and monitoring obligations [Other Functions] (contents in the table） The presence of one or more of the following characteristics is guaranteed 1.the material 2.the method of manufacture of the goods or the provision of the services 3. the quality, accuracy or other characteristics [Excluding] Geographic origin 5. Formal Requirements 15