Participating public

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In German trademark law , the relevant public are groups of people who come into relevant contact with branded goods or services.

Legal relevance

Trademark law knows two cases in which the relevant public are expressly mentioned in the law: on the one hand, the traffic validity according to § 4 No. 2 Trademark Law (MarkenG) and, on the other hand, the public enforcement according to § 8 paragraph 3 MarkenG.

Traffic validity

Legal basis

The relevant public are legally significant when examining whether a sign has acquired public recognition as a trademark . The legal basis for this is the alternative of § 4 No. 2 MarkenG, according to which trademark protection is not created through entry in the trademark register , but "through the use" of the relevant "mark in business dealings", "insofar as the mark has acquired public recognition as a mark within the relevant public Has".

Definition of the public involved

According to a definition already from the Reichsgericht (RG), the public involved are not the competitors, but the buyers of the company using the mark, i.e. dealers and consumers, possibly also manufacturers.

Determination criteria of the public involved

The relevant group of people in the public includes those for whose product decision the identification function of the symbol used is important. The relevant group of people of the public involved is determined in each individual case by the respective purpose and the sales opportunities of the products (or services) concerned.

Type and extent of the involved public in detail

For high-quality goods, such as B. jewelry, watches, furs, etc., a comparatively small group of people can meet the criterion "involved public". The relevant group includes those people who either purchase such products or who are interested in purchasing them and who consider the product range. In the case of everyday products, on the other hand, such as goods for mass consumption, the relevant part of the public involved includes all persons who come into contact with the products as retailers and consumers. However, the relevant part of the public involved does not include people who seriously see themselves neither as buyers nor as interested parties in a future purchase of the product, but rather for whom the purchase of the product is at best with a view to increased sales advertising and price reduction by the manufacturer or seller seems possible. In any case, however, the group considered for the criterion "involved public" must not be an insignificant group of people.

Traffic enforcement

Legal basis

Unlike in the case of Section 4 No. 2 MarkenG, where trademark protection arises directly through traffic validity, the issue here is the acquisition of trademark protection in accordance with the alternative of Section 4 No. 1 MarkenG, namely through entry in the trademark register of the German Patent and Trademark Office (DPMA). The peculiarity here is that the sign applied for for registration is in itself not registrable because the absolute grounds for refusal of § 8 Abs. 2 MarkenG oppose the registrability . According to § 8 Abs. 3 MarkenG, these obstacles can in part, namely in the case of § 8 Abs. 2 No. 1, 2 and 3 MarkenG, be overcome, "if the trademark is prior to the time of the decision on the registration as a result of its use for the goods or services for which it was registered, has prevailed in the relevant public ".

Definition of the public involved

According to the definition by the highest court rulings, the relevant public are i. S. v. § 8 Abs. 3 MarkenG to understand the circles in which the sign is to be used or will have an impact.

Type of public involved

These are primarily the end users of the goods or services in question. However, not only the actual buyers, but also all potential consumers or recipients of the goods or services concerned come into consideration for this. So count z. B. in the case of products such as canned vegetables and fruit, all consumers are included in the relevant public even if they are not used to consuming canned foods. Trade circles are also part of the involved public. Traffic enforcement exclusively in this category of stakeholders and not also with the end users is, however, regarded by the above-mentioned case law as insufficient.

Scope of the public involved

When determining the for a traffic enforcement of a sign that is not protected per se i. S. v. § 8 para. 3 Mark the required quantity of the relevant public will be able to generally assume that it be the majority of the eligible persons must. However, it seems neither possible nor helpful to specify exact percentages. Because the required degree of enforcement is not only due to the different types of trade marks in Section 8, Paragraph 2, No. 1 to 3 and the different dimensions of the competitors' need to keep clear , but also depends on the particular circumstances of the individual case. In this way, the case law always avoids stipulating abstract percentages of the involved public for the respective required degree of enforcement, but at least regularly requires a degree of enforcement of at least 50% in the involved public.

(Further) differentiation

It is noticeable that in the case of § 4, no. 2 Trademark (traffic validity ) of the text "... within relevant public ..." is selected, while in the case of § 8. 3 MarkenG (traffic enforcement ) of " the relevant public "is spoken. With this differentiation, the legislature wants to make it clear that traffic validity must not be equated with traffic enforcement. Therefore, to obtain the traffic validity i. S. v. § 4 No. 2 MarkenG not synonymous with the groups of people who want to enforce traffic i. S. v. Section 8 (3) MarkenG requires. Rather, the respective public involved are to be determined according to the meaning and purpose of the respective standard, namely on the one hand the direct emergence of trademark protection (Section 4 No. 2 MarkenG) and on the other hand acquisition of registration as a trademark of a sign that is actually unprotectable (Section 8 (3) MarkenG) . The different wording in the standards above is furthermore that it is not for the acquisition of trademark protection through secondary meaning to the participating public total arrives. For the criterion of traffic validity it is not sufficient if, in general, only a small part of the public concerned regards the sign used in question as an identifying distinguishing sign and thus a trademark. Rather, what matters is that it is a relevant part of the public involved. Traffic enforcement i. S. v. Section 8 (3) of the MarkenG, on the other hand, must take place "... in the relevant public ...", i.e. in its entirety, in order to make the registered mark used as a trademark registrable. In practice, therefore, it is not uncommon for i to obtain traffic validity . S. v. § 4 no. 2 Trademark satisfy a lesser degree than enforcement for the acquisition of the registration capability by means of traffic enforcement iS.v. Section 8 (3) of the Trademark Act.

See also

Individual evidence

  1. ↑ Collection of decisions of the Reichsgericht in civil matters. (RGZ), Vol. 155, pp. 108, 126.
  2. ↑ K.-H. Fezer: trademark law. 4th edition. Munich 2009, paragraph (Rn) 124 on § 4 MarkenG
  3. ↑ Federal Court of Justice (BGH), In: Commercial legal protection and copyright . (GRUR) 1960, pp. 130, 132.
  4. ↑ K.-H. Fezer: trademark law. 4th edition. Munich 2009, marginal number 125 on § 4 MarkenG
  5. ↑ BGH, in: GRUR 1963, p. 622.
  6. ↑ RGZ, vol. 167, p. 171 ff.
  7. ^ F. Schricker, in: GRUR 1980, p. 462.
  8. ↑ BGH, in: GRUR 1986, p. 894 f.
  9. ↑ BGH, in: GRUR 1971, pp. 305, 307.
  10. ↑ K.-H. Fezer: trademark law. 4th edition. Munich 2009, Rn 430, 432 on § 8 MarkenG
  11. ↑ See in particular BGH, in: GRUR 1970, p. 77, and GRUR 1990, p. 360; also: Federal Patent Court (BPatG), in: GRUR 1996, p. 489 f, as well as decisions of the BPatG (BPatGE), vol. 28, p. 44 ff, and vol. 17, p. 127 ff.
  12. ↑ K.-H. Fezer: trademark law. 4th edition. Munich 2009, Rn 426 on § 8 MarkenG
  13. ↑ K.-H. Fezer: trademark law. 4th edition. Munich 2009, Rn 121 on § 4 MarkenG

literature

  • K.-H. Fezer: trademark law. 4th edition. Munich 2009, ISBN 978-3-406-53530-7 .
  • A. Baumbach, W. Hefermehl: Trademark law. 12th edition. Munich 1985, ISBN 3-406-30521-0 .
  • U. Dreiss, R. Klaka: The new trademark law: creation and expiry, proceedings, collision and judicial enforcement. Bonn 1995, ISBN 3-8240-0123-3 .

Web link

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