Need to keep clear (trademark law)

from Wikipedia, the free encyclopedia

As a requirement of availability is the trademark law (in Germany under § 8 2 para. 2 no. MarkenG ) referred to the legitimate interest of competitors of a company to be able to use descriptive indications of their goods or services free.

background

The need to keep it free is one of the absolute barriers to protection in trademark law. Accordingly, a trademark that consists exclusively of signs that a competitor needs to designate the type, quality, quantity, purpose, value or origin of the goods or services cannot be registered as a trademark, as the competitors use them Characters have a legitimate interest in free use. However, the need to keep a product or service free always relates to specific goods or services and does not apply in general, so that the registration of a label may also be possible within a goods or service class due to restrictions. However, it is also possible that a sign enjoys trademark protection due to traffic enforcement, although there would be a need to keep the sign free.

This “descriptive information”, which may be required by competitors, must be separated from the “descriptive conceptual content” of a trade mark, which is used when examining the distinctive character . The “descriptive content” refers to the target audience, ie not to the competitors, but to the “consumers”.

Examples

  • Diesel cannot be registered as a trademark for fuels because other fuel manufacturers or distributors use this term to describe the type of fuel. On the other hand, diesel can definitely be registered for clothing, since it cannot be assumed that a clothing manufacturer needs this term to describe an item of clothing.
  • Liquid cannot be entered for fuels either, as this can be a description of the nature of a fuel that a competitor might need.
  • 2006 World Cup for various goods and services is very controversial. On the one hand, the reference to a world championship taking place in 2006 could represent a determination, on the other hand the question arises whether, for example, small plastic figures or the like can be intended for a soccer world championship.

Individual evidence

  1. ↑ Federal Patent Court, decision of June 28, 2000, Az .: 28 W (pat) 78/99 . Admody Lawyers Public Company. Retrieved June 24, 2017.