Differentiation suitability (trademark law)
In trademark law, the ability to distinguish is understood as the suitability of a sign to distinguish the goods or services of one company from those of other companies.
background
In order to obtain trademark protection , a symbol must be able to distinguish the goods or services of one company from those of other companies. This represents the so-called “core function” of the brand. The Trademark Act (MarkenG) already mentions some signs that basically fulfill this function. These are in particular words, including personal names, images, letters, numbers, audio symbols, three-dimensional designs including the shape of the goods or their packaging, as well as other presentations including colors and color combinations (Section 3 (1) Trademark Act).
According to the MarkenG, the suitability for differentiating the goods or services is explicitly denied signs that consist exclusively of a shape that is determined by the type of goods themselves, that are necessary to achieve a technical effect or that give the goods significant value (§ 3 (2) Trademark Act).
