Distinctive character (trademark law)
Distinctive character is the specific suitability of a brand , goods or services of one company to be distinguished from those of other companies and thus to enable an operational allocation of the goods or services. (Origin and quality function)
In order for a trademark to be entered in the trademark register, it must a. Have distinctive character. In contrast to the abstract suitability for differentiation , this is based on the goods claimed in the list of goods and services of the trademark. Based on the wording in the MarkenG (Section 8 (2) No. 1 MarkenG), the case law of the Federal Court of Justice and the ECJ only allows a trademark application to be rejected if the trademark has no distinctive character, i.e. H. no matter how small a distinctive character, it is enough to overcome this barrier to protection. According to the established case law of the Federal Court of Justice , a trademark has a distinctive character if it cannot be assigned a descriptive term that is in the foreground and if it is not a common word in German or a known foreign language that is always used by the traffic as such and not is understood as a means of differentiation. The opinion of the domestic public involved is decisive. The ECJ defines this as the trade and / or the normally informed and appropriately attentive, discerning average consumer.
A distinction must be made between the lack of distinctive character (Section 8 (2) No. 1 MarkenG) and the descriptive information in accordance with Section 8 (2) No. 2 MarkenG . Although this usually results in large intersections, this is not the case a priori.
- Words that - for example in advertising - are often used in such a way that the traffic does not perceive them as a means of differentiation,
- Words that describe only one property of the claimed goods and
- Words with which there is a risk of confusion due to a mere rearrangement of word components ( anagrammatic sound rotation )
cannot be registered as a trademark.
- Beer as a word mark can probably not be registered as a brand for the goods beer, since a descriptive term is in the foreground for the target public. On the other hand, the word mark beer could well have distinctive character for articles of clothing.
- Diesel probably cannot be registered for fuels either. Here, too, a descriptive term is in the foreground for the audience. Here, too, diesel can definitely be entered for clothing, since it cannot be assumed that a clothing manufacturer needs this term to describe an item of clothing. Such an entry can be seen on the Diesel fashion label .