List of goods and services

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The list of goods and services is an important, indispensable prerequisite for registering a trademark in the trademark register of the German Patent and Trademark Office . This results from Section 32 (2) No. 3 of the Trademark Act (MarkenG), according to which a trademark application (among other things) must contain "a list of goods and services " "for which registration is requested".

Legal basis

The legal basis for the indispensability of a list of goods and / or services is the functional requirement of distinctive character set by § 3 Paragraph 1 MarkenG : "As a trademark, all signs ... that are suitable for goods or services can be protected Company from those of other companies ".

Basics

The "information on the directory of goods and services" according to Section 32 (2) no. 3 MarkenG, for which the registration of the mark is requested, are formal minimum requirements for registration. This is because the list of goods and services - in addition to other minimum requirements - is decisive for determining the filing date of the trademark in accordance with Section 33 (1) MarkenG in conjunction with (in conjunction with) Section 32 (2) No. 3 MarkenG. Defects in the list of goods and services can, if they are not remedied within a period set by the DPMA, result in a fictitious withdrawal of the trademark application, Section 36 (2) sentence 1 of the Trademark Act i. V. m. §§ 33 Paragraph 1, 32 Paragraph 2 No. 3 MarkenG.

The requirements in detail

Classifiability

According to Section 3 Paragraph 1 No. 3 in conjunction with V. m. According to Section 20 (1) of the Trademark Ordinance (MarkenV), "the goods and services ... are to be designated in such a way that the classification of each individual product or service into a class of the classification according to Section 19 (1)" (MarkenV) is "possible". According to § 19 (1) MarkenV, "the classification of goods and services" is based on the official "classification of goods and services ". "In addition, the alphabetical lists of goods and services" (Annexes 2 and 3 to the MarkenV) "should be used for classification", Section 19 (2) MarkenV.

Use of the names of the classification

According to § 20 Abs. 2 MarkenV "as far as possible ... the designations of the class division, if these do not require explanation, and the terms of the alphabetical lists in § 19 Abs. 2" (MarkenV) "should be used customary terms are used ".

Listed according to classes

"The goods and services are to be classified according to classes in the order of the classification", § 20 Abs. 3 MarkenV.

Requirement of certainty

Since the scope of protection of a registered trademark is determined and delimited by its associated list of goods and services, it is necessary, for reasons of legal certainty , to formulate the list of goods and services clearly. This is the only way to distinguish it from unclaimed goods or services and thus from other brands that are identical or similar in form.

restrictions

Pursuant to Section 39, Paragraph 1 of the Trademark Act, the applicant has the right to "restrict the list of goods and services contained in the application" at any time, including retrospectively. This can be done by deleting or expressly excluding certain goods or services (so-called disclaimer ), for example for the purpose of eliminating absolute barriers to protection that stand in the way of a trademark registration. A retrospective restriction of the list of goods or services is also particularly useful in order to reach amicable delimitation agreements in the event of brand collisions with competitors , e.g. B. by way of a declaration of prerogatives and obligations .

See also

Individual evidence

  1. ↑ Karl-Heinz Fezer , Markenrecht, 4th edition, Munich 2009, Rn 31 to § 32 MarkenG
  2. ↑ Ordinance on the implementation of the Trademark Act (Markenverordnung - MarkenV) of May 11, 2004 (Federal Law Gazette I, p. 872), amended by Article 1 of the Ordinance of October 15, 2008 (Federal Law Gazette I, p. 1995)
  3. ↑ Federal Court of Justice (BGH), in: Journal of Commercial Legal Protection and Copyright (GRUR) 1985, p. 1055 f
  4. ↑ See in particular Section 8 (2) of the Trademark Act.

literature

  • Karl-Heinz Fezer, Trademark Law, 4th edition, Munich 2009

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