'Normal' individual trade marks are used on this basis to distinguish the goods or services of one company from those of other companies. However, special types of signs are also referred to as trade marks:
The collective mark^[1] is intended to distinguish the products of the members of an association from those of other companies. In this respect, there is no fundamental difference to individual trade marks.^[2] However, the distinguishing function of collective marks is not related to the individualisation and origin function of the goods or services identified with them from a single company Rather, according to Art. 74 EUTMR and § 97 I MarkenG, it is a matter of individualising and distinguishing the goods or services of the members of the proprietor of the collective mark according to their commercial or geographical origin, their nature, their quality or their other characteristics in relation to the goods or services of other undertakings.^[3] Consequently, the essential feature of the collective mark is that its proprietor is an association to which members belong who use the collective mark to identify their products (Art. 74 ff. EUTMR and §§ 97 ff. MarkenG). The exact conditions under which the members are authorised to use the trade mark are regulated in the trade mark statutes (Art. 75 EUTMR; Art. 16 EUTMIR, in the case of international registrations Art. 76 DV or § 102 MarkenG). In principle, the same requirements apply to collective marks as to other trade marks.^[4] The scope of protection also does not differ fundamentally from other trade marks.^[5]
An important exception, however, concerns the ground for refusal of registration of geographical indications. These can be registered as collective marks by way of exception (Art. 29 III 1 TMD, Art. 74 II EUTMR or § 99 MarkenG),^[6] which is why collective marks are particularly interesting for regional associations.
For example, a registered association has registered the trade mark 'Dresdner Christstollen' for stollen. The members of the association may use the trade mark under certain conditions. For example, the articles of association can stipulate that all labelled goods must originate from a certain region or that the collective mark must dominate the presentation of the goods and other signs must not be used. The collective mark may be withdrawn.
Despite this possibility of granting geographical indications protection as a collective mark, collective marks do not ultimately serve the purpose of geographical indication.
Thus, the collective mark 'Darjeeling', which is protected for tea, cannot be used against a trade mark 'Darjeeling'; for clothing. There is a lack of similarity of goods. Even if the public believes that the labelled products have the same origin, this does not establish product similarity.^[7]
Furthermore, the owner of the collective mark cannot assert a geographical term contained in the trade mark without restriction. Rather, the public interest of bona fide competitors is taken into account via the limitation provision of Art. 74 II 2 EUTMR, § 100 MarkenG^[8].^[9] A fair use of the geographical indication therefore remains possible.
The 2015 trade mark law reform has led to the introduction of a certification mark^[10]. In accordance with Art. 83 EUTMR, Section 106a MarkenG, a certification mark is a trade mark which is designated as such at the time of application and is capable of distinguishing products for which the proprietor of the trade mark guarantees the material, the manner of manufacture of the goods or services, the quality, accuracy or other characteristics - with the exception of geographical origin - from those for which no such guarantee exists. The certification mark can therefore be used on this basis to guarantee the characteristics of a product and to prohibit the use of a third party whose products do not have these characteristics. The certification mark has advantages above all in the context of use to preserve rights, where use indicating origin can be dispensed with.^[11] Pursuant to Art. 84 EUTMR; Art. 17 EUTMIR (in the case of international registrations, Art. 76 DV) and Section 106d MarkenG, the certification mark must be accompanied by regulations governing use, in which, above all, the persons authorised to use the mark must be specified, as well as the characteristics to be guaranteed by the mark and the manner of examination and monitoring. The regulations governing use may be amended under certain conditions in accordance with Art. 88 EUTMR, § 106 f. MarkenG.
An example of a certification mark would be, for example, a graphically designed organic seal that guarantees certain characteristics of the labelled goods. The protection extends to the specific graphic design, but not to the descriptive word element 'Bio'.
The extent to which the certification mark must be recognisable as such has not yet been clarified. Art. 85 II EUTMR, Sec. 106 e II MarkenG, a certification mark will be refused if there is a risk that the public is misled as to the character or meaning of the trade mark, in particular if the trade mark may give the impression that it is something other than a certification mark. This impression can be counteracted by amending the statutes in accordance with paragraph (3) of the regulations. So far, the EUIPO has taken a stricter line than the DPMA, which requires that the certification character must be recognisable from the trade mark itself.^[12]
The scope of the neutrality obligation under Art. 83 II EUTMR, Sec. 106b I MarkenG is also unclear. Accordingly, the owner of the certification mark may not engage in any activity involving the supply of goods or services covered by a guarantee. The EUIPO is generous in this respect and does not object to the coexistence of individual trade marks and certification marks. It remains to be seen how the DPMA will proceed. Under certain circumstances, the applicant for the certification mark will have to cancel the corresponding individual marks. The individual trade marks are likely to lapse anyway as a result of the prohibition of use to be included in the articles of association.^[13]