Since a trade mark registration always creates a limited monopoly for a sign for a specific company, not just any sign can be registered as a trade mark. Rather, the interests of the trade mark applicant on the one hand and various interests of the general public and specific individuals on the other must be reconciled.
The public interest is initially taken into account by the fact that not every sign can be a trade mark. Rather, the sign must fulfil certain conditions in order to be capable of being a trade mark at all.^[1] In this context, the sign must, above all, be capable of being represented with clarity and precision^[2] and capable of distinguishing in some way^[3].
For example, a smell cannot currently be represented with sufficient clarity and precision and therefore cannot be a trade mark.
The interests of the general public are also taken into account by the absolute grounds for refusal.^[4] In particular, a sign is excluded from registration if it can serve to describe certain characteristics of the products characterised by it, because otherwise the term would be blocked for competitors and they would only be able to describe the properties of their own products under more difficult conditions. Furthermore, it must be examined whether a trade mark has sufficient distinctive character at all with regard to the specifically claimed products, i.e. whether it can enable the public to distinguish between the designated products.
For example, the public will not normally perceive the shape or colour of a product, such as a standard bottle or the red colour of an item of clothing, as a distinguishing mark. In this case, the shape or colour is devoid of any distinctive character and cannot be registered.
While the protectability of a trade mark and absolute grounds for refusal serve to protect public interests, the relative grounds for refusal serve to protect the individual interests of third parties. These relative grounds for refusal^[5] mean that the proprietors of rights that are older than the trade mark application can oppose the application for a later trade mark and prevent its registration or at least have it cancelled.
For example, the proprietor of an earlier trade mark can still file an opposition against the registration of a later trade mark application in the course of the registration proceedings and will be successful if the later application gives rise to a likelihood of confusion. However, he can also later challenge the later trade mark, which in the meantime has been legally registered, in invalidity proceedings and demand its cancellation.^[6]