In principle, the proprietor of a registered trade mark can be anyone who has legal capacity under national law. Pursuant to Art. 5 EUTMR and Sec. 7 No. 1 and 2 MarkenG, the proprietor of a registered trade mark may initially be a natural^[1] or legal person, including a public body. Several proprietors of a trade mark form a fractional community^[2] if they have not regulated their legal relationships differently; they are then necessary parties to the proceedings.^[3]
The proprietor of a trade mark can therefore be, for example, the European Company (SE), the association with legal capacity,^[4] the foundation, the AG, the GmbH, the KGaA and the eG.
Art. 3 EUTMR and Section 7 No. 3 MarkenG equate companies and other legal entities that have the capacity to be the bearer of rights and obligations of any kind in their own name, to conclude contracts or perform other legal acts and to stand before the courts with legal persons.
This includes the EEIG, German the OHG or KG as well as pre-corporations of corporations.^[5] A foreign company is also capable of being a party and thus covered,^[6] which, according to its statutes, would have to be treated as a company with legal capacity similar to a limited liability company under German law under the law of the country of incorporation and which has relocated its administrative headquarters to Germany.^[7]
The ability the civil law partnership^[8] to be the proprietor of a trade mark was initially denied by the First (Trade Mark) Senate of the Federal Court of Justice,^[9] meaning that the shareholders could only be trade mark proprietors jointly. This case law has become obsolete since the Second (company law) Senate recognised the legal capacity of the (external) company^[10] under civil law.^[11] The EUIPO and the Federal Patent Court^[12] have registered trade marks that were applied for by civil law partnerships. In the case of a German trade mark application, the name and address of at least one partner authorised to represent the company must also be stated in view of publicity and market protection aspects^[13] (Section 5 I No. 2 sentence 2 MarkenV).^[14]
One advantage of the external legal subjectivity of a civil law partnership that is important in practice is that a change in the membership has no influence on the continuation of the legal relationship with the partnership.^[15] In the event of a change in the membership, the partnership therefore remains the registered owner of the trade mark without the need to amend the register, as was the case under previous case law. The company is authorised to act through its representatives.^[16]