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  • Writer's pictureMarie-Avril Roux Steinkühler

🇬🇧 - #3 The new certification mark

With the transposition of the Trademark Directive, a new type of trademark was introduced in Germany: the certification mark.

Article 28 (1) of the Trade Marks Directive states that Member States may provide for the registration of guarantee or certification marks – the term is at choice. Guarantee and certification marks are defined in Article 27 (a) of the Directive. Accordingly, “guarantee and certification mark” means a trade mark which is described as such when the mark is applied for and is capable of distinguishing goods or services which are certified by the proprietor of the mark in respect of material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics, from goods and services which are not so certified.

The characteristics guaranteed by the certification mark are to be specified in a regulation governing its use. In contrast to the collective mark, whose users are precisely defined, the use of the certification mark is open to any person or organisation that corresponds to these characteristics.

Until now, German trademark law, unlike French law, only provided for individual and collective trademarks. With the transposition of the Directive, the certification mark is now regulated in § 106a to §106h of the German Trade Mark Act (MarkenG) and serves to ensure that quality label and test labels can also obtain protection under trade mark law. The trademark can be registered by any natural or legal person, provided that their activity does not involve the supply of the certified goods or services (obligation of neutrality according to Article 28 No. 2 of the Directive).

French trademark law already provided for a certification mark. Until the trade mark law reform in France, this mark was known as “marque collective de certification”. The transposition of the Trade Marks Directive in France has thus in particular had the effect of eliminating any confusion which might have existed until then: the so-called “marque collective de certification” (collective certification mark) was renamed “marque de garantie” (guarantee mark) in order to avoid confusion with the collective mark (marque collective). Incidentally, at the European union level, the corresponding Union trademark is called a “certification mark”) - why make it simple when it can be complicated.....

Articles L. 715-1 to L. 715-5 of the French Intellectual Property Code now regulate the guarantee mark in French trademark law (in Germany certification mark), while Articles L. 715-6 to L. 715-10 contain the provisions on the collective mark. Until now, only legal persons could register a guarantee mark in France. From now on, registration will be open to natural and legal persons under private and public law, provided that they comply with the neutrality obligation laid down in Article 28 No. 2 of the Directive.

The first certification mark registered in Germany is the “Grüner Knopf”. It was registered at the German office of intellectual property, the DPMA, under the number 30 2019 108 870 in July 2019 and is a label of guarantee for certain social and environmental criteria for textile products. Textiles with such a label must meet 46 criteria, which are checked by independent auditors with regard to both human rights standards and sustainability. The owner of the mark is the German Federal Ministry for Economic Cooperation and Development.


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