German Trademark Law - Germany
Tactile trade marks
In a decision dated October 6, 2006 the German Federal Supreme Court (FSC) held that tactile trade marks may be registered.
In the past, the German Patent Court (GPC) rejected tactile trade marks on the ground that such trade marks could not be represented graphically and the graphic representation of a trade mark in the register has to be clear, precise, self-contained, easily accessible, intelligible, durable and objective, according to the case law of the European Court of Justiice (ECJ) Since these requirements could not be met, the representation of a photograph of an object published in the register could only represent this object but not the wide range of sensory impressions that could be derived from the object and that were in fact the content of a tactile trade mark. Moreover, the variety and diversity of individual sensory impressions could not be described objectively and could therefore not be reproduced graphically as requested by the above stated definition of the ECJ. Registration of tactile trade marks was therefore excluded without exception.
The FSC, however, held that for a sign that is to be conveyed by sense of touch, only the relevant characteristics of an object have to be described when that object is to convey the sensory perceptions. Contrary thereto, it is not necessary to describe the sensory perceptions as such. The purpose of the requirement of the graphic representation can be fulfilled when the object conveying the sensory impressions is described sufficiently in its relevant characteristics. For example, when a specific surface structure of an object is to be conveyed it shall be sufficient to describe the proportions of the cavities and elevations of the object as well as their alignment to each other.
Comments:- This decision of the FSC paves the way for tactile trade marks as a new type of trade mark and may also influence and enhance the possibilities of applicants to file and register other modern forms of trade marks such as olfactory marks.
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