14. Mar 22

BGH: Protection of regional indications of source as collective marks

Regional indications of source for food items can, according to a ruling of the Bundesgerichtshof (BGH) – Germany’s Federal Supreme Court – be protected under trademark law even if they do not conform to the EU criteria for geographical indications.

In a ruling from July 29, 2021, the Bundesgerichtshof held that regional indications of source can benefit from trademark protection under German law even if they do not meet the EU criteria for protected geographical indications (ref: I ZR 163/19 et al.). We at the commercial law firm MTR Rechtsanwälte note that in doing so the Court has strengthened the protection of collective marks at the national level.

The almost 1500-strong farmers’ cooperative that filed the lawsuit in question had registered its pork and beef products featuring a regional indication of source in their name. In order to be allowed to make use of the collective mark, it was not enough for the animals to come from the region. The members of the cooperative also had to adhere to strict quality standards with regards to how the animals were fed, kept, slaughtered, etc., and the cooperative filed these standards with the German Patent and Trademark Office.

Yet other businesses from the region were also using the same brand name for their products without being members of the cooperative and without adhering to the relevant standards. One such case, for instance, concerned a butcher’s shop. The farmers’ cooperative viewed this as an infringement of its trademark rights and therefore filed a lawsuit. Its first taste of success came in 2019 when the Oberlandesgericht (OLG) Stuttgart – the Higher Regional Court of Stuttgart – made it clear that unfairly exploiting the good reputation enjoyed by the collective mark was unacceptable and that consumers must be able to clearly recognize that they are not dealing with a product from the cooperative.

The BGH has since upheld the ruling and dismissed the appeal. The impact of this decision also extends to other collective marks. The Court held that a product can be protected as a German collective mark even if it is not eligible for protection according to the EU criteria. Accordingly, national protection of collective marks can exist parallel to or independent of European regulations.

Lawyers with experience in the field of trademark law can advise on a wide range of issues pertaining to trademark law: from registration and trademark protection, to asserting legal claims in response to infringements.

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