Legal classification of the presentation of goods
The presentation of goods is a central concept in industrial property protection and refers in particular to the specific external appearance or design of a product. This term is especially important in trademark law and is regulated in various statutes such as the Trademark Act (MarkenG) and the Act Against Unfair Competition (UWG). The objective of legal protection is to safeguard commercial origin and ensure undistorted competition.
Definition and differentiation – What is meant by the presentation of goods?
In legal terms, the presentation of goods refers to the characteristic design and external appearance of a product, which can be composed of various elements. These include:
- Design (e.g. shape, color, packaging)
- Labels
- Imprints and graphic elements
- Patterns and ornaments
- Placement of signs or lettering
Technical features that serve solely the function or technical purpose of the product are not considered part of the presentation.
Protection of presentation under the Trademark Act
Protectable presentations according to § 3 MarkenG
According to § 3 (1) MarkenG, all signs, in particular words including personal names, images, letters, numbers, sound signs, three-dimensional shapes (including the shape of a product or its packaging) and other types of presentations can be protected as trademarks, provided they are capable of distinguishing the goods or services of one enterprise from those of other enterprises. This also includes specific features of presentation.
Function of origin and likelihood of confusion
Legal protection eligibility requires that the presentation fulfills the so-called function of origin i.e., is perceived by the relevant public as an indication of commercial origin. If there is a likelihood of confusion with a protected trademark or an already established presentation due to similar or identical presentation, there is a right to injunctive relief and, if applicable, damages under the provisions of the Trademark Act.
Presentation protection and the Act Against Unfair Competition (UWG)
§ 4 No. 3 UWG – Protection against imitation
Protection of the presentation of goods is granted through the so-called supplementary competition law protection of achievements. According to § 4 No. 3 UWG, it is considered unfair to imitate goods or services if
- there is competition-based self-protection due to the distinctive character of the presentation,
- a performance is imitated, and
- there is a risk of deception about commercial origin or unreasonable exploitation or detriment to the reputation.
This provision particularly covers cases of imitation of distinctive presentationsthat serve as an indication of origin to the average consumer.
Elements of the facts
For successful competition law protection of presentation, the following requirements must be met:
- Distinctive character of the presentation: The presentation must have characteristics that allow the product to be distinguished from comparable products in the market.
- Imitation: There is a direct or indirect adoption of the presentation.
- Relevance to competition: The imitation must be likely to harm the interests of the company (e.g., by deceiving about commercial origin).
Distinction from other intellectual property rights
The presentation may overlap with other intellectual property rights:
Design right (formerly industrial design right)
According to the Design Act (DesignG) the specific design of a product can be protected as a registered design. Requirements include novelty and individual character; protection covers the aesthetic appearance, but not functional features.
Copyright law
If the design of the presentation qualifies as a work of applied art eligible for copyright protection, additional protection may exist under the Copyright Act (UrhG). However, according to case law, the threshold for protection is generally high.
Patent law and utility models
Purely technical solutions and functional features that do not affect the external design are only eligible for protection under patent or utility model law and are not covered by presentation protection.
Scope and limits of presentation protection
Temporal and territorial validity
Protection of a registered trademark is generally unlimited in time as long as the trademark is used to preserve rights and renewed. Protection under competition law for the presentation persists as long as the presentation remains distinctive and relevant for competition in the market.
Grounds for exclusion
Protection of the presentation is excluded if the presentation is regarded by the public as descriptive or customary. Purely functional presentations or designs that arise from the nature of the product itself are also excluded from protection (§ 3 (2) MarkenG and § 4 No. 3 UWG).
Claims and legal consequences in the event of infringement of presentation protection
If there is an infringing imitation or violation of presentation protection, various legal claims are available, including:
- Claim for injunctive relief (prevention of further use or imitation)
- Claim for removal
- Claim for damages
- Claim for information (for preparing calculation of damages)
- Claim for destruction or recall
Enforcement of these claims is regularly pursued under civil law, often in summary proceedings (e.g., interim injunctions).
Summary
The presentation of goods possesses an independent and multi-layered protection mechanism in law. At the intersection of trademark, competition, and design law, it enables companies to protect their products against imitation and exploitation of reputation. The decisive factor is always that the presentation is capable of indicating commercial origin and possesses a certain individual character in competition. Legal assessment always requires examination on a case-by-case basis under the relevant statutes and in light of current case law.
Frequently Asked Questions
Who is legally responsible for ensuring goods are placed on the market with the required presentation?
In principle, in Germany the manufacturer or the entity placing the goods on the market is responsible for the correct presentation of goods. The respective obligation may arise from various legal provisions, for example from product-specific laws such as the Food and Feed Code (LFGB), the Product Safety Act (ProdSG), the Packaging Act (VerpackG), or special regulations concerning electronic devices, chemicals, or medical devices. Responsibility includes ensuring that the product bears all legally required information, warnings, instructions for use, CE markings, or other safety features before being placed on the market. Importers and traders may also be held liable, particularly if they import goods from third countries or apply their name/brand, making them legally regarded as manufacturers.
What legal requirements exist for the presentation of goods with regard to warnings and instructions for use?
The obligation to attach warnings, safety notices, and instructions for use arises especially from the Product Safety Act (ProdSG) and the German Civil Code (BGB). According to these provisions, products must be presented in such a way that, when used as intended and foreseeable, the safety and health of persons are not endangered. Manufacturers or entities placing products on the market are required to provide products with the necessary notices for safe use, which often include information on risks, intended use, handling, care, or special hazards (e.g., electrical devices, chemicals). These notices must be in German and formulated clearly. For certain product groups, there are more extensive requirements, for example for toys, medicinal products, or technical equipment.
What is the significance of the CE mark for the legal presentation of goods?
The CE mark is a central instrument of the European Single Market and serves as proof that a product meets European safety, health, and environmental requirements. It is mandatory for numerous product categories, for example for machinery, electrical devices, toys, and construction products. Legally, it is required that the CE mark is affixed visibly, legibly, and permanently by the manufacturer before the product is placed on the market or put into service for the first time. By affixing the CE mark, the manufacturer declares, on their own responsibility, conformity with all relevant EU directives (“Declaration of Conformity”). A violation of this provision can lead to the product being removed from the market and fines being imposed.
Must the packaging of a product meet certain legal requirements?
Yes, the packaging of products is subject to various legal requirements, in particular under the Packaging Act (VerpackG), but also under food law, chemicals law, or other special regulations. The VerpackG requires manufacturers and traders to label and register packaging with regard to environmental compatibility, take-back obligations, and disposal (e.g., via the LUCID packaging register). In addition, packaging must often contain product information such as ingredients, weight, manufacturer information, best before dates, or recycling instructions. In the food sector, additional requirements such as lists of ingredients, allergens, and nutritional information apply.
What are the legal consequences of missing or defective presentation of a product?
If legally required information, safety notices or markings are missing, a wide range of legal consequences may follow. Authorities can order sales bans, recalls, or removal of products from the market. Fines or significant penalties can also be imposed, particularly if consumers suffer harm. Under competition law, warnings from competitors are possible due to so-called market conduct rules (§ 3a UWG). Civil law claims due to breaches of information obligations or defective product safety are also conceivable.
Are there industry-specific special regulations regarding the presentation of goods?
Yes, there are extensive special regulations depending on the industry and type of product. In food law, the EU Food Information Regulation (LMIV) and national provisions apply, specifying exactly the nature and scope of information to be provided. In chemicals law, for example, the REACH or CLP Regulation applies, which require special safety data sheets, labeling elements, and warnings. For medical devices, the MDR and national laws set out very specific requirements concerning instructions for use, safety features, and traceability. There are also additional labeling and presentation obligations in the areas of textiles, electronics, or toys, which must be given particular attention in the respective sector.
Do online offers also have to include certain legal information regarding “presentation”?
Yes, special legal information obligations also apply to the offering of goods in online trade. In addition to general product details, § 5 TMG (Telemedia Act), the EGBGB (Introductory Act to the BGB), and the Price Indication Ordinance (PAngV) must be observed in particular. In the electronic sense, “presentation” refers to making all mandatory information available even before the conclusion of the contract, including detailed product descriptions, price, delivery conditions, vendor information and, where applicable, notices about disposal, safety, or product specifics. If this information is missing, warnings, fines and even contractual invalidity may be threatened.
