The judgement of the German Supreme Court of 24th February 2000 (Docket Nr. I Zb 13/98)
The grounds for refusal set forth in § 8 (2) of the Trademark Act are final. The criteria for refusal of the registration under § 8 (2)(3) of the Trademark Act do not justify any increased requirements for distinctiveness within the meaning of § 8 (2)(1) of the Trademark Act.
On the prerequisites for distinctiveness within the meaning of § 8 (1)(1) of the Trademark Act in respect of advertising slogans.
This decision applies to the application for the word trademark – “Logo” – for innumerable goods of classes 3, 5, 16, 21, 24 25, 29, 30, 32 – 34. The trademark division of the Trademark Office rejected the application due to the lack of distinctive character. The Federal Patent Court supported the decision of the Trademark Office and stated that the mark is devoid of any distinctive character and the term logo is common language usage. The German Supreme Court rescinded this judgement and held that there is no description of the goods in question and the term is not a word of common language usage but rather an ambiguous one. The matter has been recommitted to the Federal Patent Court, who has not yet decided upon it.
This and other judgements of the German Supreme Court show that substantial differences may occur between the practice of the German Patent Office and the Federal Patent Court on the one hand and the adjudication of the German Supreme Court on the other. In the above dispute however, there is a danger that the mark “Logo” will be indeed registered for numerous goods because it is neither commonly used for these goods nor does it belong to common language usage. Especially, the consequences of such a trademark registration (and of similar ones) are not to be underestimated.