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The certification mark

Since 2019, new trade mark category for certifying bodies

Since January 2019, it has also been possible to register quality seals or test marks of neutral certification companies in Germany as certification marks for the goods and/or services that have undergone the respective certification process. In contrast to the individual trade mark, this new trade mark category focuses on the guarantee function; that means that it is not about distinguishing the goods or services of a particular manufacturer or supplier from those of another manufacturer or supplier (as in the case of the individual trade mark), but about certifying a specific characteristic for the goods or services marked with it. This certifying nature must derive directly from the sign of the certification mark.
The compulsory regulations governing use must specify the characteristics to be certified by the certification mark as well as the relevant test and supervision measures and the conditions of use.

The main features of the certification mark are:

• Neutrality – The proprietor of the mark as a kind of neutral body is meant to be able to certify certain characteristics of goods or services by means of the certification mark – therefore, the proprietor of the mark must not himself be a manufacturer, trader or supplier of the goods and/or services in question; the proprietor of the mark and the user of the mark must be independent of each other both legally and commercially.
• Supervision/control – The useful certification of specific characteristics of goods or services is only possible in a sensible way if compliance with the characteristics certified is tested and supervised and the authorisation to use the mark depends on this. The proprietor guarantees the presence of and compliance with the characteristics of the goods/services certified.
• Transparency – The exact characteristics to be certified by the certification mark, as well as the test and supervision measures, which ensure the permanent presence of the characteristics, should be recognisable and transparent for consumers. The regulations governing use, which must contain this information, are entered in the register and are thus accessible to everyone.

Requirements for the regulations governing use of the mark

The compulsory minimum contents of the regulations governing use of the certification mark are prescribed in section 106d (2) of the Trade Mark Act (only in German). For example, the proprietor of the mark must provide information on, among other things,

• the characteristics of the products certified,
• the conditions of use and on
• the test and supervision measures.

Concrete information on each item is required; the minimum information must be specified, at least in principle, in the regulations governing use. With regard to (technical) details, additional references to other publicly accessible sources are possible (e.g. publications available on the Internet). The regulations governing use of the mark must be clearly structured and worded in such a way that the subject matter and scope of certification are plausible to third parties.

Initial experience gained

The DPMA has so far received just over 100 applications for certification marks. Among others, the state quality seal (Grüner Knopf (green button)) for clothing produced in a fair and environmentally friendly manner and the word mark "active office certificate" DE 3020190090361 for ergonomic office furniture were registered.
Some applications have not been successful. Reasons for this were, for example, that the trade mark category "certification mark" had been chosen by mistake, as a result of misunderstanding its specific nature and requirements. As it is not possible to change the trade mark category during the ongoing procedure, applicants should carefully consider before applying for a trade mark whether it is actually a certification mark or rather an individual trade mark or a collective mark.
Applications were assessed as devoid of any distinctive character if it was not possible to infer from them the required certifying nature. Frequently, the submitted regulations governing use of mark required clarification.

Picture: DPMA

Last updated: 21 March 2024