Geography Reference
In-Depth Information
6.91
Case R0675/2010-2,
121
which concerned an application by a group of farmers
for the collective mark 'BIODYNAMIC', was held by the Second Board of
Appeal of OHIM to be a descriptive word and not registrable under Art 7(1)(c)
as it described the characteristics of the goods which other enterprises might
legitimately wish to use in the course of trade.
6.92
Unlike certification marks which are available in some countries, collective
marks do not necessarily certify the quality of the goods, although this is
sometimes the case. For example, the OHIM Trade Marks Manual has pointed
out that regulations governing use frequently contain provisions to certify the
quality of the goods and services of the members of the association and this is
acceptable.
122
It is for the applicant to decide whether the trade mark is applied
for as a collective mark or as an individual mark.
(b) Eligible applicants
The OHIM Trade Marks Manual points out that ownership of collective
community trade marks is limited to (i) associations of manufacturers, produc-
ers, suppliers of services, or traders which, under the terms of the law governing
them, have the capacity in their own name to have rights and obligations of all
kinds, to make contracts or accomplish other legal acts and to sue and be sued;
and (ii) legal persons governed by public law.
123
The first category of owners
typically comprises private associations with a common purpose or interest with
their own legal personality and capacity to act. Therefore, multiple applicants
with separate legal personality or temporary unions of companies cannot be
owners of a Community collective mark. As regards the second type of owners,
the concept 'legal persons governed by public law' is broadly interpreted by
OHIM to include for example, 'Consejos Reguladores' or 'Colegios Profesion-
ales' under Spanish Law and other legal persons governed by public law such as,
for example, the European Union, states or municipalities, which do not
necessarily have a corporate structure.
124
When the applicant for a Community
collective mark is such a legal person governed by public law OHIM does not
require details concerning membership in the regulations to be filed.
125
6.93
(c) Permitted use of a geographical name in accordance with honest practices
in industrial or commercial matters
Article 66(2) provides that a collective mark shall not entitle the proprietor to
prohibit a third party from using in the course of trade such signs or indications,
6.94
121
Decision of 15 February 2011.
122
OHIM Trade Mark Manual, 83, citing OHIM decision of 10/05/2012, R 1007/2011-2, para 13.
123
Ibid, at 84.
124
Ibid.
125
Ibid at 85.
