Certification mark strengthens the legal position of test seals

The practical importance of test seals, quality and certification signs is growing. Due to the growing number of products and services on offer, consumers are increasingly looking for trustworthy verification marks to help them decide for or against a product or service. In this context, consumers not only pay attention to quality marks that relate to the quality of the goods or services, but criteria such as animal and environmental protection as well as sustainability are increasingly moving into the focus of consumer awareness. Until now, many suppliers have sought protection for their seals and quality marks through individual or collective marks.

With the entry into force of the German Trademark Law Modernization Act [Markenrechtsmodernisierungsgesetz, “MaMOG”] on 14 January 2019, a new form of mark was introduced which fundamentally differs from both individual and collective trademarks in many aspects and is becoming more and more widespread in practice: the national “certification mark” ["Gewährleistungsmarke”] (§§ 106a to 106h German Trademark Act [Markengesetz, “MarkenG”]).

With the certification mark, quality seals or test marks of neutral certification companies can now obtain trademark protection.

The certification mark enables independent trademark owners to award their quality seals or test marks to selected companies. With this, the trademark owner assumes the guarantee for certain characteristics of the goods and services of another supplier, such as the organic production of goods, fair production conditions or special safety standards.

The first certification mark that was registered at the German Patent and Trademark Office [Deutsches Patent- und Markenamt, “DPMA”] in July 2019 is "Der Grüne Knopf". The purpose of this certification mark is to ensure, in respect of various textile products, that the textile suppliers meet certain due diligence obligations regarding human rights and environmental requirements, and that the products themselves also satisfy certain social and environmental criteria. The proprietor of the certification mark is the German Federal Ministry for Economic Cooperation and Development [Bundesministerium für wirtschaftliche Zusammenarbeit und Entwicklung, BMZ].

Main features of the certification mark: transparency - neutrality - monitoring

The decisive difference between the certification mark and the traditional individual mark is the fact that the guarantee function, rather than the origin function, is in the foreground. This means that the public will not perceive the certification mark as indicating that the product or service bearing it specifically originated from a particular undertaking, but as indicating certain independently guaranteed characteristics of the product or service bearing it. This guarantee function gives rise to the main characteristics of the certification mark, namely transparency, neutrality and monitoring:

• Transparency, because the owner of the certification mark must make the terms of its use publicly available in a regulation governing the use of the certification mark. It must transparently present the conditions under which a license is granted for the mark as well as the product and quality characteristics for which the certification mark vouches.

• The principle of neutrality means that the certification mark requires a strict separation between the trademark owner and the user. Thus, in contrast to the collective mark, the certification mark guarantees the independently verified quality of a specific product or service. The trademark owner may not engage in any activity that involves the provision of certified products; in other words, it may not itself offer the goods and services for whose quality it assumes the guarantee. Own quality seals, such as those used by some supermarket chains, therefore cannot be protected as certification marks.

• Finally, the owner of a certification mark has obligations to verify and monitor. On the one hand, when granting a license it must verify that the licensee fulfils the conditions for using the certification mark and, on the other hand, it must ensure through appropriate monitoring measures that the licensee uses the certification mark in accordance with the regulations governing its use.    

The principles of neutrality and transparency to which the certification mark is subject, combined with extensive verification and monitoring obligations for the trademark owner, increase the requirements as to the clarify of the seal and strengthens the legal certainty for consumers compared to the conventional seals and quality marks - perhaps even completely replacing them in the future. Should you have individual questions on this topic, please feel free to contact our experts in the Retail and Consumer Goods sector group. 

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