The fashion world is becoming more and more sustainable. Many companies want to signal to consumers that they adhere to certain standards. A wide range of quality features can be certified. Since the last reform of trademark law, there is a certification mark for this purpose
As a company in the fashion industry, sooner or later you will want to register one or even several trademarks for your own products and in this way identify your goods, in particular to distinguish them from the goods of your competitors. Consumers can then use this characteristic labelling as a guide when making a purchase decision.
A trademark guarantees in particular the origin of the products, i.e. the affiliation to a certain company, behind which there may also be a certain promise of quality. However, certain values of the company can also be linked to the brand.
Sustainability, organic quality or fair production conditions play an increasingly important role for consumers. Therefore, more and more fashion companies want to label their garments as “organic” or “fair trade”.
Such labelling is often done via so-called certification marks.
What is this type of trademark about?
Trademark owners of a warranty mark assume a guarantee for certain properties of the goods of other suppliers, so that quality seals and test marks, for example, can also be protected under trademark law.
The certification mark must be capable of distinguishing goods or services for which the owner of the mark guarantees the material, the manner of manufacture of the goods, the quality, accuracy or other characteristics – with the exception of the geographical origin – from those for which no such guarantee exists (Art. 83 to 93 UMV).
Before the certification mark was integrated into German trade mark law for the first time in 2019 (now in Sections 106a to 106h MarkenG), there was only the individual or collective mark. These two types of trade marks – in contrast to the certification trade mark – have the function of an indication of origin. While the “classic” individual trade mark indicates the origin of the products marked with it from a certain company, the collective trade mark – as the name already suggests – is about the identification with products from a certain collective, e.g. an association.
But when does an application for a certification mark come into consideration and what is its scope?
The application for a certification mark sounds like an attractive option for a fashion company that wants to ensure sustainable production for its garments.
But one thing should definitely be kept in mind: Although the trademark can be registered by any natural or legal person (unlike the collective trademark), the applicant’s activity must not at the same time include the supply of the certified goods for which this guarantee exists. This means that the owner of this trademark and the supplier of the labelled products must therefore necessarily be different persons and independent of each other. This is to achieve a “neutrality” of the warranty holder and to avoid, for example, specially set “quality seals”. We therefore note: In most cases, fashion labels will not be able to register their own warranty marks, but only obtain rights to the warranty marks of third parties.
In addition, the trademark owner’s articles of association must specify exactly who is to be entitled to use the trademark, which properties are guaranteed, the method of production, and also the monitoring and control of compliance with the guaranteed warranty features, including sanctions.
The first certification mark registered at the German Patent and Trade Mark Office (DPMA) is the “Green Button”, a state certification mark for fairly and ecologically produced clothing. This mark is intended to guarantee for certain textile products that the companies offering them meet certain due diligence requirements for human rights and the environment and that the products themselves also meet certain social and environmental criteria. The Federal Ministry for Economic Cooperation and Development (BMZ) is the owner of the certification mark. If a company wishes to use the Green Button as a product seal, this is only possible after the standards set by the statutes have been checked and the trademark owner (in this case BMZ) has subsequently granted a licence. The latter remains responsible for the fulfilment of the guaranteed criteria.
Many people are probably also familiar with the Global Organic Textile Standard (GOTS) seal for natural textiles. Behind this certification mark registered for the EU is a textile processing standard for organic fibres, whereby the entire production chain “from field to fashion” is subject to ecological and social criteria.
What now – apply for a trademark or obtain a licence?
Many applications for certification marks, e.g. at the DPMA, have failed so far. Often the reason was that the trade mark category “certification mark” had been chosen by mistake. It is therefore important to be clear about the function of the trade mark before filing the application, as it may simply be an individual/collective trade mark. It is not possible to change the trade mark category afterwards in an ongoing examination procedure (the DPMA examines the requirements for registration of the trade mark after filing the application). We will be pleased to help you! If you are wondering which certification mark might be the right one for your products and need support in obtaining a licence for it, you have come to the right place.
Author: Olivia Wykretowicz