Understanding the Legal Framework and Registration Basics of German Trademarks

1. Overview of the German Trademark System

Germany has one of the most structured and mature trademark protection systems in the world. The central authority responsible for trademark registration and administration is the German Patent and Trademark Office (DPMA). It handles examination, publication, opposition, cancellation, and recordal of changes in ownership or licences.

Germany follows a first-to-file principle - this means that the first person to file an application for a distinctive mark generally secures the rights, regardless of who used it first. However, unregistered marks may still enjoy limited protection if they have achieved sufficient public recognition, as discussed later in this series.

2. Who Can Apply for a Trademark

Any natural or legal person - including companies, partnerships, associations, or individuals- may apply for and own a trademark in Germany.

Foreign applicants do not need to reside in Germany, but they must appoint a German representative if they have no domicile, seat, or commercial establishment within the country. This representative must be a German attorney-at-law or a German patent attorney.

A power of attorney is not required for German attorneys or patent attorneys but must be filed in writing (in German or with a German translation) for other representatives.

No notarisation is necessary, which simplifies foreign filings.

3. What Can Be Registered as a Trademark

Under German law, a trademark can consist of any sign capable of being represented clearly and precisely, provided it can distinguish the goods or services of one enterprise from those of another.

Eligible signs include:

• Words (including personal names)
• Letters and numbers
• Logos or figurative elements
• Three-dimensional shapes (product shapes, packaging)
• Colours or colour combinations (if distinctive)
• Sound marks, motion marks, multimedia marks, and holograms

The only essential requirement is that the sign be distinctive and not descriptive of the goods or services it represents.

4. Grounds for Refusal

The DPMA examines trademark applications only for absolute grounds for refusal - it does not assess conflicts with earlier marks ex-officio. Applicants must therefore conduct their own prior trademark search.

Trademarks cannot be registered if they:

• Lack distinctive character
• Are descriptive of goods or services (e.g., “Organic Bread” for bakery products)
• Are customary in trade to describe such goods/services
• Consist exclusively of shapes dictated by the nature of the goods, necessary to obtain a technical result, or adding substantial value
• Are contrary to public policy or morality
• Are deceptive, such as misrepresenting the origin or quality of products
• Contain legally protected symbols (e.g., national emblems) without authorization
• Are filed in bad faith

However, marks that lack inherent distinctiveness may still be registered if the applicant proves **acquired distinctiveness** through use.

5. Distinctiveness and Recognition Thresholds

Distinctiveness plays a central role in trademark registration. If a mark is not inherently distinctive, it may still be registered after acquiring secondary meaning in the marketplace.

The level of public recognition required varies:

• Distinctive signs: 20–25% recognition among relevant consumers is generally sufficient.
• Descriptive signs: Must show 50% recognition to prove acquired distinctiveness.
• Well-known marks (under Article 6-bis of the Paris Convention): Must achieve 60–70% recognition in Germany.
• Such recognition must be proven by professional opinion polls conducted under established legal standards.

6. Unregistered Marks and Commercial Designations

Germany also provides limited protection for unregistered marks and commercial designations, which include trade names, business symbols, or logos.

Protection arises automatically through use, provided the sign achieves sufficient public recognition in Germany. However, this protection is often local and may coexist with other marks, especially in cases involving identical personal names.

If an unregistered mark is known only outside Germany, it will not be protected unless it qualifies as a well-known mark under the Paris Convention standards.

Key Takeaways

• The DPMA is the authority for German trademark registration.
• Germany adheres to the first-to-file principle.
• Applicants should ensure the sign is distinctive and non-descriptive.
• Foreign applicants must appoint a German representative.
• Unregistered marks can have protection only if publicly recognized.
• Distinctiveness and recognition levels are quantitatively defined in case law.

Conclusion

Germany’s trademark system is designed to balance accessibility for applicants with the protection of public interests and existing rights. A clear legal framework under national, EU, and international law ensures that brand owners - whether local or global - can obtain robust protection.