A dispute currently pending before the German Federal Supreme Court will determine the destiny and firepower of a few thousand collective marks, which essentially consist of an indication of geographical origin.1
Legally, it is complicated. Indications of geographical origin can be protected in different ways, on the one hand by special regulations, on the other hand by trademark law. In the past, the German legislator in particular used special regulations to protect geographical indications against misleading information about origin and quality. In the meantime, the areas of agricultural products, foodstuffs and spirits have been exhaustively regulated by special EU regulations, which has been confirmed by the European Court of Justice. In these fields, indications that are not protected by EU law, are not protected at all.
But what happens if such collective marks get in the way of European regulations?
The German Federal Court of Justice will have to clarify this question in proceedings brought by the "Bäuerliche Erzeugergemeinschaft Schwäbisch Hall". This producer organization for agricultural products is the proprietor of such collective marks with geographical content: "Hohenloher Landschwein" ("Swabian-Hall Swine") and "Hohenloher Weiderind" ("Hohenlohe beefcattle"). The statutes of the trade marks specify strict requirements for the use of these trade marks with regard to origin, feed and species-appropriate husbandry. A butchery in Hohenlohe did not want to comply with these requirements and sold meat from mass animal husbandry as "Hohenloher Landschwein" and "Hohenloher Weiderind". Whether the meat came from the Hohenlohe region remained a matter of dispute. The producer group claimed injunctive relief and damages from the butchery on the basis of its collective marks.
The first instance ruled against the producer group. According to the Regional Court, the protection of geographical indications by the EU regulations is exhaustive in the agricultural sector. But Hohenlohe is not yet protected by such a regulation. Quality requirements could therefore not be introduced and enforced by collective marks. Only a crude misleading as to the origin of the products could be attacked legally, but no such deception could be proven in the specific case.
The Stuttgart Higher Regional Court2, as the second instance, initially saw the matter in the same light and wanted to affirm the conclusive character of the EU regulations. It was only the question of the burden of proof for the geographical origin that the Court of First Instance wished to impose on the butchery and rule against it to that extent. Surprisingly, however, in the weeks following the oral hearing the Court was persuaded by the producer association to change and now assumed that the protection of the geographical name and the collective mark coexisted. The oral hearing was reopened – which hardly ever happens in practice – and the Court ruled fully against the butchery. The appeal was not admitted by the Higher Regional Court. However, an appeal for admission was successfully lodged with the Federal Court of Justice. The fundamental question on which the judges in Karlsruhe will now decide has significance for thousands of collective trademarks.
The article first appeared in Lebensmittelzeitung issue 38 of 20 September 2019, page 26. Prof. Dr. Ulrich Hildebrandt was a party expert in the proceedings.
1. Federal Court of Justice, Decision of 05/10/2017, I ZR 163/19.
2. Higher Regional Court of Stuttgart, Judgement of 25/07/2019, 2 U 73/18 – Hohenloher Landschwein/Hohenloher Weiderind II.
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