Peukert, Alexander --- "The Competitive Significance of Collective Trademarks" [2012] ELECD 202; in Rosén, Jan (ed), "Individualism and Collectiveness in Intellectual Property Law" (Edward Elgar Publishing, 2012)

Book Title: Individualism and Collectiveness in Intellectual Property Law

Editor(s): Rosén, Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857938978

Section: Chapter 11

Section Title: The Competitive Significance of Collective Trademarks

Author(s): Peukert, Alexander

Number of pages: 14

Extract:

11. The competitive significance of
collective trademarks
Alexander Peukert*

1. INTRODUCTION

This chapter deals with the protection of collective trademarks under
European Union (EU) and German law. It was triggered by the remark-
able statement of the ECJ in its 2009 L'Oréal decision, according to which
the protected functions of a trademark include not only the essential
function to guarantee the origin of goods or services, but also its other
functions, "in particular that of guaranteeing the quality of goods or
services and those of communication, investment or advertising".1 The
aim is to explore whether the expansionist functional paradigm of L'Oréal
also applies to collective marks or whether the ownership structure and
competitive significance of this type of trademark requires a different
treatment compared to individual trademarks.2
The peculiarity of collective marks is their ownership structure. The
holder of the right is not an individual market participant, but an associa-
tion of producers of goods or suppliers of services. The members of the
association entitled to use the collective mark may bring an action for
infringement only if the association, as the proprietor, agrees.3 Thus, col-
lective marks are owned by one legal person, but they may be lawfully used


* Dr. iur., Professor of Law, Chair for Civil Law, Commercial Law and
Intellectual Property Law, Goethe University Frankfurt/Main, Cluster of
Excellence Normative Orders, http://www.jura.uni-frankfurt.de/peukert/.
1 ECJ Case C-487/07 L'Oréal/Bellure [2009] ECR ...