DECISION • TRADE MARK LAW
‘‘Glucose Tablets’’ (Traubenzuckerta
Decision of the Federal Supreme Court (Bundesgerichtshof)
18 October 2017 – Case No. I ZB 3/17
Trade Mark Act, Sec. 3(2), No. 2, Code of Civil
Procedure, Sec. 308(1)
Ó Max Planck Institute for Innovation and Competition, Munich 2018
Keywords 3D trade mark Á Technical nature of the shape Á Cancellation procedure Á
Absolute ground for refusal of protection Á Essential features of a good’s shape
exhibited in the trade mark
1. Only such designs are technically determined and excluded from trade
mark protection pursuant to Sec. 3(2), No. 2, of the Trade Mark Act in
which the result obtained by the shape is of a technical nature. If an
essential feature of the shape conveys merely taste, sight or haptic sensory
impressions, therein lie results in the non-technical ﬁeld, so that the
absolute ground for refusal of protection is not triggered.
2. In the cancellation procedure, the three grounds for refusal listed in Sec.
3(2) of the Trade Mark Act do not comprise a uniform matter in dispute.
The Federal Patent Court therefore may not examine ex ofﬁcio a ground for
refusal not asserted by the party requesting cancellation.
1 – A. The three-dimensional trade mark number 398 04 308 has been registered
since 6 August 2003 for the trade mark proprietor as a sign having acquired a
distinctive character through use for the goods ‘‘glucose, including for dietetic
Translation by Allison Felmy.
IIC (2018) 49:603–611