he notion of “position mark” was born in Germany. German lawyers consider that the
subject-matter of the position mark is “the special kind to arrange or to place a sign on
the product”1
.
The position mark is required when the sign alone can’t be registered as a trademark.
The German doctrine gave birth to this notion to protect this kind of sign as mark. Hence, if the
sign by itself is capable of being protected, the position mark is not needed (for example the sign
“coca cola” don’t need a special positioning for being protected) and the application as a
position mark makes sense when it is the only way to reach the protection of the sign.
To resume the German understanding of the position mark, it is a sign, positioned on a special
part of the product in a constant size or in a special proportion to the product (for example: in a
relative distance to the middle of the product) or silhouetted against the product (for example in
a special contrast).
If we have a look on the article 4 of the Community trademark regulation (CTMR),
we can notice that a comunity trade mark may consist of “any signs capable of being
represented graphically, particularly words, including personal names, designs, letters,
numerals, the shape of goods or of their packaging, provided that such signs are capable of
distinguishing the goods or services of one undertaking from those of other undertakings”.
This article establishes a list of the principal categories of trademark (for example word mark or
figurative mark). But this list is not exhaustive as the word “particularly” evidences.