License plate (right)
In trademark law, labels are understood to mean brands , company labels , work titles and geographical designations of origin .
General
Like utility models , patents or competition rights, trademarks belong to the intangible assets that, like property , are subject to absolute legal protection. This commercial legal protection for intangible property includes the exclusive right of use of the right holder to sole use ( exclusive right ), from which results the prohibition against third parties not to be allowed to use these rights without the consent of the right holder. If there is a risk of repetition, the right holder has an injunction against the infringer, which he can enforce through an injunction .
The marks include in particular brands, company names, work titles and geographical designations of origin. Business transactions are only able to distinguish products , services or companies from one another through labels . Labels fulfill a quality function, through which the consumer can expect consistent product quality / service quality , as well as a communication, investment and advertising function.
Legal issues
The legal term "label" is understood to mean brands, business names and geographical indications of origin, this is also evident from the final list in Section 1, Paragraph 1 of the Trademark Act . According to the central protective provision of Section 3 (1) of the Trademark Act, all signs , in particular words including personal names , images , letters , numbers , gestures , audio symbols , three-dimensional designs including the shape of a product or its packaging or other presentations including colors and color combinations , are under legal protection that are suitable for distinguishing the goods or services of one company from those of other companies.
Legal protection begins according to § 4 MarkenG with the entry in the trademark register . According to Section 7 of the Trademark Act, rightholders can be natural persons , legal entities or partnerships . The right to cease and desist against infringers results from Section 14 (5) of the Trademark Act. Is a trademark in the trademark register in accordance with § 33 registered Trademark Act, it must by the trademark owner with the symbol "®" (of English Registered Trademark , "registered trademark") are indicated next to the mark. The term of protection of a registered trademark ends after ten years ( Section 47 (1) of the Trademark Act); it can be extended several times by ten years.
If the representation of a registered trademark in a dictionary , a lexicon or a similar reference work gives the impression that the trademark is a generic name for the goods or services for which the trademark is registered, the owner of the trademark can be requested by the publisher of Work according to § 16 para. 1 MarkenG require that the reproduction of the trademark is accompanied by a notice that it is a registered trademark. This provision generally implicitly allows the lexical use of registered trademarks, but internationally requires the reference “®”. This provision also applies to Wikipedia , so that reference to protected trademarks in the articles is necessary.
species
According to § 5 MarkenG, company names and work titles are also protected as business names . In this context, the corporate identifiers are those signs that are used in business dealings as a name , a company or a special designation of a business or a company . Work titles are the names or special designations of book titles , stage works , printed matter , film titles , music titles or other comparable works. There are also manufacturer brands for goods ( e.g. Persil ® ) and service brands for services (e.g. Sparkasse ® ). The logo , which legally always exists as a word and image mark , a combination of word and image mark , is also considered a mark . Otherwise it is a signet (figurative mark) or a pure word mark.
In addition, all domains or e-mail addresses on the Internet are considered to be protected identifiers. The domain is subject to the MarkenG if it represents a trademark protected by trademark in the form of a company name, a brand or a work title. The trademark protection in favor of a domain arises in the case of a not yet registered trademark through the use of the domain in business transactions and when the domain name has gained public recognition as a trademark. Does the domain grabbing someone to register for a domain name, but not yet used in commercial transactions, the release claim by a contradictory Third, according to § 15 BGB to the naming rights are supported because a case of unauthorized names presumption according to § 12 sentence 1 Case 2 BGB present. The case concerned the Saarländischer Rundfunk with its registered word mark “SR ® ”, whose corresponding domain “sr.de” was reserved for someone else at DENIC eG . The BGH gave the Saarländischer Rundfunk right in November 2013 and granted it the right to consent to the deletion. The trademark law also covers e-mail addresses that contain a protected trademark in accordance with Section 4 MarkenG in the sender identification. Therefore, the owner of an e-mail address that contains a protected trademark in the sender identification may prohibit third parties from using it.
Typical examples
Often, signs only become protected signs through artistic design ( font , font size , font color), because this individualization has made them unmistakable.
The letter sequence “ARD”, for example, is initially considered a freely usable character. However, if it is suitable for distinguishing the services of a company (here ARD ® ) from those of other companies and is therefore registered in the trademark register, it is - in the case of ARD - a protected umbrella brand . Due to its specific graphic design, the number "1" used has been trademarked since March 1993 and has been used as a source identifier since April 1993 . The Bayer Cross ® shows an even greater height of creation , because the company name “Bayer” in a circle crosses at the letter “y” and is therefore unmistakable. The characteristic lettering was first registered on January 6, 1904 under the file number F 4777 and the serial number 65777 in the character roll of the Imperial Patent Office and is one of the oldest and most famous symbols.
Administrative offense law
The unauthorized use of the coat of arms of the federal government or a country or the federal eagle , the official flag of the federal government or a country or the emblem of the red cross on a white background or the designation "Red Cross" or the coat of arms of the Swiss Confederation is in accordance with § 124 para. 1 OWiG is an administrative offense that can be punished with a fine . The parallel provision of § 145 MarkenG also treats as an administrative offense if someone in the course of business unlawfully displays a coat of arms , a flag or another national emblem or coat of arms of a domestic place or a domestic community or other municipal association, an official Test or guarantee marks or a mark, a seal or a designation are used to identify goods or services.
Criminal law
In addition to protection against unauthorized use under ancillary criminal law , the use of a label can also be punishable by itself , e.g. B. the use of marks of anti-constitutional organizations in Germany under § 86a StGB is punishable.
Legal consequences
Through the exclusive right to which the right holder is entitled, he excludes third parties from using his marks. Anyone wishing to use a protected label in business transactions requires the consent of the legal owner in accordance with Section 14 (2) of the Trademark Act . Anyone who violates this exclusive right is considered an infringer. According to § 143 MarkenG, the infringer will be punished with imprisonment of up to three years or a fine in the event of unlawful use. The right holder has a right to omission and deletion from the infringer in accordance with Section 50 (1) MarkenG.
International
Trademark rights are territorially bound rights that protect the right holder only in the state for whose territory they were acquired, for example by being entered in a national register of trademarks or by recording use in the respective state. At the international level, the Paris Convention ( Paris Convention) has existed since 1883 , in which essentially uniform rules for patents and trademarks have been agreed, and since 1891 the Madrid Agreement (MMA), which makes agreements on the international registration of national trademarks. According to the “Madrid System”, named after the Madrid Agreement and the Protocol to the Madrid Agreement, internationally registered trademarks (IR trademarks) can be obtained. The responsible World Intellectual Property Organization ( WIPO ) in Geneva grants a bundle of IR trademarks that are equivalent to national trademarks in terms of their scope of protection.
In Austria , the Trademark Protection Act (MarkenSchG) is intended to prevent similar labels from contributing to the risk of confusion. Trademarks that can be protected must be signs that can be represented graphically (§ 1 MarkenSchG). A trademark can be protected for ten years, an extension is possible (§ 19 MarkenSchG). Various laws protect the name ( Section 43 ABGB ) or the company ( Section 19 Paragraph 1 UGB ), in particular Section 19 UGB, the business name (Section 9 UWG), trademarks (Section 1 MarkenSchG), furnishings (Section 9 Para. 3 Trademark Act) or title (§ 80 UrhG ). In the event of a collision, the older right has priority according to the priority principle, which must be proven by entry in the trademark register.
The Switzerland is a member of the Madrid Trademark Agreement and the Protocol Relating to the Madrid protection agreement. According to Art. 1 MSchG, the trademark is a sign that is suitable for distinguishing the goods or services of one company from other companies. Art. 2 MSchG in particular excludes marks from trademark protection that are common property , unless they have established themselves as trademarks for the goods or services for which they are claimed. A trademark can be protected for ten years, an extension is possible (Art. 10 MSchG).
In the Anglo-American legal system there is a preliminary stage with the legal status of registration, on the one hand the Unregistered Trademark ("™") for goods and on the other hand the Service Mark (" SM ") for services . The equivalent registration of trademarks in both areas of law is then the Registered Trademark , the symbol of which is the superscript “R” in a circle (“ ® ”).
See also
Web links
Individual evidence
- ^ Artur-Axel Wandtke / Claudia Ohst (eds.), Competition and Advertising Law , 2014, p. 463
- ↑ ECJ, judgment of September 29, 1998, Az .: C-39/97 - Canon = GRUR 1998, 922
- ↑ Frederick L. Ekey / Achim Bender / Georg Fuchs-Wissemann (ed.), Trademark Law , Volume 1, 2014, p 21
- ↑ Joachim Böhringer / Peter Bühler / Patrick Schlaich, Compendium of media design for digital and print media , Volume 1, 2008, p. 386
- ↑ Eugen Ehmann, Lexikon IT-Recht, special edition authorities , 2015, p. 121
- ↑ BGH, judgment of November 6, 2013, Az .: I ZR 153/12 = BGH GRUR 2014, 506
- ↑ BGH GRUR 2000, 608 , 610
- ↑ DPMA trademark register, register information BAYER AG
- ↑ Deutscher Arzte-Verlag, Zahnärztliche Mitteilungen , Volume 69, 1979, p. 6
- ↑ RGZ 170, 137, 151
