A trademark or trademark was officially introduced in Germany with the trademark reform in 1995. The trademark as a traditional name had not become sufficiently significant to the made necessary protection of services as a product. Now, a special, legally protected symbol, which is primarily used to distinguish the goods or services of one company from competing goods or services of other companies, extends the canon of intellectual property rights.
A trademark can also be used to clearly identify an entire company or the range of services of an entire geographical location (country, region, city) and to distinguish it from competing companies or offers .
Trademarks can be a single representation or a combination of one or more letters, characters, words, names, slogans, logos, symbols, images, sounds, sequences of sounds or of appearances and patterns of and for products of various kinds.
The legal concept of the brand differs from that of the brand in marketing . There it not only includes a protected symbol, but also the entirety of the properties of an asset that is associated with a brand name.
Term of "brand"
While the Reichsmarkenschutzgesetz of 1874 already spoke of a "trademark", the legislature coined the legal term "trademark" in the commodity designation law of 1894 . The Trademark Act of 1936 maintained this usage. In the course of the aforementioned trademark reform in Germany, on January 1, 1995, with the introduction of the Trademark Act (MarkenG), the trademark was again replaced by the trademark in the legal text, since not only goods but also services have been protected under a trademark since the late 1960s Characters can be distributed. However, this was not the only reason why the concept of the trademark was now too narrow. Because the change from the previously simpler designation of goods to “marking” by means of a much more diverse rendering of words, images, form and sound than an advertising medium was the reason for the change in designation. In the literature and in common parlance, however, the terms “trademark” and “brand” are still often used synonymously .
According to the Trademark Act, a trademark is understood to be a sign that is used to distinguish the goods and services of one company from those of other companies (function of origin). A trademark therefore always comprises a sign and a collection of goods or services that can be distinguished from the same or similar goods or services of other companies by the sign.
Denominations of origin, manufacturer's marks and logos in the sense of the trade mark have been known since ancient Greece and can be found on pottery and figurines that were primarily produced as export items. They served (as still today) the quality and originality security of the buyers of the selling trading house and their partners. Seals that closed vessels and sacks had the same function and were also among the ancestors of the “brand”.
Seals and badges, or simply the use of certain forms of packaging and containers, are also known from ancient times, which were intended to symbolize the origin and affiliation of certain products to certain workshops or areas of manufacture. It is difficult to determine today which rights and obligations were associated with this. Just like today, however, these symbols stood for a certain quality and have most likely been forged and imitated to simulate such a quality .
Even with the numerous found early medieval , Germanic + VLFBERH + T - swords of the 8th to the 11th century (modern transcription : Ulfberht ), it is a kind of brand , and because of the numerous variations of the inscription, such as + VLFBERHT + or VLFBERH + T, also from attempts at forgery.
However, producers and craftsmen also had similar aspirations for the designation of origin. Since the Middle Ages, every craftsman has set his mark ( signet ) as a manufacturer's mark at a certain point such as beams or walls.
Another root can be seen in the field of the arts. Since the Renaissance , it has become common for artists to stop naming their works and sign them. Here, clear profiles were soon recognizable, not only in terms of craftsmanship, but also in terms of style, conception of art and the ideological point of view of the artist. Soon there was downright admiration for artistic personalities. They culminated in the cult of genius around 1800. The concept of using the artist name as a brand for artistic authorship could be applied to numerous creative products. In this sense, a brand as a mark of artistic authorship is also present today in the broad spectrum of design and for works of other kinds protected by copyright.
It was only relatively late, in the 19th century, that dealers began to label products such as food that had previously been procured in unnamed sacks : the goods were filled in a kind of “dealer packaging”. Thus - at least in the food sector - the private labels were the first brands of their time.
In the year 1887, the obligation to affix the label Made in Germany was introduced in Great Britain with the Merchandise Marks Act - however not as a symbol of quality, but to protect British consumers from competition from Germany, which is considered to be inferior.
Value of a brand
The value of the intangible monopoly right of a registered trademark is measured according to its effect on the sales of the trademark owner and his business. The corresponding methodological evaluation can neither be determined by experiment nor by measurement without damaging the brand. As a substitute, detailed evaluation methods are known that break the overall problem down into manageable sub-problems. An experimental replacement method, but with limited validity, is the experiment by building a new brand in the same market and measuring the corresponding effort. Therefore, the valuation of the value of a brand is almost exclusively possible through an estimate alone.
The most common forms of trademarks are word marks and figurative marks. In addition, there are the combined word / figurative marks . The latter consist of a word and a picture component, which give an overall impression. In addition, other brand forms have been added in recent years. In particular the abstract color marks , sound marks , odor marks , slogans and three-dimensional mark forms. The legal development (influenced by European law) on registrability and the scope of protection of such trademarks in the event of infringement has not yet been completed.
List of trademark forms in accordance with Section 3 of the Trademark Act i. V. m.Trademark Ordinance and common sub-forms:
- Word mark
- Figurative mark
- Three-dimensional brand
- Tracer mark
- Color brand
- Sound mark
- Other brands
Path to trademark protection
Registration procedure (national)
First and foremost, trademark protection comes about through the registration of the trademark. In many countries such as Germany, Austria, Switzerland and Liechtenstein this is regulated by national patent offices. Specifically, these are the Patent and Trademark Office in Munich, the Patent Office in Vienna , the Federal Institute for Intellectual Property in Bern and the Office for Economics (AVW), Department of Intellectual Property Rights in Vaduz . Almost all countries in the world have similar institutions and regulations that provide for the registration of trademarks. These national trademarks are only valid for one country at a time. International or European trademarks must be registered with the European Patent Office in accordance with the Paris Agreement and the Madrid Agreement .
There are different ways of creating trademark protection. A trademark can also be created through use, provided the trademark has acquired public recognition ( usage trademark , No. 2 MarkenG). This is the case when a significant number of buyers of the goods and services claimed by the trademark assign this trademark to a company.
In addition, a notorious awareness of the brand can result in brand protection ( notoriety brand , No. 3 MarkenG).
The major part of the brands in Germany are the register marks (register mark , No. 1 MarkenG), as it takes a lot of effort to achieve public recognition or even notorious awareness for a mark. As a rule, usage marks are only found for goods or services that appeal to a very small, special audience, for example in special machine construction. The registration mark, which is discussed below, is a formal, absolute intellectual property right.
Trademark research prior to trademark application
Before registering a trademark, the applicant must observe a few points so that, on the one hand, trademark protection is granted at all and, on the other hand, optimal trademark protection exists in the event of registration. Companies often underestimate this fact and, out of ignorance, register their new brand with the relevant office without careful preparation. The surprise is correspondingly big when there are contradictions between trademark owners of existing and therefore older brands. The likelihood of matching syllables or entire word components of new names with already registered identifiers is increasing day by day. In terms of trademark law , one speaks in this case of collisions that can have far-reaching consequences.
In addition, it is part of modern brand management to plan and control the brand presence at an early stage. Disruptions or delays can have a decisive impact on the success of a new brand and, in the event of infringement of existing trademark rights, lead to expensive legal disputes. It is therefore often recommended to clarify the following questions before applying for a trademark:
- Is the new brand still available?
- Is it realistic to obtain trademark protection for the new brand?
- Does the new brand violate third party property rights?
- Can possible attacks on the new brand be averted?
- Who are the potential opponents with whom the new brand and its representatives will have to deal in trademark disputes?
The trademark offices do not examine such questions. It is up to the trademark applicant to ensure that the new trademark does not infringe the rights of other trademarks. For this reason, professional trademark research by patent or trademark attorneys and specialized research companies is recommended before filing an application .
Preparation of the research
In-house research or “in-house research” using common search engines can be the first step. In the next step, the relevant databases must be searched. The research and search strategy and the associated quality of the results depend on the data sources used and the practical experience of the researcher. If the trademark search does not identify any relevant, existing trademarks, this gives the applicant the necessary security to be able to continue to operate with the new trademark.
A general distinction is made between two types of research for trademarks:
This type of research clarifies whether the new trademark has already been applied for by competitors in an identical form for the same or similar goods or services and registered by the relevant trademark office. Identity in this case means absolute identity, that is, Coca-Cola is the same as Coca-Cola and only Coca-Cola and not Koka-Kola.
Similarity searches check whether the new trademark has already been registered with the relevant trademark offices in a similar form for the same or similar goods or services and whether appropriate trademark protection exists. Similarity in this case means visual or aural similarity, e.g. B. adidas is similar to abibas and adi dash . In the similarity search, the identity is usually also checked. Professional similarity searches use appropriate algorithms to determine written visual and phonetic similarities with older property rights and thus go beyond the capabilities of the databases made available by the trademark offices.
Carrying out the research
Before starting any research, the following questions must be clarified:
- What kind of research is required for the new brand?
- For which countries or economic areas should license plate protection be obtained for the new brand?
- For which classes of goods and services should trademark protection apply?
The type of search results primarily from the new brand or the term itself. In principle, the more descriptive the term is (online lexicon), the more the identity search is recommended. The more generic the term is (Wikipedia), the more useful the similarity research is.
The countries and economic areas in which the new brand is to be used later determine the databases and sources to be checked. If a trademark is to be used exclusively on the German market (i.e. if the internationalization of the trademark is not sought in the future either), it is sufficient to only research the DPMA's trademark collections.
For the registration of trademarks, it is also important for which goods and services trademark protection is to be obtained. The international brand classification (Nice classification), which subdivides the various types of goods and services into a total of 45 classes, is used for this purpose. The offer that is to be named with the new trademark determines the classes for which protection is to be obtained. Here, too, one should consider the strategic direction of the brand, including licensing .
- Example: If a clothing company develops a new brand, brand protection should initially be sought for class 25. If you want to sell other products such as shoes, watches or glasses under the brand name at a later date, protection must be extended to the classes of these products.
Once these questions have been clarified, it must be decided whether to carry out the research yourself or to commission a research company. The homepage of the German Patent and Trademark Office ( DPMA ) can help with this decision . An experienced brand specialist can, due to his training and activity, be better able to detect collisions between the new brand and existing brands and to provide information or take measures.
If no risk of collision is seen, then nothing stands in the way of the registration process.
Registration procedure (Germany)
The basis for obtaining trademark protection through a registration mark is an application that must be submitted to the German Patent and Trademark Office (DPMA). This application must contain information that allows the applicant to be identified, as well as a reproduction of the trademark and an indication of the goods or services for which registration is being requested ( trademark classification ). If the application has been received by the DPMA with the specified information, a so-called filing date is established ( (1) of the Trademark Act). This filing date determines the priority of the filing. Although this application can initially be submitted informally, the DPMA requires the use of the corresponding form, which can be submitted later ( (1) of the Trademark Act). However, for seniority it depends on the application, not on the form. Once the registration date for the trademark has been set, this application will be published (Section 33 (3) of the Trademark Act).(2) of the Trademark Act, see
The examination of absolute obstacles to protection at the DPMA then begins . These absolute obstacles to protection are defined in , and MarkenG. Essentially, it is checked whether the sign applied for as a trademark is at all suitable to distinguish the goods or services of one company from those of other companies ( differentiation suitability , § 3 MarkenG), whether the sign can be represented graphically (§ 8 Abs. 1 MarkenG) whether the mark is distinctive for the goods or services claimed (Section 8 (2) No. 1 MarkenG), as well as whether there is an interest in keeping the mark free for competitors (Section 8 (2) No. 2 MarkenG).
In addition, the trademark must not consist exclusively of signs or information that have become common in common parlance to designate the goods or services (Section 8 (2) No. 3 MarkenG). In addition, trademarks that are similar to or identical to a well-known trademark with an older seniority are not registered ( term of protection .Trademark Act). If this test does not lead to any complaints, the trademark is entered in the trademark register. The fee for a trademark registration in Germany is 300 euros, not to be confused with the renewal fee, see
If a brand is registered in the brand register, the brand owner may mark it with the ® symbol (from registered trade mark = registered trade mark or service mark ) next to the brand. However, there is no obligation to use this marking.
Registration procedure (international)
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 so-called 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.
Registration procedure (European)
The EU Intellectual Property Office was founded in Alicante by the European Community Trademark Regulation of the member states of the EU . This is responsible for the granting of community designs and trademarks ( Union trademarks ), which are valid in all EU member states. The administrative effort involved in a registration is comparable to that of a national registration.
In addition, there is another intergovernmental but EU-independent organization in Munich. The European Patent Office enables entries for 38 countries on the continent including Turkey on German and European trademark law.
Registration procedure (Anglo-American)
In contrast to the Central European, German-speaking area, there is a preliminary stage in Anglo-American with a legal status of registration. The Unregistered Trademark (TM) for goods and the Service Mark (SM) for services . The equivalent entry in both hemispheres of trademarks is then the Registered Trademark , the sign of which is the "R" in a circle (→ ®).
There is also another difference in the processing institutions. Both institutions, in the United Kingdom the Intellectual Property Office (United Kingdom) (IPO), based in Newport, South Wales , and in the USA the United States Patent and Trademark Office (PTO or USPTO) in Alexandria, Virginia , also have intellectual property protection Copyright to the task.
Similar to Anglo-American institutions, in the Russian Federation trademark rights are registered together with patents and intellectual copyright. The registry in question is the "Federal Service of Intellectual Authorship" (Роспатент-RussPatent). The names given also correspond to the three Anglo-American equivalents TM, SM and ®.
Brand monitoring is the systematic and permanent observation of the relevant brand registers for possible collision marks. It is recommended after successful registration in order to be able to defend the trademark against possible dangers.
“Even if the trademark has been successfully registered and there are no obstacles to (future) use, the trademark owner is far from finished and his lawyer is unemployed. Even now there are still many dangers lurking that can destroy the value of the brand "
Since 2000, an average of 70,000 new trademarks have been registered with the DPMA in Germany alone. Thus, the probability is very high that newly registered trademarks infringe the property rights of other trademarks that are already registered and therefore have prior priority. In addition, the office does not check whether there are already the same or similar trademarks of other trademark owners in the same or similar classes of goods and services.
This conscious or unconscious identity or similarity to existing brands leads to threats such as imitation, brand piracy , corruption, denigration, bootlegging , dilution or confusion. The brand owner of the existing, older brand usually only learns of the threat when it is too late, that is, when the new brand has positioned and established itself on the market at the expense of the old brand. Defending the rights of the old trademark can then be difficult and costly.
In order to be able to counter the weakening of the own brand at an early stage, specialized service companies offer so-called brand monitoring. Their subject is the trademark in its registered form. In the case of word marks, these are the word component (s) or syllables, in the case of word and picture marks the word and image components and in the case of figurative marks the graphic or the pictorial representation. This also applies to color and sound marks. The trademark is usually monitored in all trademark registers in which it is registered and in all classes of goods and services.
The monitoring companies check the relevant new brand registrations in the relevant registers and classes for so-called collisions at regular intervals. This means that brands that are identical to the surveillance brand and that are visually, acoustically or conceptually similar are systematically determined.
The client (company, lawyer or law firm) receives the monitoring results in the form of so-called collision notices or monitoring reports. These usually contain the name of the collision mark, representation of the mark, register, classes of goods and services, owner and representative of the collision mark as well as information on the objection periods.
For the trademark owner or his lawyer, the clash notice and the monitoring report are the basis for decision-making as to whether to proceed against the clash mark and what measures to take.
Objection and cancellation procedures
After the registration of the trademark has been published in the trademark gazette, owners of registered trademarks, usage trademarks or business names ( company names and work titles ) with an older seniority can object to the registration of the more recent trademark within three months ( MarkenG) and apply relative grounds for refusal do. The objection must be made in writing, but does not need to be justified. All that is necessary is that the challenged mark, the opposition mark (i.e. the mark or the business name with an older seniority) and the identity of the opponent are ascertainable for the DPMA . This information cannot be submitted after the three-month period has expired. A form from the DPMA should also be used for this purpose ( (2), MarkenV).
In the opposition procedure, which is a cursory, standardized procedure aimed at a large number of cases, the extent to which the identity (Paragraph 1 No. 1 MarkenG) or likelihood of confusion ( Paragraph 1 No. 2 MarkenG) between the younger mark and the earlier contradiction mark exists. The likelihood of confusion is checked for each product or service individually. The more similar the individual goods or services are to one another, the more dissimilar the brands or trademarks must be and vice versa. In addition, the distinctive character of the contradicting mark, i.e. its ability to be recognized by traffic for identical goods or services, is taken into account. As a result, parts of the list of goods and services of the younger brand or the entire younger brand can be deleted.
An objection can be based on the fact that an older, identical or confusable trademark or a well-known trademark is in conflict (= relative obstacles to protection) or that the trademark has been registered for an agent or representative of the trademark owner. If the opposition is based on an earlier registered trademark, this according to need used to preserve the rights have been, the owner of the later mark if this dispute unless between the registration of the earlier mark and the publication of the registration of the later Trademark or the decision on the opposition is only a period of less than five years (grace period, Abs. 1 MarkenG).Trademark Act also
Furthermore, the trademark can be deleted from the register at any time after its registration by means of a deletion procedure. Reasons for deletion are expiry ( DPMA deletion may decline because of or absolute grounds for refusal are requested. An action for deletion due to the forfeiture or existence of older rights can be brought before the civil courts .MarkenG), absolute obstacles to protection ( MarkenG), i.e. the brand itself is not suitable as an indication of origin according to MarkenG or relative obstacles to protection ( MarkenG), i.e. older brands or trademarks. When
Excursus: defense of non-use
The owner of the younger mark can also raise the objection of non- use in opposition proceedings .
In principle, a trademark must be used in a way that preserves the rights, otherwise it can be deleted due to expiry according to MarkenG. Rights can no longer be asserted from a trademark that is not used for the goods or services in question. In the first five years after registration, however, no use is required to enforce trademark law, cf. MarkenG. It makes sense to remove unused trademarks from the register, since protected characters should be available to the general public again when they are no longer needed. In contrast to a patent, which rewards inventive achievement, such an achievement cannot be recognized by a brand. As a consequence of this, the legislature has provided for the obligation to use, which, however, does not apply to young brands within the grace period.
If use is proven in the cancellation procedure for only some, but not for all, goods or services, the mark is canceled for the unused goods or services and remains with those for which use was proven. Thus the mark remains in the register - after all , the DPMA can not continuously monitor the use of a mark - but those who are claimed from the mark in the infringement proceedings can raise the objection of non-use, whereby the owner of the earlier opposition mark no longer has any rights can assert.
If the owner of the younger mark raises the objection of non-use in opposition proceedings, the opponent can of course make the use of his mark credible. The objection is only successful if the opponent succeeds in establishing credible use, which can turn out to be difficult in individual cases. In practice, it is therefore extremely useful for a brand owner to keep old packaging of their goods and the associated invoices and delivery notes - even beyond the statutory, in particular tax retention periods . A directly recognizable link between the brand and the goods or service must be recognizable, for example as a visible label or as a specific product description within an invoice. The joint printing of the goods with the brand name in a brochure without a direct link, however, presents difficulties in establishing credibility. Use must be clearly related to time periods and regions; Proof of having sold x pieces across Europe in the last four years is too imprecise. Affidavits are also permitted for substantiation purposes.
Individual obstacles to refusal (examples)
- Purely descriptive signs are not permitted because they do not differentiate between goods or services (lack of distinctive character) and they are also required by competitors to describe their products (need to be kept free). The petrol brand cannot be registered for fuel. On the other hand, it is possible to use the term petrol for clothing, as the word "petrol" is not a descriptive term for these goods. An exception in the German courts brands that beyond measure (example known Telekom ). Although “Telecom” should be a straightforward description of the telecommunications sector, the brand can claim protection for this area due to its popularity. In addition, action can be taken against the use of these trademarks for goods or services that cannot be confused with the goods or services of the already registered trademark if the use is unfair due to the image transfer of the famous brand (naming a pair of pants with "Telekom “Could be problematic, for example).
- Signs of an official character are also not registrable, even if the Red Cross is not active in the building materials sector. However, this depends on the individual case.
- Characters that are colloquially a generic term also represent a special case. Well-known examples are Tempo , Zewa , Föhn , Nutella , Tesa-Film / TIXO , Uhu , Gripzange , Thermos flask or Jeep . Such terms can lose their trademark protection, as the sign no longer fulfills the trademark's function of origin if the consumer is not consistently informed of the quality of the trademark. Therefore, especially in these cases, the trademark owner is forced to consistently enforce his trademark and thus prohibit the unauthorized person from using the trademark. Since, as a rule, large corporations have brands with such a level of awareness, which are then forced to take action against smaller companies, there are often cases with a lot of media attention.
- Example 1: Sony lost trademark protection for its Walkman in Austria.
- Example 2: " Lotto " is a generic term for number games and not a brand, not even YELLOW PAGES.
- Example 3: Deutsche Börse permanently indicates in its publications that the DAX is a registered trademark. In doing so, it makes it clear to the public that the DAX is a “product” from a certain “manufacturing company” and prevents the term “DAX” from becoming a generic term.
- Example 4: So that Google does not run the risk of becoming a generic term for search engines, the verb googeln , which was first recorded in the dictionary in 2004, was restricted in 2006 to “ search the Internet with Google ”.
- Example 5: The law blog trademark is not registrable for a legal blog.
- The unpronounceable letter combinations that were previously only allowed in traffic regulations ( e.g. the brands 4711 , BMW are known ) can now be registered in practice without any problems. Single letters are also possible in individual cases.
Rights from a trademark (trademark protection)
The trademark owner has a right to cease and desist against the trademark use of the trademark against an infringer if the trademark used is identical or confusingly similar to the registered trademark and the trademark is used for identical or similar services or goods for which the trademark is registered (colloquial: Brand piracy ”). The infringer can demand omission, elimination by destroying the unlawfully branded goods or at least removal of the brand, information about the scope of use and compensation . Compensation can be calculated in three different ways: The trademark owner can demand payment of an appropriate license fee , surrender of the infringer's profit or compensation for his own loss of income. If the injured party applies (see criminal complaint ), criminal prosecution will also be initiated.
If rights are asserted from the registered trademark, these must also be used, unless the trademark is still within the grace period according toMarkenG of five years, which begins after registration.
According toSentence 1 of the Trademark Act, trademark protection arises from the entry of a sign as a trademark in the register kept by the patent office. Therefore, the public can find out which marks are protected and which are not. For this purpose, the German Patent and Trademark Office maintains a publicly accessible register in which all bibliographic data, including the name of the trademark owner, are stored.
The question of inspection of files for trademark applications (i.e. trademarks not yet registered) was last dealt with in the BGH decision of April 10, 2007, I ZB 15/06. Accordingly, there is a balance between the legitimate interest of the applicant and the applicant's interest in secrecy (including the right to informational self-determination). The trademark applicant must explain the reasons that speak against inspection of the files.
Term of protection
The term of protection is not limited in principle. In Germany, as well as in Austria and Switzerland - here only since April 1, 1993, all trademarks previously applied for have a 20-year term of protection - it is ten years from the date of application, but can be paid in due time ( in Germany € 750) can be extended as often as you like for a further ten years. The trademark protection therefore only expires if the fee is not paid, if the trademark is not used or if the trademark becomes a generic term .
In the decision of July 21, 2005 (Az. I ZR 293/02), the Federal Court of Justice ruled on various registered word and word / figurative trademarks of the Otto retail group and finally sentenced the company to deletion due to non-use. Here the brands were only placed on catalogs and mailing bags , but not on the goods themselves. The Federal Court of Justice did not see this as being a suitable use of the brand in order to preserve the rights.
Transfer and transition
The right to a trademark can be transferred to another owner in accordance withTrademark Act or transferred by way of legal succession. The change of ownership can apply to all registered goods and services or only to parts thereof. The registration of the change of ownership with the German Patent and Trademark Office does not incur any fees. If only parts are transferred, however, a fee of EUR 300 must be paid.
Characters in unicode
The following brand-related characters can be found in Unicode :
|U + 2122 (8482)||™||Trademark sign||superscript TM|
|U + 00AE (174)||®||Registration mark sign||Circled (capital) R|
|U + 2120 (8480)||℠||Servicemark symbol||superscript SM|
|U + 1F12E (127278)||?||trademark||Circled wat|
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- Austrian trademarks , Trademark PreCheck, Austrian Patent Office (subject to a charge)
- electronic database of property rights , Switzerland Federal Institute for Intellectual Property (free of charge)
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