Trademark Law (Germany)

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The trademark law of the Federal Republic of Germany is part of the trademark law that protects the designation of products in business dealings. In turn, trademark law is part of commercial legal protection .

overview

Trademark rights can exist at national, European and international level. A distinction is made between word marks (the written name), figurative marks (for example the graphic representation of a logo) and combined word- figurative marks . Rarely also gives you some color marks , sound marks , smell marks and Haptic brands . Accordingly, there are national brands , EU brands and IR brands. In order to effectively safeguard trademark rights, the first step is to determine the likely territorial scope of the future trademark owner. With regard to activities in the globally accessible Internet, it can make sense to extend trademark protection beyond your own country.

In the second step, a trademark search in the relevant trademark registers of the countries in question must be used to determine whether older rights already exist in the country in question that exclude new trademark protection.

If this is not the case, the third step is to tailor the brand to the special needs of the future brand owner. This involves both the selection and design of the brand itself and its correct classification based on the classification of goods and services according to the Nice Classification , so that the brand applicant is optimally protected in his future activities with the brand.

Finally, in the last step, a trademark application can be worked out for the trademark selected in this way and deposited with the trademark office concerned while maintaining priority. Now you have to wait for the three-month objection period before the trademark is formally final and can be used in business transactions - the ® mark can now be added to the brand name. Upon successful completion of the registration process, the applicant receives a trademark certificate.

Collision of trademark law and domain law?

The question of whether a registered and protected trademark can prevent the registration and use of an Internet domain can pose particular problems . In general, the following applies: The authorized trademark owner can demand that the unauthorized domain operator cease to use and transfer the domain. However, only if the domain is used for the goods and services protected by the brand. Further claims are possible (e.g. compensation), but depend on the existence of negligence or even intent on the part of the unauthorized domain operator, whereby strict requirements are placed on the observance of the necessary care in commercial legal protection.

term

With the law on the protection of trademarks and other identifications ( MarkenG ) , which came into force at the beginning of 1995 , the term trademark is legally defined in Section 3 (1) MarkenG as follows:

"As a trademark, all signs, in particular words including personal names, images, letters, numbers, audio symbols, three-dimensional designs including the shape of goods or their packaging, as well as other presentations, including colors and color combinations, that are suitable for the goods or services of a company can be protected to distinguish from those of other companies. "

- (§ 3 Abs. 1 MarkenG)

In a ruling from 2005, the European Court of Justice stated:

"The main function of the trademark is to guarantee the consumer or end user the original identity of the marked goods or services by enabling him to distinguish these goods or services from goods and services of other origin without risk of confusion."

According to this, all signs that are generally suitable for differentiation can be protected. Since trademarks are registered for specific goods or services, only trademarks that do not stand in the way of an absolute barrier to protection can be registered . This means that the brand must be able to be represented graphically ( Section 8 (1) MarkenG), that it must be distinctive for each of the goods or services claimed and that it cannot be used by competitors to describe their goods or services, i.e. H. there must be no need to keep it free . A product itself cannot be the brand. So what is formed as a result of the product does not represent the brand of the product at the same time. In addition, the MarkenG also provides for further so-called absolute obstacles to protection, but these do not play a major role in practice. Only the so-called bad faith should be mentioned here, according to which the registration of a trademark can also be refused if it was obviously registered with bad faith - for example to block competitors.

Trademark protection

Trademark protection according to § 14 MarkenG arises either through entry in the trademark register (so-called register mark ), through use in commercial transactions and obtaining public recognition within the relevant public (so-called usage mark ) or through notorious awareness within the meaning of Art. 6 bis of the Paris Convention ( so-called notoriety mark ), § 4 No. 1–3 MarkenG.

The “strength” of a brand depends on the seniority and the “distinctiveness” of the brand.

What exactly is required for the establishment of a traffic validation depends on the circumstances of the individual case. As a rule, it is sufficient if a not inconsiderable part of the traffic can assign a specific product or service to a specific company. However, the majority of the brands are the register brands, since in the event of a dispute extensive evidence is required as to whether a brand has really achieved market recognition.

Registration fees

The current fees for registering a trademark with the German Patent and Trademark Office are 300 euros or 290 euros for electronic applications. This fee includes the registration of a trademark for up to three classes . With each additional class, the fee increases by a further 100 euros. After the trademark protection has expired (after 10 years) it is up to the trademark owner whether the trademark protection should be extended. A fee of an additional 750 euros (for up to three classes) will be charged for the extension.

See also

literature

Web links

Individual evidence

  1. ↑ Federal Court of Justice, judgment of November 22, 2001, Az .: I ZR 138/99 . Admody Lawyers Public Company. Retrieved May 10, 2017.
  2. ↑ ECJ, judgment of October 6, 2005 - C-120/04 . Website lexetius.com. Retrieved March 12, 2012.
  3. ^ German Patent and Trademark Office : Trademarks. An information brochure on trademark protection. Revised edition, October 2019.
  4. ↑ Peter Krebs: Outline proposal for the creation of trademark protection based on traffic validity (usage trademark) University of Siegen, March 4, 2020.
  5. ↑ Florin Brückner: Trademark protection through traffic validity. Retrieved May 16, 2020.
  6. ↑ Andreas Böhm: Well-known trademark, § 4 No. 3 MarkenG. Retrieved May 16, 2020.
  7. ↑ Guido Kluck: Older trademark without registration vs. Younger brand with registration: who wins? November 6, 2018.
  8. ^ BGH, judgment of March 12, 1969 - I ZR 32/67
  9. ^ German Patent and Trademark Office: Fees for trademark applications .