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Trademarks

A trademark can protect the name of an enterprise, a product and a service as well as slogans and the like. Besides word marks and figurative marks, modern types of marks can be registered, e.g. sound marks or the shape or packing of goods. A trademark application provides the advantage that a register defines who is proprietor of the trademark and therefore entitled to use the trademark.

The information about trademarks is divided into the following sections:

General Information

As is well known, a trademark can protect the name of an enterprise, product or service. Of course, a logo can be protected as well. Further, a slogan and under some circumstances the form and the packing of goods can be registered as trademarks. Under some circumstances it is possible to protect colours and colour compositions . Provided that the renewal fees are paid, a trademark protection can be extended as long as desired.

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Types of Marks

Beside the classical word marks and figurative marks, further types of marks have recently been established. These include sound marks by which a sound sequence, a jingle and/or a slogan can be protected. It is also possible to protect the shape of goods and packing of goods as long as the shape does not result from the nature of the goods, the shape is not necessary to obtain a technical result or the shape does not give the good a substantial value.

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Anforderungen

Advantages of Registering a Trademark

A trademark registration states in a public register that a name, a slogan, a logo etc. is protected, since when the protection is effective and who can claim the trademark. In practice, the following advantages arise:

  • Competitors cannot establish any rights from the use of the same name, the same slogan or the same logo after the application date of the trademark, if the trademark is registered by the Office and has been put to genuine use by the proprietor.
  • After the registration of a trademark, competitors must not use a name, slogan or logo that is identical to the registered trademark or can be confused with the registered trademark.
  • Additionally, a registered trademark defines who is entitled to use the trademark, which is helpful not only in conflicts with competitors, but also with (future or former) business partners.
  • A registered trademark can also secure the rights for a domain.
  • Finally, the appropriate application of trademark rights can ensure that an elaborately created name will not become a generic term which is free for use by everybody.

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Registration Requirements

Only signs which are capable of being represented graphically can be registered as a trademark. It is not possible to register a trademark merely comprising signs which are devoid of any distinctive character, which consist exclusively of signs or indications which may serve to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or service, or other characteristics of the goods or service, or which consist exclusively of signs or indications which have become customary in the current language.

The form of a three-dimensional trademark must not result from the nature of the goods, must not be necessary to obtain a technical result or must not give the good a substantial value.

A colour mark per se can generally only be registered if it has acquired a distinctive character by use. If the colour mark per se comprises a plurality of colours, generally the particular arrangement of the colours has to be registered. A graphic representation consisting of two or more colours, without contours and claiming a plurality of arrangements of the colours can generally not be registered.

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Munich

Trademark Application in the European Union or Germany

A trademark application for Germany can be filed with the German Patent and Trademark Office (GPTO) in Munich. A Community trademark application for all countries of the European Community can be filed with the Office for Harmonization in the Internal Market (OHIM). It is advisable to file a sound mark with the OHIM, since it accepts mp3-files.

Within 6 months a priority of a first filing can be claimed when filing the trademark application for the European Union or Germany. For a German trademark application an exposition priority can be claimed if the trademark was presented for the claimed goods and services within the last 6 month on a trade fair which was admitted by the German Ministry of Justice in the Federal Law Gazette for providing an exhibition priority.

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Search

A trademark must not be identical or similar to a registered or used trademark for the claimed goods and services. This requirement is neither verified by the GPTO nor the OHIM. Accordingly, prior to filing a trademark application a search for identical or similar marks should be carried out, since already the trademark application can be interpreted as an intention to use such mark and can give rise to a costly cease-and-desist warning letter.

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Opposition

Markenpirat

Within three month following the publication, an opposition against registering a trademark can be filed. Against registering a German trademark opposition can be based essentially on a filed or registered German trademark, a Community trademark or a non-registered trademark that is used in the course of trade and obtained more than mere local significance. Trademark PiratOpposition against registration of a Community trademark can be based on a filed or registered Community trademark, national trademark of a member state of the European Union and a non-registered trademark that is used in the course of trade and obtained more than mere local significance.

The opposition proceeding is carried out by the respective Office (OHIM or GPTO) and is compared to an action at a Civil Court relatively cost efficient. Opposition decisions can be appealed at the Federal Patent Court or at the Boards of Appeal of the OHIM.

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Monitoring of Foreign Applications

In order to protect the trademark against identical or similar trademark applications monitoring of foreign applications is recommended in order to file oppositions against foreign registrations in time.

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Farbiges Puzzle

Genuine Use

Both, the German trademark act and the European Community trademark regulation require proper usage (genuine use) within five years after registration. If the trademark is not used for a term of 5 years, it can be cancelled upon request by a third party and it cannot be enforced. Therefore, it is important to keep documents for proving genuine use of the trademark. Such documents include inter alia goods, packages, photos of goods and photos of packages on which the trademark is attached or used. Prints of the internet site, photos of tools and buildings for providing the service on which the trademark is attached or used can prove genuine usage of the trademark for a service. Further, offers, invoices, brochures, catalogues, advertising material and the revenues achieved by usage of the trademark must by recorded to proof genuine use of the trademark.

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Cancelation Proceedings

A German trademark can be cancelled upon request in a comparably cost efficient cancelation proceeding at the German Patent and Trademark Office (GPTO) for absolute grounds, if the trademark merely comprises signs which are devoid of any distinctive character, which consist exclusively of signs or indications which may serve to designate characteristics of the goods or service, or which consist exclusively of signs or indications which have become customary in the current language. Further absolute grounds for cancelation are that the trademark results from the nature of the goods, is necessary to obtain a technical result or gives the good a substantial value. A German trademark can also be cancelled by request at the GPTO, if it was not used for a period longer than five years before filing such request. A German trademark can also be cancelled at a cancelation proceeding at the GPTO, if it was registered in bad faith.

A German trademark can be cancelled by a court if the German trademark has not been used for more than five years before filing the court action and if the trademark can be confused with an older trademark.

A European Community trademark can be revoked in a nullity proceeding at the OHIM or by a counterclaim during enforcement for the above mentioned absolute grounds, if the trademark can be confused with an older trademark, if the Community trademark was registered in bad faith or if the Community trademark has not been used for five years before nullity proceedings or enforcement.

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Registrierte Marke

Trademark Infringement

If a younger trademark is identical to or can be confused with a registered trademark, injunction and damages can be claimed. Furthermore, information on the origin and distribution networks of the goods or services which infringe the trademark and the names and addresses of the producers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers can be claimed. It is also possible to claim information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question.

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Defence against Alleged Trademark Infringement

Defence against alleged trademark infringement is possible by arguing that the trademarks cannot be confused for the products and services in question, the older trademark has not been used appropriately and the trademark is devoid of any distinctive character. Further, exhaustion can be claimed if the goods have been brought into market within the European Union.

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