Trademark Law

By using a trademark a producer is able to differentiate his goods from those of the competitors. But the circle of users can, due to the trademark, not only differentiate the goods and services, but also connect a certain image with the companies standing behind these goods and services. Nowadays, consumers do not only pay attention to the price and quality of the goods, but more and more also to the image, which is carried by the trademark. The term "trademark consciousness" gains more and more importance.

Consumers trust a known and serious trademark. That means for the user of the trademark, that many consumers prefer his product to other perhaps not worse products of the competitors, and perhaps even pay a higher price, just because of the trademark.

The application and above all the marketing structure of a trademark are therefore absolutely indispensable for a successful marketing strategy of an enterprise.

According to the trademark law all signs can be protected as trademarks that are suitable to differentiate goods or services of a company from those of other companies. The entrepreneur can file a trademark for his products at the German Patent and Trademark Office. The owner of a registered trademark can forbid every third person to use an identical or a confusingly similar trademark for identical or similar goods and services. The owner of the trademark can, if necessary, defend his rights judicially. Usually a warning out-of-court is expressed. In case that the infringer does not answer or that he is evasive, the owner of the trademark should try to achieve an interim injunction.

A trademark is not only important to forbid third persons to use an identical or similar trademark. Also the contrary case has to be taken into consideration. In case that somebody uses a product mark without having it registered as a trademark or without being especially known, it may happen, that another person registers the trademark later and then forbids him to use it. In case that it cannot be proved that this other person acted in bad faith, the older but not protected mark has to be given up. Nowadays this risk is not insignificant, as the cases of trademark piracy appear more and more in the private as well as in the business area.

The more unique a trademark, the more powerful. A trademark is not unique, when it only describes the goods and services for which it is registered. Obvious marks weaken the own position. Besides, the Patent and Trademark Office rejects registrations that have to remain available. An example: a baker cannot register the word "bread" as a trademark for bread. On the one hand, the trademark just describes the product; on the other hand, the term naturally has to remain available, as all other bakers have to be allowed to call their bread "bread".

As a rule it is useful to choose a creative term as possible for the products, which is not obvious. An example is the trademark "Apple" for computers. This term has nothing to do with computers and is therefore not obvious.

Before you register a trademark, you should make a search for older trademarks or older company names to find out, whether there is yet another company, which has protected confusingly similar trademarks.

The protection of a trademark is basically unlimited. The registration of a German trademark is made initially for 10 years and can be prolonged as often as you like by further 10 years.

You can also register a so-called Community trademark in addition to a national German trademark. By a single registration at the Office for Harmonization in the International Market in Alicante you can achieve protection in all EU-member states. Besides, there is also an international registered trademark (IR). By this registration you achieve again protection in several countries (also outside Europe) by one single application.

The individual trademark systems do overlap, so that a consultation beforehand would be wise so that you do not have to accept legal disadvantages or pay too much.
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