Trade Mark Protection
What is a trade mark?
As a rule, a trade mark is used to identify the goods and/or services of an enterprise. Signs suitable for distinguishing goods and/or services of an enterprise from those of another enterprise can be protected as trade marks. These can be, for example, words, letters, numbers, images, but also colours, holograms, multimedia signs and sounds.
Trade mark protection arises from registration of a trade mark applied for in the Register of DPMA. Trade mark protection may also arise from the level of recognition acquired due to intensive use of asign in trade or by its general reputation.
In addition to the classic individual trade marks, there is also the trade mark category of the certification mark. The certification mark is characterised above all by the fact that, unlike the individual trade mark, its focus is not on the function of indicating origin but on the guarantee function.
Exclusive right of use
The most important links to the trade mark application
Upon registration of the trade mark, its proprietor acquires the exclusive right to use the trade mark for the protected goods and services and deal with the trade mark. Trade marks may anytime be sold and transferred by their proprietor. The proprietor of a trade mark may also grant another person the right to use their trade mark, as trade mark license.
A trade mark may be renewed indefinitely. It may have eternal life, so to speak. However, the trade mark will be cancelled if the renewal fee is not paid after a respective ten-year period.
Absolute grounds for refusal
Not all signs can be protected as trade marks. In particular, those signs are excluded from registration that si" cannot be registered for the goods "fruits" or “bus tours” for the service “transport of people”. During the registration procedure, the DPMA does not check whether another trade mark already exists that is identical or similar to your trade mark you have applied for. After registration of your trade mark, proprietors of earlier trade marks can file an opposition against your trade mark. That is why you should conduct a search before filing an application to find out whether your intended trade mark might infringe earlier rights.
The DPMA examines the trade mark application for absolute grounds for refusal. Absolute grounds for refusal are for example:
- lack of distinctiveness
- descriptive terms that must be kept freely available for general use
- danger of deceiving the public
- an emblem of state included in the trade mark
- offence against public policy or accepted principles of morality
Signs will not be registered, if they do not determine the clear and precise subject matter of protection and, above all,signs will not be registered if they lack any distinctiveness or if they merely describe the goods and services concerned.
For information on the requirements for the distinctive character of word and figurative marks containing descriptive/non-differentiating words, see, inter alia, the Common Communication on the Common Practice of Distinctiveness – Figurative Marks containing descriptive/non-distinctive words (1,5 MB).
We have compiled initial information about trade mark protection on these pages. Thera are good reasons for a national trade mark application. Our factsheet Eight good reasons for filing a national trade mark application will tell you which.
Should you have any questions, please refer to our information leaflets or, in cases of doubt, to the Trade Mark Act. More information is available in our “Trade Marks” brochure.
Last updated: 22/04/19