Intellectual Property and Trademark Law
The term “commercial property protection” already says it: it is about the legal protection of commerce. Now how to protect individual traders in the exercise of their trade, like a ‘trade’? By granting property rights. A simple example: trademark law gives the trader the legal power to determine, prohibit or permit the use of his trademark by third parties.
The term “property right” is a generic term for all rights to which anyone who is commercially or creatively active is entitled with respect to the intangible assets they have created. Industrial property rights generally give the beneficiary the exclusive right to use the protected object, i.e. to exploit it to the exclusion of all third parties. An exploitation can take place by granting certain third parties the right to use the protected object (vulgo: granting a license) or by exclusively reproducing and distributing the protected object itself. Thus, anyone who develops a trademark, designs a chair, invents something, writes a book, enjoys legal protection, either on the basis of the creative act alone (e.g. the author) or on the basis of registration (e.g. the trademark).
Industrial Property Rights
The term “industrial property rights” refers to that part of property rights which is of particular importance to individual industries. There were industrial property rights that only came into existence if they were used in an industrial or commercial enterprise; today, property rights can mostly exist even without an industrial or commercial enterprise. In particular, patent, trademark and design law, but also the Semiconductor Protection Act or the Plant Variety Protection Act regulate the prerequisites, content and limits of the exclusive rights to which the rights holder is entitled..
The law of fair trading is also included in the protection of industrial property to the extent that it protects commercial activity in the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb –UWG), although it does not grant the trader any intellectual property rights (protection of performance under competition law), but ensures that the competitor does not cause him any damage by misleading the clientele. The law on protection of trade secrets (Gesetz zum Schutz von Geschäftsgeheimnissen) also protects the trader, namely from betrayal of his trade secrets without having a right to the secret itself.
For historical reasons, copyright (Urheberrecht) is not counted among industrial property rights, since its primary purpose is to secure for the author the commercial fruits of his creative work, not to protect plain and ordinary trade. An effective distinction from industrial property rights is difficult to make given the economic importance that the exploitation of copyrights has come to have and the fact that copyright protects the entire exploitation chain, but such distinction is above all not necessary. Property rights always have only one direction of action: the infringer against whom action is to be taken. Any right holder shall exercise all the rights available to him, regardless of whether he is the author or the proprietor of an intellectual property right..
Industrial property rights and copyright and related property rights are grouped together under the term intellectual property – often referred to simply as IP (Intellectual Property) for short.
The diversity of intellectual property as well as its flanking by the competition law is shown very impressively by this drawing of the user Cfaerber, who published it under Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0)Lizenz on Wikimedia Commons and is reproduced here unchanged..
Trademark Law
Trademarks – formerly also known as brand names – are an internationally used industrial property right for signs that serve to make the origin of a product or service perceptible. This brand function is called the origination function. It serves to,
… guarantee to the consumer or end user the identity of the origin of the goods or services designated by the trade mark by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin.
(Judgment of the European Court of Justice in the case C-206/01 12.11.2002, Tz.48 –Arsenal FC)
The trademark gives the owner the legal power to prohibit its use by third parties. In this way, the owner ensures that his investment in his products is not diluted by inferior imitation products damaging his reputation as well as that of the product, and the customer can tell from the brand that he is really buying the ‘original’.
Trademark protection can be obtained not only on graphic signs: in particular, words including personal names, images, letters, numbers, sounds, three-dimensional designs including the shape of a product or its packaging, and other get-ups including colors and color combinations can be protected if they are capable of distinguishing goods or services of one company from those of other companies.
In principle, trademark protection arises through registration as a trademark in a register filed with a trademark office, be it the DPMA – German Patent- and Trademark Office or the EUIPO; but also the use of a sign in the course of trade, insofar as the sign has acquired a reputation as a trademark within the public concerned, or through the well-known character of a trademark. The registration of an already used trademark by the user is not only possible, but also reasonable even if the trademark has already gained a certain reputation within the involved public. This is because the owner of a registered trademark does not have to prove that it has a reputation. The owner of a registered trademark also has the officially established filing date at his disposal when it comes to the question: who has the earlier rights to the trademark. This is because in the event of a conflict, the demonstrable priority, i.e. the answer to the question of who was the first to demonstrably use this trademark, is decisive. This is because trademark protection is only available to those who have priority.
Dr. Wente has filed quite a few trademarks with both the DPMA and the EUIPO, overcoming opposition in the process. He has both defended against attacks from third party trademarks against trademarks of a client and prosecuted infringing acts of third parties.
If you need help with the multitude of given possibilities to protect your company, your know-how, your products, the law firm of Dr. Wente is the right contact for you.
