Trade Mark Protection
Modernised: What has changed in trade mark law
Since early 2019, the amended Trade Mark Act has been in force, which contains many new features: Now you can apply for registration of modern types of trade marks such as noise-like sound marks, multimedia marks and holograms. Neutral certification companies can now obtain trade mark protection in Germany for their quality seals or test labels as certification marks. In addition, the calculation of the term of protection of trade marks has changed. This is important if you want to renew your trade mark after ten years. You can read more about this in the information on the Trade Mark Law Modernisation Act (Markenrechtsmodernisierungsgesetz).
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 a sign 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
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 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: 28 April 2021