A trademark serves to provide an indication of the origin of a product or service. The exclusive right relating to the trademark is intended to enable the holder to identify his goods and services as being from his business, distinguishing them from those of rival goods and services from other companies, and show them to their advantage. In the context of advertising, the trademark is intended to give a product or service a particular look.

A trademark signifies quality and is intended to produce an effect of recognition in the buyer to encourage him to buy this particular product or to choose this particular service provider out of the diverse range of goods and services available on the market. This applies both to consumer products and investment goods.

The life of a trademark property right is initially ten years and can be extended as often as desired by a further ten years so that a trademark can represent an enduring company value.

The trademark is made up of two components:

  • The identifying mark, which is what one generally understands the trademark to mean , e.g. a word, a sentence, a graphical representation such as a picture, or even a color, or frequently a combination of these, and
  • The product or service for which the identifying mark is registered.

The trademark is a property right that has been examined in respect of absolute grounds for refusal and hence has a certain legal security. This means that the creativity involved in selecting the identifying mark is set legal limits for the common good; these are examined as part of the registration procedure by the German Patent and Trademark Office (DPMA – Deutsches Patent- und Markenamt). This is intended to ensure, for example, that by granting a monopoly – which in some cases is unlimited in its duration – other market players are not being unreasonably restricted in their freedom to operate.

An examination of relative grounds for refusal, however, i.e. whether a trademark conflicts with existing trademarks and other property rights, does not take place upon registration by the German Patent and Trademark Office (DPMA) but only later on, on the initiative of third parties. Consequently it is recommended that, prior to an application, research be performed into existing trademarks which would constitute a conflict.

Furthermore, a trademark – after a five-year period of grace – is subject to the obligation of serious use. If this does not happen, then at the request of third parties cancellation may occur for at least part of the registered goods and services.

There is the possibility both of registering a German trademark with the German Patent and Trademark Office (DPMA) and registering a community trademark valid throughout the EU with the Office for Harmonization in the Internal Market (OHIM) in Alicante.

© Copyright Dr.-Ing. Christian Holz. All rights reserved.