What are the benefits of an essay

Essay: The advantages of a brand

The protection of trademarks is gaining increasing attention from German medium-sized businesses. While in the past it was mostly the large corporations who registered their products and business names as trademarks, there has now been a strong increase in trademark registrations by small and medium-sized companies for several years. This article is intended to give a brief overview of the advantages and the process of trademark registration. At the same time it is shown which alternative possibilities there are to obtain trademark protection. Finally, the reader receives information on how to defend the brand against acts of infringement by third parties (warning).

I. Advantages

The position as the owner of trademark rights is advantageous for every entrepreneur. In this way, a clear differentiation is first achieved from the goods and services of competitors, so that anonymous goods become a branded article and the anonymous service becomes a customizable branded service. In addition, the brand has a considerable advertising impact, as the customer can identify the product immediately. The guarantee function of the brand is also important, since with the help of the brand the audience's idea of ​​constant or improved quality is consolidated. The brand also represents a part of the company's value, which grows steadily with increasing awareness. The economic value of the “Mercedes” brand alone is currently estimated at around $ 21 billion (front runner Coca-Cola $ 67 billion). Particularly in the case of small and medium-sized companies, the decisive factor for a trademark application is the protection against injunctive relief claims by third parties, which are regularly enforced by means of warnings. The registered trademark grants protection to the effect that your own business appearance can be retained in the desired form without third parties being able to prohibit the use of your own business or product name. At the same time, the registration of the trademark gives the owner an exclusive right of use and - associated with this - a right to prohibit others.

Brand protection should therefore be considered by every self-employed person in order to secure his business activity. Caution: The use of third-party brands (also in the area of ​​similarity!) As a company or product / service name can still be prohibited by the brand owner many years after the company was founded, which in addition to considerable claims for damages also requires the immediate cessation of business activities under the third-party brand - and thus often the complete abandonment of the business.

II. Three ways to obtain trademark protection

Protection under the German trademark law can be achieved in three different ways. The safest way is to register the trademark in the register of the German Patent and Trademark Office (DPMA). In addition, trademark protection is obtained through the use of a product or service name with traffic validity or through the use of a business name. Ultimately, trademark protection also applies to well-known trademarks without any further requirements being necessary.

Entry in the trademark register requires the formal registration process to be carried out. Before submitting the official registration form, a trademark search should be carried out to determine whether there are any earlier trademark rights to the term to be registered. It should be noted here that around 1,500,000 trademarks are currently registered for the protection area Germany. If the research comes to the result that third-party trademark rights do not exist either in the area of ​​identity or similarity, the trademark should be registered as soon as possible. There is freedom of choice between different forms of brands. The most common form is likely to be the word mark, followed by the word / figurative mark and the pure figurative mark. However, it is also possible to register slogans (“Not always, but always more often”), letters (AEG, BMW), numbers (007, 4711), colors (blue and white for ARAL), tone sequences (Telekom jingle) or three-dimensional shapes (Odol bottle). During the registration process, the classes of goods and services in which the trademark is to be registered must be named. For the area of ​​information technology, for example, classes 9 (data processing equipment, computers), 38 (telecommunications) and 42 (design and development of computer hardware and software) could be considered. There are a total of 45 classes of goods and services, so that identical names of goods can also enjoy brand protection (bounty for confectionery, bounty for household paper). The official fees for trademark registration in the normal procedure are at least EUR 300.00 for three classes. Each additional class incurs additional costs of EUR 100.00.

After receiving the application, the DPMA examines the registered trademark for its protectability. Sufficient distinctive character is particularly important here. Descriptive information, for example, cannot be protected because it lacks any distinctive character and has to be retained for general use. The “Best Icecream” or “Marktfrisch” brand for food is therefore not eligible for protection. According to established case law, distinctive character only exists if the mark 1. cannot be assigned a descriptive term that is in the foreground for the specific goods or services and 2. it is not a common word in German or a well-known foreign language that is only used as such and is not understood as a means of differentiation.

If the DMPA has no concerns about the registration of the trademark, the entry is made in the trademark register and published in the trademark gazette - without checking whether the trademark rights of third parties have been infringed. During the current three-month period, owners of older trademarks have the opportunity to file an objection against the new registration, which would result in an official opposition procedure. If, however, no objection is raised, the applicant will receive his trademark certificate by post after the deadline and can now officially use the ® symbol behind the trademark.

III. Three ways to obtain trademark protection

The trademark protection by use with traffic validity is much more complex to obtain than that by entry in the trademark register. It is necessary that the business label is used so long and extensively in business transactions that it has acquired recognition as a brand within the relevant public. In the case of distinctive signs (e.g. "Elixia"), traffic validity can already be assumed to be around 30%, which means that this percentage of the addressed target group can assign the designation to the specific company. In the case of less distinctive signs ("Tabac original"), the percentage should be higher (approx. 60%) in order to be able to speak of traffic validity.

The problem of obtaining trademark protection through use with traffic validity is the burden of proof. In this way, the owner of a registered trademark can simply demonstrate his ownership in court by presenting the document.

The owner of a usage mark, on the other hand, has to prove in detail by submitting a detailed and representative survey report that the above percentages have also been achieved, i.e. the designation is a term within the target group.

The situation is similar with well-known brands. Here, trademark protection is achieved solely by the fact that the designation is generally known in the general public, i.e. the traffic validity has reached approx. 90%. However, the burden of proof for this again bears the alleged trademark owner.

IV. The right course of action

If an entrepreneur wants to ensure that his product or service description is not vulnerable, he should register it for the trademark in good time. For this it is first necessary to be clear about the spelling and graphic representation of the name. You should then have the name checked by a research provider (e.g. brandlaw.de) to see whether it is already in the trademark register for the selected classes in an identical or similar manner. If a search is not carried out, the application could fail even before the registration because trademarks of third parties are overlooked and their owners take action against the applicant by means of a fee-based warning, since the application is already recognized as an infringement.

The search results should then be checked by a trademark attorney to determine whether the similar trademarks found are likely to cause confusion with one's own trademark (risk of confusion). If the lawyer gives the all-clear, you should register with the DPMA at short notice, as the filing date is decisive for priority over other applications. The total costs of this procedure (excluding registration fees) are between EUR 700.00 and EUR 2,000.00 net for the examination and registration of a trademark, depending on the size and status of the research providers and lawyers commissioned.

Once the trademark is entered in the trademark register, there is a further risk: the later, unnoticed registration of an identical or similar trademark by a third party. The DPMA does not check the correspondence with existing trademarks in the register and enters the new trademark without further ado (with the exception of notorious trademarks). The owner of the earlier trademark does not find out about this and can no longer take action against it after five years. After registering a trademark, it is therefore advisable to have it regularly checked for infringement by third parties by means of brand monitoring. If someone then registers their own brand again, the owner of the provider (e.g. brandaide.de) will immediately be informed of this and can take appropriate measures. V. Defense of the brand

If the owner of a trademark now discovers that a third-party company is using an identical or similar designation for the same goods or services without authorization, the former should take legal action against this. Objections as well as injunctive relief and cancellation claims can be considered as measures

The objection only applies to trademarks that are currently in the registration process. In this case, the objection to the registration of the third-party trademark leads to an official procedure that is concluded by decision of the DPMA. For cases in which the violation of trademark rights occurs before or after the registration of the third-party trademark, the older owner is entitled to injunctive relief and cancellation claims, i.e. the latter can demand that the opponent cease to use his name and delete the younger trademark from the trademark register.

The injunctive relief claims are often asserted by means of a warning, with which the opponent is requested to refrain from using the third-party trademarks, to confirm this in writing and subject to criminal prosecution, and to bear the costs of the lawyer. If the designation used is actually identical or can be confused with the registered trademark of the other party, it makes sense to make this declaration, as the amount in dispute is regularly set at EUR 50,000.00 in legal proceedings and thus triggers high legal and court fees. Before submitting a cease and desist declaration, however, a lawyer should check the legitimacy of the other party’s claims for cease and desist, as unjustified mass warnings can also occur.

Important for the IT entrepreneur:

The own brand not only represents a significant economic value in the balance sheet of the company, but also regularly helps the merchant to fill the name of his goods or services with quality and credibility. At the same time, the brand leads to a feeling of security, as your own business labels are invulnerable to others. Every entrepreneur is therefore advised to have his goods and services as well as his company name protected under trademark law.

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